Saturday, July 31, 2010

Matthew Yglesias on the filibuster

Sandy Levinson

Matthew Yglesias has a fine post on the threat posed by the filibuster to the functioning of our political order. He concludes by suggesting, altogether plausibly, that if the Republicans were in fact to recapture all three branches of government in the 2012 election, then the first thing they would do would be to abolish the filibuster and thus deprive Democrats of the ability to torpedo whatever legislative programs they might have. It would, of course, serve Democratic Party interests to prevent a Republican government from achieving anything, especially with regard to the economy, that might win them votes. It will be typical Democratic blindness if they protect the filibuster while they in fact "control" the Senate only to see it eliminated once disciplined Republicans take over the Senate and can rely on a Republican President of the Senate (i.e., VP), to rule that the Senate is not a continuing body.

Each party has a vested interest in the destruction of a government headed by the other. This is exactly why James Madison hated parties. He wrongly believed that the Constitution would work to mitigate the ravages of "faction," but he was wrong, not only because of the rise of political parties (by 1796 or, most certainly, by 1800), but also because of the displacement of the elites Madison had such faith in by "the people" who cared only about their own interets. Gordon Wood's brilliant new Oxford history spells this out. I certainly don't advocate returning to a Federalist elite politics, nor do I think they were simply devoted servants of "the public interest." The challenge of our time is figuring out if effective government is possible given the social, political, cultural, and economic realities we live under. The answer may well be no. We simply have to hope for the best, but this may be the equivalent of hunkering down in New Orleans before Katrina and hoping against hope (or praying) that it will veer away at the last minute.

Friday, July 30, 2010

"Constitutional hardball," "showdowns," and "crises"

Sandy Levinson

Mark Tushnet has coined the term "constitutional hardball" and Adrian Vermeule and Eric Posner "constitutional showdowns" to refer to certain sorts of acriminious controversies over the extent of institutional power under the Constitution. (Jack and I have written about "constitutional crises," but we agree that not every episode of "hardball" or "showdown" counts as a full-scale "constitutional crisis," even if we argue that it is not very helpful to refer to, say, secession in 1860 as merely an episode of "hardball" or "showdown.")

So, whether or not the egregious use of the filibuster in the egregious Senate constitutes a "constitutional crisis," surely it exemplifies a "hardball" or "showdown" inasmuch as Republicans are determined to prevent the Administration from registering anything that might be viewed by the American public as an "accomplishemnt." They are, I think, behaving perfectly "rationally," given their view of how to succeed in the 2010 and 2012 elections. But it takes two to pay "hardball" or engage in a "showdown," and it's totally unclear that either Senate Democrats or the President has the willingness to do so (which means, in effect, that mad-dog Republicans prevail).

The two most obvious counterattacks are a) recess appointments, which the Constitution explicitly authorizes (the fact that its merits may be highly debatable is beside the point); and b) a full-scale attack on the filibuster. The first is the decision of the President. He's done a bit, but he should be far more aggressive, simply announcing that he will offer a recess appointment to anyone for whom the Senate refuses to vote within a month after being cleared by the relevant committee. No holds or filibusters will be allowed to prevail, period. The second is the choice of the Vice President, though it would be interesting indeed if Obama "ordered" Biden to rule that the Senate is not a continuing body and therefore allow the filibuster to be eliminted or, at least, to be significantly modified in the direction of majority rule.

My own view is that the inability of the Senate to respond to the challenges posed by climate change may well count as a "crisis." All of us may pay an extremely steep price for the awfulness of the Senate. A fine piece by E. J. Dionne, tellingly titled "In American politics, stupidity is the name of the game," concludes, "[W]e need to reform a Senate that has become an embarrassment to our democratic claims." Reforming the filibuster would be only a start, however necessary. But it surely wouldn't be sufficient.

When will Obama appoint a new SG?

Sandy Levinson

Linda Greenhouse has a fascinating post in the New York Times on a case challenging the felony-voting prohibition under the Voting Rights Act. She correctly notes the wide-ranging importance of the issue: In Virginia, 20% of all African-American males are deprived of the ballot because of Virginia's draconian laws. But this isn't the main point of my posting. She also notes that the Court has "invited" the Solicitor General to submit a brief indicating the position of the United States as to whether or not cert. should be granted with regard to the case being appealed from the First Circuit (which rejected the VRA argument).

But, of course, we don't have a "full-scale" Solicitor General right now. Soon-to-be Justice Elena Kagan is obviously no long acting as SG; I assume that her able assistant Neal Katyal is serving as the acting SG. Apparently, she has not resigned and is still receiving her salary while on leave. (It is presumably thought "presumptuous" to resign an existing job before confirmation; none of the sitting judges did so, and, indeed, Robert Bork went back to the DC Circuit for a while before resigning.)

But Kagan will be confirmed next week and, presumably, take the oath of office within a day or so, since she really has to start reading a lot of cert petitions, etc. Is it unfair to expect the President to name her successor within a week (at the latest) after her formal resignation? (And, if the mad-dog Republicans mount a filibuster, will the President make a recess appointment? If not, why would anyone of stature submit him/herself to the present circus of the Senate?) Or will this simply become another example of Administration dithering, as has been true with regard to naming someone to head OLC (after the Administration's throwing Dawn Johnson to the solves) and filling a plethora of vacancies on various federal courts?

Thursday, July 29, 2010

Elzabeth Warren again

Sandy Levinson

Charles Fried, who among other things was Solicitor General under Ronald Reagan (as well, of course, as a distinguished professor at the Harvard Law School and a former member of the Massachusetts Supreme Judicial Court) has a terrific piece in the Boston Globe endorsing Barney Frank's suggestion that Obama should give Elizabeth Warren a recess appointment to head the new Consumer Financial Protection Agency. Fried, who is somewhat libertarian in his politics, describes Warren as an "enemy of dishonesty, abuse, and just plain fraud," and he notes that capital (and capitalist) markets can't operate effectively if there is no adequate protection against these ills.

I must say, incidentally, that the stupidest argument in Prof. Warren's favor is that she invented the idea of a Consumer Financial Protection Agency. Talented academics have good ideas all the time, and that's generally not an argument for putting them in charge of complex agencies. What makes the appointment of Elizabeth Warren essential is not only that she had a very good idea several years ago, but, far, far more importantly, she has consistently fought for the idea at the highest level of politics, that she has demonstrated a remarkable, even charismatic, persona with regard to the ability to make complex ideas accessible, and, as Prof. Fried notes, she is passionately committed to making this idea work. By definintion, no one has the relevant prior experience in running this kind of regulatory agency, since it hasn't existed before and the existing regulatory structures, prior to the new bill, were systematically dismantled by recent administrations (including, of course, the Clinton Administration and Robert Rubin). I have no doubt she'll be a superb administrator, but if there are any problems in pushing the paper, she can always hire a deputy. The fact is that much of the job will involve informing the public as to what the Agency will be doing, and why in fact it serves their (rather than the banks') interests, and there is literally no one better in the country (including, I suspect, Barack Obama) in doing that.

One final note: I had a conversation today with a colleague who was reporting on a conversation he had had with a Washingtonian who was bewailing what has happened to the OLC as the result of the Administration's abject cowardice in selecting a head who might have expressed, at one time or another, controversial views about presidential power, etc. It will be shattering if on top of this he punts on Elizabeth Warren.

DOMA, Romer, and Rationality

Andrew Koppelman

For anyone out there who’s enough of a glutton for punishment to want to read a sustained defense of the decision in Gill v. Office of Personnel Management, which has been the object of extensive discussion on this blog, I have a new paper on SSRN (forthcoming in the Drake Law Review) that discusses the case and its antecedents in detail. It also defends the argument that I’ve made often in the past, that discrimination against gay people is a kind of sex discrimination, against some recent criticisms by Martha Nussbaum.

Statistical Forensics Launches a Polling Donnybrook

Ian Ayres

Crosspost from Freakonomics:

The digital revolution with its increasing storage of terabytes of data often leaves behind electronic traces of malfeasance. A cell phone thief left behind call records that I used to get my phone back. Justin Wolfers analyzed data sets on college and professional basketball games to uncover residue of point-shaving and racial bias. I once called on the NBA to release more data to “give Freakonomics a chance.” Steve Levitt led the way in this new field of forensic Freakonomics with his famous discoveries of cheating by school teachers and sumo wrestlers.

Now statistical forensics is playing a central role in claims of fraud leveled at the polling firm Research 2000 (“R2K”).

A political consultant, a retired physicist, and a wildlife researcher walked into a bar…no, wait – it only sounds like the beginning of a joke. Actually, in June, they checked the internal consistency of Research 2000’s polling data because “on June 6, 2010, rated R2K as among the least accurate pollsters in predicting election results”:

For the past year and a half, Daily Kos has been featuring weekly poll results from the Research 2000 (R2K) organization. These polls were often praised for their “transparency”, since they included detailed cross-tabs on sub-populations and a clear description of the random dialing technique. . . . One of us (MG) wondered if odd patterns he had noticed in R2K’s reports might be connected with R2K’s mediocre track record, prompting our investigation of whether the reports could represent proper random polling. . . .

The three features we will look at are:

  1. A large set of number pairs which should be independent of each other in detail, yet almost always are either both even or both odd.

  2. A set of polls on separate groups which track each other far too closely, given the statistical uncertainties.

  3. The collection of week-to-week changes, in which one particular small change (zero) occurs far too rarely. This test is particularly valuable because the reports exhibit a property known to show up when people try to make up random sequences.

The full post with details of their analysis can be found here.

It appears that Daily Kos has filed a lawsuit against R2K. The president of the polling firm, Del Ali, has responded:

On the data is too clean crap, let me say this and I challenge anyone to then look at comparable data from other firms, not one or two but many others. As I stated, using Gallup one could question the frequency of 46% on Obama’s approval. Regardless though. to you so-called polling experts, each sub grouping, gender, race, party ID, etc must equal the top line number or come pretty darn close. Yes we weight heavily and I will, using the margin of error adjust the top line and when adjusted under my discretion as both a pollster and social scientist, therefore all sub groups must be adjusted as well [sic]. I would have gladly gone over with Kos before his accusation in a vile email on June 9. However, it is clear that no matter what, Kos was going to go the route they have not just to get out of paying their bill but as stated for several other sinister reasons that have come to light. (emphasis added)

I like the fact that Ali is calling for comparable analysis of other polls. But I’m a bit baffled by the bolded section of his response. Other commentators are even less charitable. For example, Mark Blumenthal wrote:

[P]ollsters and social scientists never have the “discretion” to simply “adjust” the substantive results of their surveys, within the margin of error or otherwise. As a pollster friend put it in an email he sent me a few minutes after reading Ali’s statement: “That’s not polling. It’s Jeanne Dixon polling.”

I can imagine some discretion in how one chooses an algorithm to weight top line results. But I don’t understand the need for keeping the algorithm and the data secret.

The blood is in the water and non-statistical analysts at the Baltimore Daily Record are now digging up details on the sparse number of employees and financial difficulties at the firm.

If I were representing the Daily Kos, I would consider adding a promissory fraud count to the complaint. As Greg Klass and I explored in “Insincere Promises,” showing that another person repeatedly promised to do something and then failed to do it is one of the easiest ways to prove promissory fraud. (My favorite real-world example of repetition as proof of no intent to perform is the Tri-State Crematorium in north Georgia, which promised to cremate more than 300 bodies but instead left the bodies to rot in various storage areas on the property; for fans of musical theater, there is the more whimsical example of Professor Harold Hill, who repeatedly promised to create a boy’s band without delivering the goods.)

[hat tip: Jack Hitt]

Wednesday, July 28, 2010

Republican Regulatory "Reform" aka Repeal

Mark Tushnet

The answer to the question I proposed earlier today -- how can the Republican proposal for regulatory "reform" be consistent with Chadha -- appears to be this, with thanks to two correspondents: The statute if enacted would repeal all existing authority in all agencies to adopt major rules, and would convert their "rules" into proposals for legislation, which would receive favored status on the legislative dockets in each chamber.

Fair enough. There's obviously no constitutional problem with either step in that (repeal, favored status for proposals of a specified sort). But: This would be the effect of the Republican proposal, but the statutory language sure doesn't look on its face as if that's what's going on. And, in this area, labels may matter. The Court invalidated the Line Item Veto Act in the face of a cogent argument, offered by Justice Scalia, that if you looked at what the statute did rather than what it said (in its title), there was nothing at all unconstitutional about it. (There's also the canon of statutory construction that repeals by implication are disfavored, though that can be countered by the canon that courts should do their best to construe statutes to avoid finding them constitutional when their language can fairly be read to conform to the Constitution. Whether the "this statute repeals all existing authority to adopt major regulations" interpretation can be described as a "construction" of the statutory language seems to me questionable.)

In addition, if there is something like a constitutional truth-in-labeling requirement, which there might be, the Republican proposal seems to me a good candidate for a finding of deceptive (and therefore unconstitutional?) labeling. The truth-in-labeling requirement might be found in the Line Item Veto decision coupled with Hampton v. Mow Sun Wong, as part of what Laurence Tribe calls "structural due process."

[Republican] Regulatory Reform and the Constitution

Mark Tushnet

The Republican leadership has gotten behind a proposal for congressional review of proposed regulations. (It's called the Regulations from the Executive in Need of Scrutiny Act, but I'm not going to give the acronym because I regard the "acronymization" of legislation as a symptom of the degradation of our national legislative processes.) The proposal distinguishes between major and non-major regulations proposed by executive agencies. Non-major regulations become effective unless Congress enacts a joint resolution (subject to the President's signature) of disapproval. This is a standard report-and-wait provision, and raises no constitutional questions.

The provision dealing with major regulations is different. These become effective only if Congress adopts a joint resolution approving them (see Section 802). The proposal would amend the rules of each chamber to ensure that a rule with significant support in each chamber will come to the floor for a vote on a resolution of approval. My question -- and it's a genuine one -- is how this statute can be consistent with Chadha. On the face of it, it's worse than the legislative veto at issue in Chadha from the point of view of the separation-of-powers principles articulated there. In Chadha a regulation would become law unless it was disapproved by majority in one chamber.* Under the Republican proposal a major regulation would not become law unless it is approved by majorities in both chambers (and the resolution approving the regulation is signed by the President, which presumably would be a formality except in situations of presidential transition -- which is probably already sufficiently dealt with by the Corrections Day procedure).

The Republican proposal comes with findings and changes in the rules of each chamber. These might be sufficient to support the proposal's constitutionality under the functional approach adopted by the Chadha dissent, but it's not clear to me how the proposal is consistent with the majority opinion in Chadha. I'm willing to concede that I might be missing something here, but I'd appreciate enlightenment on the argument supporting the proposal's constitutionality.

* In addition, in Chadha the legislative-veto provision was statute-specific, making it possible to argue, though the majority rejected (or more accurately) ignored the argument, that the agency action could not affect legal rights until the time for the exercise of the legislative veto had expired. It's harder to make that argument for a general provision like the Republican proposal, although I suppose it could be regarded as a pro tanto (or nunc pro tunc, if you like that Latin phrase) amendment of all existing delegations of regulatory authority.

Tuesday, July 27, 2010

When might filibusters be justified?

Sandy Levinson

I argued in my previous post that Joe Biden should declare that the Senate is not a continuing body and,therefore, that it can modify its rules by a majority vote, without facing a filibuster. Does this necessarily mean that the filibuster should be abolished lock, stock, and barrel? I think this is quite literally debatable, and I see two circumstances where we might want to retain the filibuster, even if, for example, we might want to drop the number of votes required to break a filibuster from, say, 60 to 55. In any event, the two circumstances are:

1) lifetime appointments, which means, obviously the federal judiciary. I, of course, strongly favor eliminating life tenure, especially for Supreme Court justices. If they could serve only 18 years, with no reappointment, then perhaps they should not be subject to filibuster. But until that happy day, I see no principled objection to trying to derail someone whose constitutional views the objector finds genuinely offensive, whether from the right or the left. This is, incidentally, why Lindsay Graham was wrong to say that he was in effect obligated to vote for Elena Kagan because, after all, Barack Obama won the election. I obviously believe that Kagan deserves support and that the Republican opposition to her is spurious to the core, but if one really wants to roll back the New Deal, then it is completely rational to oppose Kagan. Similarly, although Miguel Estrada, whom I met a couple of times, may well be a fine (and most certainly a very bright) person, it is silly for Democrats to express remorse about defeating him in light of Graham's speech. I give him great credit for supporting Kagan, and I have no doubt that she's sincere in saying that he should have been confirmed. But if he had been confirmed, then I strongly suspect that today we'd have Justice Estrada instead of Justice Alito. (Perhaps that proves that we overestimate the signiicance of discrete individuals, for a strong president may usually be able to wear Senate down by nominating persons who are far more alike than different in ideology. That is the topic for another posting.)

Perhaps one should make the same kind of argument for the head of the Fed or the FBI, given that they serve longer terms and have immense power (indeed, as we saw in the winter of 2008, more effective power than the President, who chose to be a bystander as Bernanke and Paulson acted).

2) when, because of the indefensible way that voting is allocated in the Senate, the "majority" in fact represents less than a majority of the American public. As a matter of cold fact, this argument favors the Democrats, inasmuch as Republicans currently tend to benefit from the Senate's allocation of votes. Still, it seems fair to me to argue for a rule that allows debate to be ended only when a majority of senators representing a majority of the population vote to end it. On occasion, that would be 51 (or even 50 + the VP); on other occasions, one might in fact need quite a few more votes. But if the principal mantra behind the "anti-filibuster position" is "democracy" (which is true in my case), then it's difficult to defend a principle that allows a group of senators representing less than the majority to ram controversial legislation down the throats of the presumptive majority.

3) a third argument that is often made is that the filibuster is a useful measure of "intensity," since otherwise the votes of a marginally-supportive and an intensely-opposed senator are treated equally. In theory this is a good argument, but, alas, the principal example of the "intensity" argument is Southern racists who used the filibuster to stop substantial civil rights legislation until 1964. And, of course, in the old days, whether good or bad, intensity was measured by a willingness to stay up all night and make multi-hour speeches; it had not become the basically costless gesture that is now, with attendant problems of "moral hazard" when one in effect gets an important good for free.

As noted above, none of this suggests that Biden should turn his back on critics of the filibuster in his capacity as VP.

Monday, July 26, 2010

Why the House hates the Senate (and the rest of should as well)

Sandy Levinson

The Washington Post has a story on why the House properly hates the Senate. It illustrates a major problem with bicameralism, which is that it promotes a disincentive for members of a given house, whether the House or the Senate, in actually taking the initiative on a controversial issue, for fear that the rug will be pulled under them by the other house, including, of course, ostensible members of the same political party. (Perhaps the Republicans would have been successful in stopping a decent energy bill, but, of course, we'll never know, because the Democrats, bowing to their coal- and oil-industry lackeys, were decidedly unwillingn to push the point.)

A central issue in the uncoming election should be whether Joe Biden will rule that the Senate is not a continuing body and therefore can adopt its rules, including getting rid of the filibuster in its present form, by a straight majority vote. Indeed, it's an especially interesting issue precisely because it's not inconceivable (though I think it's unlikely) that the Republicans will get back the Senate. So Biden could credibly state that he will support that position even if it would give Republicans working control of the Senate, since, in the world we now live in, all that it would mean, otherwise, for Republicans to "capture the Senate" is that they could investigate the Obama Administration to their heart's content, since they certainly couldn't pass their legislative program (assuming, contrary to fact, that they actually have such a program).

Sunday, July 25, 2010

Credit Scoring: Faces at the Bottom of the Bell Curve

Frank Pasquale

I agree with Prof. Levinson's recent posts on the importance of a Warren nomination for the CFPB. Just to add some context on the challenges the CFPB will face, I want to talk about the social importance of credit scores, including FICO scores. Joe Nocera recently noted that while a "credit score is derived after an information-gathering process that is anything but rigorous," it "has become the only thing that matters anymore to the banks and other institutions that underwrite mortgages." It turns out that's only the tip of iceberg of problems with credit scoring.

Read more »

Saturday, July 24, 2010

Why the fear about confirming Elizabeth Warren?

Sandy Levinson

The conventional wisdom has become that Elizabeth Warren would, of course, be a fine appointee to head the new Consumer Protection Agency, but, as Sen. Christopher Dodd has said, she might have trouble being confirmed (which therefore licenses the Obama Administration to be thoroughly cowardly and abandon Prof. Warren). But what, precisely, suggests that she couldn't be confirmed?

Yes, every running-dog lackey of Wall Street would oppose her, but are there in fact 41 senators who would publicly take on such a role? To be sure, one can assume that most of the Republicans would oppose her, but does "most" mean "all"? Consider, e.g., Scott Brown, who, by all accounts, would like to be re-elected in 2012. Is he really going to vote against the charistmatic Harvard Professor selected by the Boston Globe last year as "person of the year"? I don't see voting against her as a good career move for an ambitious incumbent Republican senator in Massachusetts. Indeed, although so far Prof. Warren seems to be rebuffing the pleas of many that she run for the Senate herself in 2012, I wonder if she might actually succumb to these pleas if she is deprived of a chance to serve by a 59-41 vote in which Scott Brown is the executioner. Then there are the two senators from Maine, who also have to worry about their own political futures (and in fact have tried to distance themselves from their mad-dog colleagues). So, assuming she gets all 59 Democratic votes, that gives her a cushion of two votes, which means that the egregious Senators Nelson and Lieberman could vote against her and she'd still be all right. But, frankly, I'd be shocked if Lieberman, who certainly wants to be re-elected in 2012, would dare vote against Professor Warren. I'm also assuming that Blanche Lincoln, who criticized the bill for not being tough enough (on derivatives) would vote to confirm. And, who knows. outgoing Republican Senator George Voinovich, from Ohio, who is quite different in temperatment from his mad-dog colleagues, might actually choose to do the right thing and vote to confirm as his valedictory.

As anyone who follows my postings knows, I basically despise the Senate. But in this case, it is not the arcane and indefensible practices of the Senate that will explain any failure to nominate her. If Obama fails to nominate Prof. Warren, it will have nothing to do with bona fide concerns about confirmation; rather it will be a craven capitulation to running-dog Democratic senators who cannot, of course, afford to oppose her in public, but will tell Obama that she's just too "strident" to take this office. This is truly a defining moment for the Obama presidency (and for Democratic senators themselves).

Friday, July 23, 2010

Elizabeth Warren

Sandy Levinson

Like many around the country, I'm transfixed by whether Pres. Obama will (as he most certainly should) appoint Elizabeth Warren to head the new Consumer Protection Agency that is part of the regulatory legislation signed yesterday. First, I should note that Liz is an old friend, going back to the time she graced the University fo Texas Law School faculty. (We lost her first to Penn and then they, in turn, lost her to Harvard.) I simply want to make two points:

1. It is a mistake to fixate on her status as a "Harvard Professor." Yes,she is that, but, unlike most Harvard law professors (and some of my best friends are Harvard law professors.....), she is an authentic populist far more than a technocratic progressive. This may be traceable to her growing up in Oklahoma. She went to the decidedly unfashionable University of Houston for her undergraduate education and then went on to the almost equally unfashionable Rutgers Law School for her J.D. (I am confident that she will remain the one and only graduate of Rutgers who will ever be hired by the Harvard Law School, since their "pool" tends to be drawn from the graduates of a remarkably small number of "elite" law schools.) It is safe to say that Liz got to Harvard entirely and exclusively on her own merits, as one of the leading bankruptcy experts in the United States, period. Along with UT Professor Jay Westbook and then UT Professor Terry Sullivan (who has just bcome president of the University of Virginia), she did the most sophisticated and important empirical examination of the actualities of bankruptcy and, along the way, exploded a lot of myths that privileged people have about those who go bankrupt. Long before the past couple of years, she emphasized in both scholarly and popular writings that an amazing number of families was one serious medical illness away from bankruptcy. Anyone who has seen her on television knows that she has a remarkable ability to communicate the importance of reforming our financial institutions and cracking down on predacious credit-card issuers and the like.

2. The fact that banking interests and the Repubilcan Party (who can truly be described these days as running dog lackeys of the banking interests--as distinguished from most Democrats, who are lackeys of same, but not with the same degree of abject submission) will be apoplectic and try to filibuster her appointment is a plus, not a minus. It's not only that her appointment, unlike that of the other two (by stipulation, thoroughly competent and equally thoroughly unknown to all but DC insiders and a very few others) contenders, would invigorate Obama's base, something badly needed these days, especially after such fiascoes as Shirley Sherrod and Dawn Johnson (and the disintegration of OLC). It's also the case that a filibuster would be a delight to see, especially if former boxer Harry Reid displayed some backbone and forced a "real" filibuster that forced the Republican mad-dog lackeys not only to stay up all night, but also to explain exactly why someone with Warren's impressive personal background and even more impressive intellectual accomplishments--and her ability to communicate so well with the American people, especially those most in need of protection--is unfit to serve the public.

For many of us, this is an acid test as to whether the Obama Adminsitration really does have backbone, except when Rahm Emanuel wants to curse liberals for not being sufficiently "understanding" of the need to capitulate, again and again, to self-proclaimed "realities." Some of the time, of course, Emanuel is absolutely right. But this isn't one of them. Both crass politics and the public interest make Elizabeth Warren the right person at the right time. If she is passed over, then "we" should insist that she be nominated to replace Ruth Bader Ginsburg, not least because it would really be wonderful to have someone on the Court who actually understands bankruptcy law and because, of course, it would be even more wonderful to have Elizabeth Warren construing the meaning of the various provisionsn of the 2300-page statute signed yesterday. It's a great thing for Harvard to have her on its faculty, but her highest and best use is a very high position serving the country at large.

Questions for FCC Commissioner Robert McDowell on his International Legal Expertise

Marvin Ammori

Today, Republican Federal Communications Commissioner Robert McDowell published an op-ed in the Wall Street Journal that would probably land any law student an F in telecom law class, if not a trip to the school psychologist. McDowell has a long history of factually challenged op-eds on Internet deployment and net neutrality, as well as using Glenn-Beck-style rhetoric comparing everything to the fairness doctrine. He'll just throw anything at a wall and hope it sticks.

Today's op-ed makes some garbled, bizarre claims about the UN betraying a fundamental misunderstanding of law. His op-ed claims that (1) back in the late 1990s, nations in the International Telecommunications Union (a UN agency) decided "not to regulate" the Internet but later the ITU tried to assert jurisdiction over the Internet at two conferences (known as World Summits on the Information Society); that (2) the ITU might assert jurisdiction now as a result of the US FCC pursuing network neutrality (which requires a regulatory reclassification); that (3) the US lacks a "veto" at the ITU, making all this a big problem, and therefore that (4) US net neutrality efforts would undermine Secretary of State Clinton's global Internet Freedom initiatives.

All of these seem dishonestly inaccurate or Ted-Stevens dump truck crazy.
Read more »

Thursday, July 22, 2010

The Individual Mandate and The Original Meaning of Taxation


For some time now, opponents of the individual mandate have focused on showing that the mandate does not fall within Congress's commerce clause powers. But the Justice Department has made clear that it will defend the new health care act both under Congress's power to regulate commerce and its power to tax and provide for the General Welfare. Opponents now realize that they must win on both theories. As a result, there has been renewed interest in showing that the individual mandate is not within the taxing power either. This is fairly difficult to do, because the individual mandate is part of the Internal Revenue Code.

Nevertheless, J. Kenneth Blackwell and Kenneth Klukowski give it a try in an op-ed in the Wall Street Journal. Unfortunately, the attempt is not successful.
Read more »

Wednesday, July 21, 2010

Shirley Sherrod, Dawn Johnson, ,and Lani Guinier

Sandy Levinson

I deeply fear that Barack Obama is replicating one of the worst aspects of Bill Clinton, which was a remarkable lack of loyalty to many of his friends and supporters (not to mention members of his cabinet to whom he lied through his teeth). The White House treatment of Shirley Sherrod was absolutely disgraceful, rushing to judgment and sacrificing Ms. Sherrod, who was publicly branded a racist by the Obama Administration--forget the fact that the ultra-right led the way, the Obama Administration is suppoed to reflect better values, including a commitment to due process before destroying people's careers--on the basis of grotesquely incomplete information. But, then, "disgraceful" also describes the Administration's treatment of Dawn Elizabeth Johnson, who would have been a terrific head of OLC and who was left twisting in the wind, on the basis of the right-wing fears that she was soft on torture (which was, for anyone following the controversy, far more important than the fact that she had worked for NARAL in the early '90s). The Administration never was willing to press for a full-scale Senate vote or, even more to the point, to give her a recess appointment. (Of course it's possible, though I almost hesitate to suggest this,that Rahm Emanuel was as appalled as the Republicans by the suggestions in some of Johnson's writings, that someone should actually be held accountable for the crimes of the Bush Administration. If there's one thing this Administration now seems to stand for, it is that accountability is "so 20th century.") And, of course, OLC still doesn't have an appointed- and confirmed-head. It has been ably lead, in the meantime, by David Barron, with the able assistance of Balkinization's own Marty Lederman, but rumors (I have not communicated with either Barron or Lederman about this) suggest that Lederman is returning to Georgetown and Barron to Harvard. This potential disorder at the OLC is a disgrace, and Barack Obama must bear the responsibility. [UPDATE: According to a 2:15 twitter from Charlie Savage, "It's official: Marty Lederman leaving OLC & returning to Georgetown law. W/ David Barron's return to Harvard = no more academics at OLC." This is good news for Georgetown and Harvard, but it's really terrible news for the rest of us, especially since one wonders if anyone of Johnson's, Lederman's, or Barron's stature will submit themsleves, in this completely poisonous atmosphere, to the circus of a Senate confirmation hearing with the knowledge that the Administration might well to do them (should they ever have expressed an opinion that runs counter to the conventional wisdom at Fox) what it did to Dawn Johnson.]
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Naji: The Problem With Involuntary Repatriation

Steve Vladeck

I've written before both here and elsewhere about the problems raised by the D.C. Circuit's recent (i.e., post-Boumediene) jurisprudence concerning whether Guantanamo detainees who have been cleared for release are entitled to notice and a hearing before a neutral magistrate prior to being transferred out of Guantanamo to a country (including their home country) where they credibly fear torture or other forms of persecution. [Hat tip to Lyle Denniston at SCOTUSblog, who has been on top of this issue throughout.] Much of this boiled to the surface last week in the attempt by an Algerian detainee, Farhi Saeed Bin Mohammed, to block his potential repatriation to Algeria. Although he successfully obtained a preliminary injunction in the district court, a divided panel of the D.C. Circuit granted the government's "expedited motion for summary reversal," and dissolved the injunction on the ground that its earlier decision in Kiyemba II controlled Mohammed's entitlement to relief.

Judge Tatel concurred in part and dissented in part, suggesting that at least some of Mohammed's claims (especially those going to his fear of persecution by non-governmental actors) were not covered by Kiyemba II. Mohammed then sought a stay in the Supreme Court, only to lose there, 5-3, with Justice Ginsburg writing (briefly) for herself and Justices Breyer and Sotomayor that Mohammed's case--like most of the Guantanamo transfer cases--raises issues not resolved by the Supreme Court's 2008 decision in Munaf v. Geren. (Reading between the lines, Justice Ginsburg appeared to be taking a pot-shot at Kiyemba II--which held that Munaf governed in all of the Guantanamo cases--even though the Court denied certiorari without dissent in that case earlier this year).

Why does all of this matter? Shortly after denying the stay in Mohammed last Friday, the Court unanimously denied an application for a stay in the case of another Algerian detainee--Abdul Aziz Naji. Naji was quickly repatriated to Algeria on Monday (against his will), where, according to a Reuters report filed late today, he promptly disappeared.

Tuesday, July 20, 2010

Senator Sessions to oppose Elena Kagan for promising to exercise judicial restraint


With the Kagan nomination, the traditional Republican mantra of opposing judges who will not exercise judicial restraint and who will "legislate from the bench" has now been almost completely transformed into its opposite.
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Monday, July 19, 2010

Randy Barnett Wants Us to Know that His Commerce Clause Argument is not Frivolous


Over at Volokh Conspiracy, Randy Barnett is delighted by Robert Pear's recent New York Times article about the government's defense of the individual mandate under the Taxing Power.

Pear notes that the government is not only arguing that the individual mandate is a constitutional exercise of the Commerce Power; it is also arguing that the individual mandate (which is an amendment to the Internal Revenue Code) is a tax and therefore within Congress's powers under the General Welfare Clause. Because the individual mandate is a tax, the state attorney generals challenging the act in federal court must comply with the Tax Anti-Injunction Act, which prohibits persons from challenging collection of a tax through seeking injunctive relief but requires instead that they sue for a tax refund after the tax has already been collected.

Randy believes that the Justice Department's strategy proves three things. First, the government is running scared. Second, raising a taxing power defense means that the government must now think that its Commerce Clause defense is vulnerable. Third, Randy believes that all this is proof that Randy's argument that the individual mandate is not within Congress' Commerce powers is not frivolous.
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Friday, July 16, 2010

New blog devoted to constitutional challenges to the health care bill


Brad Joondeph and Eric Lightman have begun a new blog, the ACA Litigation Blog, to keep track of the constitutional challenges to the Affordable Care Act as they progress through the courts.

"Persuasion" versus "authority" (and "authoritarianism") in the law

Sandy Levinson

Linda Greenhouse has a typically interesting column online in which she argues that the era of the "Kennedy Court" is effectively over, that the Court is now rather firmly in the hands of the conservative majority of which Kennedy is now a fairly consistent part (rather than the "swing justice" who is willing, on a suitable number of occasions, to break ranks). At best, he is the Scott Brown of the conservative bloc, which, for liberals, is far better than his being Mitch McConnell, but still not worth praising to the skies.

What provokes this particular posting, though, is a quote from within the column, from Kennedy's opinion in the Hastings Law School case on the Christian Legal Society: "[S]peech is deemed persuassive," said Kennedy, "based on its substance, not on the identity of the speaker." But, of course, Kennedy, as one of the leading "Supreme Court papalists," i.e., someone who views the Court as literally the last word on the meaning of the Constitution (see, e.g., his opinion in Boerne), is remarkably impatient with anyone who dares to disagree with interpretations of 5-person majorities of the Court. To be sure, he's not relying on "the identity" of a particular justice, but he is surely relying on the altogether contingent fact that five justices happened to adopt a given view, for whatever reason, over what is often altogether persuasive dissents. Constitutional law in the US (and perhaps anywhere) is fundamentally authoritarian inasmuch as it relies on a given institution to be the "ultimate interpreter" of inherently debatable propositions.

I suppose what Kennedy means is that editorial writers and law professors (and even ordinary citizens) are free to disagree with Supreme Court decisions, but, as law professors, we have to teach our students that it really doesn't matter, at the end of the day, whether they are "persuaded" by the majority, since what really counts, as Justice Brennan told all of his clerks immediately after meeting them, what really counts if the "rule of 5," i.e., whether the proposition got five votes.

On another matter, Greenhouse also notes that Kennedy, who is now 74 and has been on the Court a full 22 years, has no apparent intention to retire. "The man obviously still loves his job . . . " she writes, "and he has no reason to leave it." That is, he has "no reason" from his own egoistic perspective, since he is both a key vote for the reigning majority and, when he wishes to be, the swing justice who can toss the liberals a bone or two. And he gets to enjoy the particular kind of fawning that accompanies being a Supreme Court justice (including lots of opportunities for foreign travel and bloviation about how law rests on rational persuasion rather than political power). But, of course, from a public-regarding perspective, he (and every other justice who has served more than 18 years) has every reason to leave, since life tenure really no longer, assuming it ever did, serves the public interest. If Obama is re-elected in 2012 (which I think is an almost overwhelming probability given the disarray in the Republican Party and the current lack of a truly credible challenger to Obama), then I assume that we'll be treated to the spectacle of Scalia and Kennedy trying to hang on until 2017 in order to deprive him of an appointment that might actually have real consequences for the Court. (Needless to say, it is overdetermined that I think that Justice Ginsburg should announce her retirement with some dispatch. By the end of the 2010 term, she will have had her 18 years, and it will be time mfor her to go.)

David Souter (a perfectly fine justice who graced the Court) proved that he was perhaps the least narcissitic justice ever to serve on the Court, by retiring with consummate grace at the end of his 18th year on the Court and making way for someone new. Incidentally, a very fine forthcoming biography of William Brennan by Stephen Wermeil and Seth Stern demonstrates Brennan's own narcissism with regard to his unwillingness to retire, so I certainly don't mean to suggest that conservatives are necessarily less public-regarding than liberals. Ginsburg will be an interesting test case, since there's really no excuse, beyond her personal preference, for remaining on the Court. Justice Breyer is in a somewhat more complex situation. His 18th year will come at the end of the 2011 term, in June 2012. One could easily predict that the Republicans will do whatever it takes to prevent Obama from making an appointment at that time, even it appears likely that he will win re-election. And, of course, if there is any real doubt about that, then that clinches the case for delaying tactics. If Breyer, who is also now in his 70s, wishes to assure a Democratic successor--and one of the problems with life tenure is precisely that it invites such political gaming--then he, too, should consider an earlier resignation.

Scholarly Impact

Mary L. Dudziak

The impact of an SSRN paper is usually measured by downloads, but Tom Russell, legal historian at the University of Denver Sturm College of Law, has given us a new measure. In March 2010, Tom posted an SSRN paper: `Keep the Negroes Out of Most Classes Where There Are a Large Number of Girls': The Unseen Power of the Ku Klux Klan and Standardized Testing at The University of Texas, 1899-1999. The paper, based in part on research in Texas archives, details the way, in the aftermath of Brown v. Board of Education, the University of Texas named one of its dormitories after an unrepentant Ku Klux Klansman, William Stewart Simkins. The paper was picked up in the media, and sparked a student campaign, ultimately leading the Presdent of the universtiy to recommend to the Regents that the dorm name should be changed. Yesterday the University of Texas Board of Regents voted in favor of changing the name.

More details and links are here and here. Tom's SSRN abstract is below the fold.
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Thursday, July 15, 2010

Presidential primaries in 2012

Sandy Levinson

Dan Balz has an interesting story in the Washington Post on attempts by the Democratic and Republican Parties to create a saner process of choosing presidential candidates in 2012. Not surprisingly, issues include trying to limit the exaggerated importance of the early states (especially Iowa and New Hampshire), delegate allocation (an interesting idea some Republcians are floating is that early primaries have to be proportional, whereas later primaries can adopt the traditionally Republican winner-take-all rule). There is no discussion in Balz's article of open- versus closed-primaries, and, of course, I'm assuming that Texas will continue to operate under its unique mix of primary and caucus (that Clinton's operatives didn't figure out, to her detriment). It will, of course, be extremely interesting to see if either (or both) of the parties can actually effectuate any signifciant changes. Presumably, for better and worse, President Obama will exercise undue influence in any decisions of the Democratic Party--at this point, does anyone foresee a serious primary challenge to Obama (I don't)--whereas the Republican contest should make the 2008 season look like a tea party (so to speak). I assume that the Republicans, if they are to act, must act very, very soon, while they can be said to be behind a quasi-Rawlsian veil of ignorance regarding who the actual candidates are and who will be helped or hurt by any particular change.

In any event, it will be interesting to see if either party is actually capable of engaging in serious structural change. (Neither party seems interested in addressing the egregious electoral college, which generates some of the most pathological features of the final campaign and its concentration on the relatively few "battleground states.")

Wednesday, July 14, 2010

Andy Koppelman on the DOMA litigation


Following our previous discussion, Andy has an op-ed in the LA Times explaining why the Supreme Court might strike down section 2 of DOMA. Here's a taste:

This Supreme Court is unlikely to conclude that same-sex marriage must be allowed in all states. But you can invalidate DOMA without going that far, by focusing on its unprecedented, blunderbuss character.

On the current Supreme Court, this case would probably depend on the swing vote of Justice Anthony M. Kennedy. (If he is still there when it is heard — appeals take years, and he turns 74 later this month.) In a 1996 decision striking down a Colorado law that repealed all antidiscrimination protection for gay people, he noted that it "has the peculiar property of imposing a broad and undifferentiated disability on a single named group." This kind of imposition "is unprecedented in our jurisprudence," and he declared that it "is not within our constitutional tradition to enact laws of this sort." Similarly, in a 2003 decision invalidating a law banning homosexual sex, he observed that such gay-specific laws were very recent, originating in the 1970s. That same logic might well condemn DOMA, but it would be unlikely to invalidate the marriage laws of individual states.

Tuesday, July 13, 2010

YLPR Symposium on the State of the Union

Mark Graber

Inter Alia, the online edition of the Yale Law and Policy Review just published a symposium on President Obama's State of the Union Address. Bruce Peabody worries whether President Obama's criticism diminished the quality of political discourse in the United States (an extraordinarily difficulty task, in my opinion, given the remarkably low starting point). Douglas Edlin questions whether the State of the Union address is the proper forum to criticize Supreme Court opinions. Keith Whittington suggests that the State of the Union has become a political pep rally, where one increasing expects the sort of rhetoric typical of pep rallies. My essay focuses on whether the State of the Union address marked a shift to a more tougher and less bipartisan Obama Administration.

Balkinization readers will, I believe profit from the essays. Peabody and Edlin are two exceptionally talented legal scholars who tend to fly under the radar, in large part because they are political scientists teaching at small colleges. With some luck, persons who scan their short essays will be inspired to read their larger work. Whittington is widely regarded as the leading public law scholar of his generation, and the essay bears out his reputation for combining extensive knowledge of American constitutional development with a sensitivity for the political dynamics of our constitutional regime. My grandmother will appreciate your reading my piece as well.

How things might turn out well in the DOMA cases


As readers know, I'm skeptical whether the Gill and Massachusetts v. HHS cases will be upheld on appeal, and I think that losing in front of the First Circuit or the Supreme Court will be a setback for marriage equality. I think that the fight for marriage equality has to happen in the individual states, and that it is premature to try to win big victories in the federal courts. But as Andy Koppelman has pointed out the litigators in Gill are very smart, and they thought it was worth the gamble to try this case in federal court. So in this post, let me view things from their perspective and consider a set of scenarios in which things turn out better than I expect, and that would ultimately vindicate the plaintiffs' litigation strategy.
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Monday, July 12, 2010

Frustration, Boycotts, and the Arkansas Ethics Rules (Or, Just Another Day in the Life at Camp Justice)

Steve Vladeck

[To be cross-posted at]

What follows is my first-hand report on today’s proceedings here at Guantánamo in the military commission trial of Omar Khadr, a Canadian citizen captured in Afghanistan in the summer of 2002 at the age of 15, and charged with, among other things, throwing the grenade that killed Sergeant Christopher Speer. I came down here as observer for the National Institute of Military Justice—an NGO affiliated with my law school that was founded in 1991 to promote the fair administration of justice in the military system, and to educate the public, press, and Congress about the military justice system. Although I am here through NIMJ’s good graces, it should go without saying that what follows are my own views, and do not necessarily represent the position of NIMJ, its members, or its employees.

I had never been to Guantánamo before arriving yesterday. Notwithstanding my involvement at various stages in the Hamdan litigation and in various other cases involving non-citizens detained here, I had somehow managed to avoid this remote stretch of southeastern Cuba in my travels—for better or for worse. Now, after observing almost a full day’s worth of proceedings in Omar Khadr’s case (the big news from today’s events has already been broken elsewhere), I think it’s easy to see why everyone is so frustrated—the lawyers on both sides, the judge, the defendant, even the JTF personnel whose thankless job it is to deal with the dozens of people (like me) who converge upon the base from afar for each new round of hearings. Frustration comes cheap here at Camp Justice; progress is the priceless commodity.

Frustration is also at the heart of the current predicament in Khadr’s case. Although Khadr had largely been cooperating with his lawyers, that changed recently, for reasons that we can only speculate about (I won’t here). Thus, Khadr fired his civilian lawyers, and made representations to the court that he also wanted to rid himself of his detailed military lawyer, Lt. Col. Jon Jackson. The court initially took that as a motion to proceed pro se, and, ostensibly, that was the matter pending before the court when it convened this morning.

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Understanding Medicine's Middlemen

Frank Pasquale

S. Prakash Sethi has called group purchasing organizations (GPO's) an "undisclosed scandal in the U.S. health care industry." Mariah Blake's article in the Washington Monthly on GPO's is a sobering "must-read" for those concerned about the future of health care in the US. She tells the story of entrepreneur Thomas Shaw, who's invented a syringe that drastically reduces the risk of bloodstream infections for patients and healthcare workers. (According to Barry Lynn, who's also written on the issue, "each year about 6,000 medical workers come down with HIV or infectious hepatitis from such accidents, and dozens end up dead.") Shaw's brilliant innovation "added only a few pennies to the cost of production," but it's rarely used today. Blake traces the non-diffusion of this innovation to a complex set of deregulatory decisions relating to GPO's.
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How The Court's Sarbanes-Oxley Decision Affects Social Security (and Other) Policies

Rick Pildes

Yesterday's NY Times carried a story about tensions between Congress and the Social Security Administration (SSA), along with tensions inside the SSA, over the critical task of how to keep the numbers concerning social security honest. The key figure is the agency's chief actuary; the current actuary has served 37 years and apparently has earned Congress's respect for his independence, accuracy, and reliability. His independence is legally protected by standard "for-cause" removal provisions -- the head of the SSA cannot fire the actuary at will (and therefore pressure the actuary) but only if specific, demonstrated good-cause reasons exist. This is especially important because there is, in fact, tension between the current head of the SSA and the actuary over some issues. Yet if the comments from House and Senate members in the Times story are accepted, this system has worked; for all the political and policy struggles over social security, at least policymakers have been able to rely on the numbers the chief actuary has generated.

Now here's the rub: the SSA is an independent agency, headed by someone President Bush appointed who will serve until 2013. President Obama cannot fire him, even if they disagree over policy; the head of the SSA is also protected by for-cause removal provisions. Thus, to protect the independence of the chief actuary, Congress has created a structure that looks much like the one the Court just held unconstitutional in the Free Enterprise case: the chief actuary is an independent official inside an independent agency. The President is twice removed from being able to exercise any direct control over the chief actuary: once, by the independence of the SSA itself, and then again, by the independence of the chief actuary within the SSA.

This recent example highlights two implications of the Court's Free Enterprise decision. The first is one rather strange consequence: to protect the President's power -- which is the basis for the Court's decision -- the head of an independent agency like the SSA has to be given the power to fire at will someone like the chief actuary. Congress cannot make this official independent; Congress cannot protect him/her with good-cause removal protections. But the head of the SSA was appointed by President Bush and President Obama has no control over him. How does it protect the President's power to give the head of the SSA (or similar agencies) -- officials the current President did not appoint and cannot remove -- more power? The second implication is this: if Congress concludes public policy is well served by creating officials who are independent, inside agencies like the Federal Reserve, the SEC, the FCC, SSA, and other independent agencies, should that option be unconstitutional? Is the best understanding of the Constitution, and the President's Art. II powers, one in which this option is taken off the table, in contexts like that described in the Times story?

Perhaps there are enough distinctions between what the chief actuary in SSA does and what the Board at issue in the Sarbanes-Oxley case does, so that the former structure is not necessarily unconstitutional merely because the Court concluded the latter was. And even if the independence of the chief actuary is unconstitutional, it might be that no one will ever have legal standing to challenge that structure in court. But at a minimum, the Court's decision in the Sarbanes-Oxley case raises very serious constitutional questions about one of the most critical tasks in administering social security: how to design the administrative system so that the numbers, on which all policy decisions are based, are accurate, reliable, and honest. The structure for doing that for SSA, which has been in place since social security was created, is now cast into serious constitutional doubt by the Court's recent decision in the Free Enterprise case.

Friday, July 09, 2010

Tradition and same-sex marriage

Andrew Koppelman

Jack is right when he says that any imaginable opinion upholding Gill generated by the present Supreme Court would have to be written in such a way as to leave undisturbed all the state laws refusing to recognize same-sex marriage. He’s also right that any such opinion would rest heavily on the unprecedented character of DOMA, and that such an argument is somewhat question-begging: “the problem with arguments from tradition is that they don't show that deviations from tradition are irrational. They merely show that they aren't traditional.”

If we’re being legal realists, however, it’s notable that this kind of argument from tradition has had a lot of weight in gay rights cases with Justice Kennedy, who is likely to cast the deciding vote in a Supreme Court appeal of Gill. (I have no confidence that Breyer, Ginsburg, Sotomayor, or Kagan would vote to impose same-sex marriage on the whole country, but that won’t be the issue in Gill; I do think that they’d be persuaded by a properly confined equal protection argument in this case.) And Kennedy isn’t wrong, in this context, to think it matters that unprecedented burdens are being placed on same-sex couples.

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More on Gill v. OPM and the Equal Protection Argument against DOMA


Andy correctly points out that the equal protection argument in Gill v. OPM and the unconstitutional conditions argument in Mass v. HHS rest on a very different legal footing than the Tenth Amendment argument. Although I strongly object to the Tenth Amendment argument, what I said about the equal protection argument in my previous post is that Judge Tauro was too far ahead of the country, that his logic implicates all state marriage statutes, not just DOMA, and that as a result he will get reversed, if not by the First Circuit, then almost certainly by the Supreme Court if the issue comes before them in the next two or three years. I believe that federal and state laws that discriminate against same-sex couples violate equal protection of the laws. But I have no faith that the Supreme Court will agree with me for many years.

Even so, I shouldn't have said, as I did at the very end of my previous post, that Judge Tauro's equal protection holding should be overturned, as if this was a statement about the kind of law I want to live under as a citizen. Rather, what I should have said is that he is deciding this issue at the wrong time and in the wrong way, and a court following existing law will almost certainly overturn it, with bad consequences to follow.
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No, the district court got it (mostly) right

Andrew Koppelman

Faking out Jack Balkin is no small accomplishment, but Judge Tauro managed to do it in his powerful although flawed opinions yesterday invalidating the definitional provision of the federal Defense of Marriage Act.

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Why the Guantanamo Transfer Litigation Matters

Steve Vladeck

Over at SCOTUSblog, Lyle Denniston has been providing a very helpful window into a mostly behind-the-scenes skirmish between the D.C. Circuit and District Judge Gladys Kessler over the latter's power to block the transfer of a Guantanamo detainee, Farhi Saeed Bin Mohammed, back to his native Algeria. As Lyle summarizes, the latest salvo came late yesterday, when a divided panel of the Court of Appeals overturned Judge Kessler's most recent order, clearing the way for Mohammed's return (Kessler had granted Mohammed's habeas petition last November).

I know it's difficult at times to keep tabs on the voluminous, fast-moving, and often sui generis litigation arising out of Guantanamo, but the central issue raised in Mohammed's case is, unlike what's true in many of these cases, a question with implications far beyond Guantanamo: do the federal courts in the exercise of their habeas corpus jurisdiction have the power to bar the transfer of a detainee to a country in which they credibly fear torture, or other forms of cruel, inhuman, or degrading treatment? In the post that follows, I briefly sketch out why this issue was not actually settled by the Supreme Court's 2008 decision in Munaf v. Geren, and why the D.C. Circuit was gravely incorrect in "Kiyemba II" to suggest that it was.
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Thursday, July 08, 2010

Be Careful What You Wish For Department: Federal District Court Strikes Down DOMA


Today Judge Joseph Tauro in the federal district court in Massachusetts struck down section 3 of the Defense of Marriage Act (DOMA) in two opinions, Gill v. Office of Personnel Management, and Massachusetts v. HHS. Section 3 of DOMA requires that marriage, for purposes of federal benefits programs, must be defined as the union of one man and one woman, so that same sex marriages cannot take advantage of any federal benefits programs. Gill holds that this violates the equal protection component of the Fifth Amendment because there is no rational basis for denying same sex couples already recognized in a particular state from receiving federal benefits. Massachusetts v. HHS holds that federal programs that deny benefits to married same sex couples violate the Tenth Amendment because they intrude into an function exclusively reserved to states, namely the definition and regulation of marriage. It also holds that selective funding of only opposite sex couples is not within the federal spending power under the General Welfare Clause because it places an unconstitutional condition on the receipt of federal funds.

I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not-- and I do not-- Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge-- who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are--is in a very different position than I am.

Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.
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One Cheer for State Capitalism

Frank Pasquale

(Review of Ian Bremmer, The End of the Free Market: Who Wins the War Between States and Corporations? (Portfolio, 2010).)

Ian Bremmer's The End of the Free Market is already one of the most celebrated nonfiction books of 2010. Reviewed worldwide, the book has been praised in many quarters. Bremmer's deep knowledge of world political economy is evident throughout this work. Yet the book's case for "free market" as opposed to "state" capitalism relies on generalizations that are too gross to capture the real fault lines in globalization. If we are lucky, Bremmer's work will encourage American policymakers to compare their own interventions in the economy with those of "state capitalist" regimes like China, and to copy best practices. If we are unlucky, its ideas could lead to economic stagnation in "free market" havens and new tensions between the U.S. and China.
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Wednesday, July 07, 2010

Is the United States a proper member of the Community of Democracies?

Sandy Levinson

Anne Applebaum had an interesting column in the Washington Post, tellingly titled "Democracy in Trouble," detailing a speech by Secretary of State Hillary Rodham Clinton in Krakow, Poland, on the 10th anniverary of the Community of Democracies founded by Madeline Albright. As Applebaum notes, the Bush Administration was not much interested in it--though support for "democracy" was a major theme of that Administration, and one of the former-President's favorite books was Natan Sharanksy's ode to democracy--and it has basically been revived by Poland. I have no desire to question the Secretary of State's commitment to democracy. Rather, as could be easily predicted by anyone familiar with my oeuvre, I continue to be amazed--and, of course, often enraged--by the complacent assumption that the United States is the kind of democracy that other countries should try to emulate. It's not only that the Constitution under which we operate is so distinctly anti-democratic in so many ways (which helps to explain the fact that no country that has drafted a constitution over the past four decades has looked to the US Constitution for inspiration), but, as noted in my previous post, that a number of the American states are truly dysfunctional in their inability to exercise effective governance. Could anyone, regardless of his/her place on the political spectrum, be optimistic about the American future, that the country is indeed "headed in the right direction"? The difference between me and most people who read Balkinization is that my pessimism derives from our Constitution more than the particular defects of given political "leaders," whether one thinks of Presient Obama, Sarah Palin, or anyone in between.

It may be, of course, that the majority of the American public is schizophrenic (or teenager-like) in assuming that one can have public services without having to pay for them through taxes, which raises yet more fundamental questions about whether "democracy" should be our mantra. In any event, it would be refreshing if Joe Biden, who has just lectured Iraqis on the need to "reason together" and overcome their ideological divisions, would turn his formidable talents (I am not being sarcastic) to considering whether the United States does not itself need fundametnal reform. After all, early in January 2011, he may well be asked to rule on whether the Senate can change theh filibuster by a simple majority vote. What he decides may well be be the single most important act of his vice presidency (as distinguished from the "advice," which is without legal force, that he may be giving the President.

Monday, July 05, 2010

Will Maryland lead the nation?

Sandy Levinson

An interesting story in today's Washisngton Post notes that Marylanders wil, thanks to their constitution, have the opportunity this November to vote to call a new constitutional convention that would be empowered to suggest significant revisions to the Maryland Constitution, whose present form goes back to the immediately post-Reconstruction Era. For obvious reasons, I hope that the good folks of Maryland will vote for such a convention and that, more to the point, it can serve as a model of the kind of constitutional reflection that is so desperately needed (and lacking) in the United States today. Unfortunately, the constitutional revision movement in California seems to have collapsed. And New York, another contemporary "failed state," will not have the next opportunity to vote for a new convention, as its constitution also allows, for some years.

Indeed, won't devotees of "federalism" at some point have to confront the fact that a striking number especially of our larger states are essentially terminally dysfunctional? I vehemently oppose the unwillingness of crazed congressional Republicans to pass legislation that might enable states to get through the crisis without further massive layoffs. On the other hand, if there is a silver lining to such truly anti-social behavior, it might be to illustrate that modern American states are incapable of functioning effectively without a significant federal presence, including the necessary infusion of funds when times are tough. Perhaps the Party of No will in fact triumph in the 2010 elections. I wonder what they will be saying in 2012, when the complete and utter lack of a "governing vision"--unless it is to return to the wisdom of Andrew Mellon and Herbert Hoover by cutting spending during a time of de-facto depression--is apparent for all to see.

Saturday, July 03, 2010

ACTA's Digital Enforcement Provisions

Guest Blogger

Margot Kaminski

[Ed.-- This is the fourth in a series of reports on the ACTA treaty negotiations which will significantly affect intellectual property rights. Previous installments are here and here, and here]

The Anti-Counterfeiting Trade Agreement (ACTA)’s digital enforcement provisions were just renegotiated in the most recent round of negotiations in Lucerne, Switzerland.

There hasn’t been much public discussion of ACTA’s Article 2.18 “Enforcement Procedures in the Digital Environment”, because the proposed language in the officially released draft from April is both provisional and overly complicated. There probably won’t be another draft released for public comment before the final text of ACTA is released at the end of this year.

These are parameters for open discussion of ACTA’s Internet section and its provisions.

In short: ACTA envisions an active, pro-rightsholder role for ISPs and other online intermediaries. This role is established not only by law, but also under government pressure for cooperation between intermediaries and rightsholders. ACTA may also limit the type of services that can fall into a “mere conduit” exception to notice-and-takedown.

Such cooperation combined with a change in definition of “mere conduit” will likely result in what Annemarie Bridy terms private ordering graduated response: graduated response by agreement between private companies, outside of government process.

ACTA does not, contrary to earlier discussions, export the letter of U.S. law. You can read ACTA as leaving room for the current DMCA—but it’s also possible to read conflicts. USTR should explain these differences. More importantly, the elements of U.S. law being exported are not accompanied by balancing provisions present in U.S. law.

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CJR interview on Yale's Media Freedom and Information Access Practicum


The Columbia Journalism Review interviews Nabiha Syed and me about the Media Freedom and Information Access Practicum we've started at Yale as part of the Knight Law and Media Program. MFIA is an externship program that connects Yale Law students with media attorneys to defend media freedom and access to information. It is the beginning of what we hope will be a fully funded clinic at Yale Law School devoted to free speech and freedom of information issues.

Friday, July 02, 2010

Supreme Court Holds That Congress Has Incorporated Entire Bill of Rights


Exclusive to Balkinization! Must cite Balkinization!

On Monday, June 28, 2010, in McDonald v. City of Chicago, the Supreme Court inadvertently held that Congress had already applied the entire Bill of Rights to the states through the Civil Rights Act of 1866. The Court held that the Civil Rights Act was intended to protect substantive rights, including the Second Amendment right to bear arms. The same evidence of legislative intent, however, shows that Congress sought to enforce the Bill of Rights generally against the states. This means, among other things, that Congress has enforced all of the remaining provisions of the Bill of Rights against the states: The Third Amendment, the Fifth Amendment Grand Jury trial right the Seventh Amendment civil jury right (depending on what that right actually is), and the Eighth Amendment's ban on excessive fines. Under the Court's new reinterpretation of this venerable civil rights statute, the Civil Rights Act of 1866, currently codified at 42 U.S.C. section 1981, offers a general guarantee of basic constitutional liberties against the states.

This is the kind of judicial activism that would make the Warren Court proud!
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Diversity Revisited

Mark Graber

No Protestant will sit on the Supreme Court of the United States if Elena Kagan is confirmed by the Senate. Many distinguished scholars, valued colleagues and well meaning friends are troubled by this possibility. They fear a Supreme Court with six Catholics and three Jews is insufficiently diverse. I believe these worries are misguided. Our diversity concerns should focus on historically underrepresented groups, not on achieving demographic balance.

Sample size is one reason for rejecting concerns about a Supreme Court with three Jews and six Catholics. Worrying about the lack of Protestants on the Supreme Court in 2010 is a bit like worrying about the number of Irish cellists in the Boston Symphony. We might be concerned if no Irish-American ever played for the Boston Symphony or if there are no Irish cellists in the United States or, perhaps, even if the Boston Symphony has never had an Irish cellist. The mere lack of an Irish cellist at present (I have no clue about the actual ethnic makeup of the Boston Symphony) is probably little more than a statistical oddity and unreflective of broader social practices. The present religious makeup of the Supreme Court seems a similar statistical oddity unreflective of broader social practices. Protestants have long been overrepresented on the Supreme Court, in the federal judiciary, in state judiciaries, and in most government offices. Protestant voices will be heard, even if no Protestant is on the Supreme Court. In a country where every President but one has been a Protestant, we might pause before demanding the Supreme Court demographically represent the United States.

Many standard justifications for diversity are substantially weaker when our concern is the temporary underrepresentation of historically overrepresented groups. Many people believe with good reason that (almost) every person of color in the United States suffers some disadvantages solely because they are not white. Few mainstream Protestants can plausibly claim that they are consistently victims of subtle religious biases. Members of historically under represented groups have important perspectives that are often invisible to decision makers unless some representatives of those groups are at the decision table. Few decision makers require the presence of a mainstream Protestnat to be aware of mainstream Protestant values. Living in the United States for a long period of time is sufficient.

My parents witnessed too many “No Jews (or Irish Catholics) Wanted” when they first applied for jobs. I suspect Elena Kagan’s parents have similar stories. We should not hang the same sign over the Supreme Court, even for one vacancy.

Cross-posted at Quoth the Raven: The University of Maryland Law Faculty Blog

Transcripts of the Kagan Hearings


The Washington Post has now published transcripts of the Kagan hearings. Here is Day One, Day Two, and Day Three. (Thanks to Bob Barnes of the Washington Post for the pointer).

Thursday, July 01, 2010

Would Cleveland Be Better Off With LeBron James or a New DaimlerChrysler Plant?

Ian Ayres

Crosspost from Freakonomics:

In my last post, I wrote about LeBron James’s conflicting objectives of pursuing money and championships. This conflict is particularly acute because the NBA salary cap prohibits many strong teams from offering James anything close to his market value.

But while NBA teams are constrained, nothing stops other actors from offering LeBron money to sign with a particular team. Ford dealers in the greater New York area could offer LeBron millions if he agreed to promote their dealerships and to sign with the Knicks or Nets. Fans of the Dallas Mavericks could put money in escrow that would only be paid if he agreed to play in Dallas.

Of course, there would be a huge incentive for individual fans to free ride on the efforts of others. Even if I would gain $100 in utility if LeBron signed with the Celtics, I would prefer for others to foot the bill instead of me.

But local and state governments are natural agents to overcome this kind of free-riding problem. The city of Cleveland or the state of Ohio could offer James a variety of financial incentives to re-sign with the Cavs. Cities routinely give financial incentives to teams — for example, subsidizing the cost of arenas — to keep the teams from leaving. The public subsidies are defended on a mixture of economic and hedonic grounds. Professional sports teams can generate tourism and job growth. And citizens might just be happier living in a place where they can have a local team to root for.

But these same arguments might also apply to a transcendent talent like James. In narrow economic terms, Cleveland and the state of Ohio might be hundreds of millions of dollars better off if LeBron stays put. Moreover, many local fans will be heartbroken if he leaves. Elected officials in Ohio understand both these points. That’s why even Ohio Governor Ted Strickland was willing to join in a musical plea (“We are LeBron” to the tune of “We Are the World”).

But if Ohio is willing to give business incentives, financial incentives, and tax incentives to encourage companies to move to Ohio, why not consider kicking in financially to try to keep one of the state’s prize assets. Turn LeBron into his very own “enterprise zone.”

In 2004, Ohio invested $535 million to expand a DaimlerChrysler Jeep facility in Toledo. But seriously, don’t you think the average voter would prefer to invest in LBJ?

Rent-seeking competition from other cities could push public LeBron bribes to astronomic levels. In 1993, one academic estimated that Alabama paid a whopping $200,000 per job created to lure Mercedes to its fair state. Inter-city competition might easily devolve into an inefficient “beggar thy neighbor” equilibrium.

The NBA might also want to nip this kind of signing side-payment in the bud. But at the moment, the league can’t block a city or state player tax incentive. (Memo to the league: during labor negotiations, you might push for a provision prohibiting players from entering into any contract that is conditioned upon a player signing for a particular team. Memo to union: resist this proposal.) Generally, the league should worry that inter-city competition would favor the larger cities where a superstar can be adulated by more fans. (This is a literal example of Sherwin Rosen’s classic “The Economics of Superstars.”) Tax incentives would tend to work against league parity.

But given endowment effects, Cavalier fans may have more to lose than bigger cities have to gain from winning this King-sized prize. If we add in a bit of Wizard of Oz loyalty — there’s no place like home — to James’s objective function, this tax-incentive arms race is a competition that the city of Cleveland just might win.

Public Opinion and Redistricting

Nate Persily

Joshua Fougere, Stephen Ansolabehere and I have placed on SSRN a draft of a paper to appear in the Election Law Journal and in Race, Reform, and Regulation of the Electoral Process: Recurring Puzzles in American Democracy (edited by Heather K. Gerken, Guy-Uriel E. Charles, and Michael S. Kang). No earth-shattering results in the paper, but I think it is the most comprehensive analysis to date of public attitudes (and nonattitudes) toward the redistricting process.

The paper -- titled Partisanship, Public Opinion, and Redistricting -- is available here.

The abstract appears below:

This paper analyzes recent survey data on Americans' attitudes concerning the redistricting process. We find, unsurprisingly, that a large share of the population has little knowledge about the redistricting process, but that residents living in a state with a recent redistricting controversy are more likely to hold opinions about the issue. Of those who do have opinions, their attitudes toward the redistricting process are reflective of their attitudes toward government generally. Members of the "out" party are more dissatisfied with the redistricting process when the "in" party controls the redistricting process, and satisfaction is generally greatest in states where government is divided between the parties. Consistent with such results, we also find Americans to be strongly supportive of vesting redistricting authority in an independent commission, as opposed to state legislatures.

Marshall, Kagan, and Martin Luther King

Mary L. Dudziak

My post today on
Republican senators this week pressed Supreme Court nominee Elena Kagan on the degree to which her views mirror those of her mentor Justice Thurgood Marshall, whom Kagan clerked for in 1987-88.

You might have thought Marshall himself was before the Senate. Sen. John Kyl of Arizona opined in his opening statement Monday that Marshall's judicial philosophy "is not what I would consider to be mainstream." Sen. Jeff Sessions of Alabama concurred, calling the landmark civil rights-lawyer-turned-judge "a well-known activist."

Kagan reminded the senators that if confirmed "you will get Justice Kagan. You won't get Justice Marshall."

There's an irony here. While Kagan and Marshall surely have important differences, there is something they have in common, but it's not what Kagan's Republican questioners have in mind. During confirmation hearings, both were criticized not only for their own ideas, but for those of another.
Continue reading here.

Law Podcast Series: American Constitution Society, UNL

Marvin Ammori

Friends, Law Scholars, Law Students:

I know your type.

You can't jog without your iPod. To run the miles, you need that melodic beat of the Black-Eyed Peas, the triumphal boasts of Jay-Z, the fluid rhymes of Snoop.

I feel you.

But you, like me, have always wished, deep down, that you could jog to the soothing cadence of Harvard Law professor Lawrence Lessig. You have often prayed you could punctuate each step of a morning jog with the faint Russian accent of Eugene Volokh. Yes, the UCLA law professor and blogger extraordinaire. You've often regretted putting down that footnote-laced Article on legal ethics of death penalty reform, just to get your daily run--or even to get into the car and run an errand.

I feel you.

I've been there.

And that's why today turns a new leaf.

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