Constitutional Redemption

JB

Harvard University Press has published my new book, Constitutional Redemption: Political Faith in an Unjust World, this month. Here is a description of the book from Harvard University Press:

Political constitutions, hammered out by imperfect human beings in periods of intense political controversy, are always compromises with injustice. What makes the U.S. Constitution legitimate, argues this daring book, is Americans’ enduring faith that the Constitution’s promises can someday be redeemed, and the constitutional system be made “a more perfect union.”

A leading constitutional theorist, Balkin argues eloquently that the American constitutional project is based in faith, hope, and a narrative of shared redemption. Our belief that the Constitution will deliver us from evil shows in the stories we tell one another about where our country came from and where it is headed, and in the way we use these historical touchstones to justify our fervent (and opposed) political creeds. Because Americans have believed in a story of constitutional redemption, we have assumed the right to decide for ourselves what the Constitution means, and have worked to persuade others to set it on the right path. As a result, constitutional principles have often shifted dramatically over time. They are, in fact, often political compromises in disguise.

What will such a Constitution become? We cannot know. But our belief in the legitimacy of the Constitution requires a leap of faith—a gamble on the ultimate vindication of a political project that has already survived many follies and near-catastrophes, and whose destiny is still over the horizon.

For those of you interested in conversion experiences, the last chapter of the book is entitled "How I Became an Originalist."
Posted 1:42 PM by JB [link]

U.S. Detention Needs Circa 2012

Deborah Pearlstein

Cross-posted at Opinio Juris

Bobby Chesney writes back with a thoughtful post responding to my question about whether the United States has forward-going detention needs in its counterterrorism operations that are currently unmet by the 2001 statute known as the AUMF. The question arises in light of Congress’ current debate over whether to pass (as the House already has) new legislation essentially extending and broadening existing use of force authority it passed in 2001.

Before I engage Bobby’s suggestions, a quick note principally to our readers not as steeped in domestic U.S. law who have written to ask what this debate is all about. So in grossly abbreviated form… As a matter of domestic U.S. law, the executive must have some affirmative font of authority for carrying out war-making and/or counterterrorism operations, either under the Constitution or under a statute passed by Congress. The Gitmo detainees and others who challenged the legality of their detention starting in 2002 argued, among other things, that the executive lacked such authority. In 2004, the U.S. Supreme Court held in a splintered plurality opinion that (a) the AUMF (which I quote in an earlier post) did give the executive the authority to detain, at a minimum, “an individual who…was 'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there”; and that (b) the Court’s interpretation of the scope of the AUMF was informed by “longstanding law of war principles.” Litigation in lower federal courts since then has reached some stasis regarding who else beyond the individuals described in Hamdi could be detained, and (although less clearly) how IHL informs this conclusion. Broadly speaking, the courts have read the current AUMF to authorize the detention of members of Al Qaeda, the Taliban, and “associated forces,” as well as those who, to some not entirely clear extent, “support” those groups, provided they’re connected at some level to the attacks of 9/11. The current debate is whether Congress should authorize the President to use force (including force to detain) against more than just these categories of individuals and groups, and whether or not connected to 9/11 per se.

Ok, that said, Bobby suggests there are two categories of individual the United States may need/want to detain in the coming years who he thinks may not be covered by the existing AUMF: (1) Al Qaeda-member detainees like KSM who we’re currently holding at Gitmo and who we may want to continue to hold after the cessation of active hostilities in Afghanistan (when IHL would presumably require Taliban members to be repatriated); and (2) a bomb-making expert (or the like) who’s a member of Al Qaeda in the Arabian Peninsula (AQAP), a group that Bobby (and John Dehn in a helpful comment to an earlier post) I think probably rightly understand as “ideologically but only arguably operationally aligned with al Qaeda” (John’s formulation). (FWIW, the State Department lists Al Qaeda and AQAP separately as designated foreign terrorist organizations. AQAP was added to the list in 2009.)

These are useful examples, but I’d say still don’t really make the case for new and improved use-of-force authorization. The first example is the easier one. KSM is the poster child for the terrorist who could and should (long ago) have been prosecuted in federal criminal court. That he hasn’t been is a moral and political (and legal) embarrassment brought about in substantial part because various members of Congress keep proposing laws like the one that passed along with the House bill yesterday, barring the President from prosecuting any foreign terrorist suspect, wherever he may be detained, in any criminal court. As I think I can safely say based on past discussions (not to mention recent posts), neither Bobby Chesney, nor Ben Wittes, nor Jack Goldsmith, nor Marty Lederman, nor I (all oft-times on opposing sides of these issues) think such a ban is a good idea. I also think it safe to say KSM will, at a minimum, face prosecution before military commission in any case. As for the non-KSM Al Qaeda member at Gitmo, particularly given the habeas cases already decided, I guess I’d say it’s pretty clear they’re considered ‘grandfathered in,’ as it were, under the existing AUMF. Hope of course springs eternal we might eventually just prosecute him, too.

What, then, of AQAP, which seems to be something of a post-9/11, quasi-independent franchise of bin Laden’s Al Qaeda (looking to profit, as it were, from the notoriety of the Al Qaeda brand name)? Let’s imagine for a minute that it is in fact this group and its ilk that Congress has in mind in thinking the President needs more detention authority than he has. If AQAP really didn’t crystallize til 2009 or thereabouts, and if its relationship to Al Qaeda per se is less than clear, maybe (maybe) the existing AUMF doesn’t extend. So if that’s who we’re after why tie such groups to the language of the 2001 AUMF at all? Why not let well enough alone 2001 AUMF-wise, start afresh, and draft a new authorization for the use of military force, all divorced from 9/11, that aims squarely at AQAP and, how might one say, its “ideologically aligned” groups? I can hypothesize at least two reasons why Congress hasn’t gone that route, and both of them suggest to me that we should be concerned about the route they’ve taken instead. First, Congress doesn’t want to bear the political heat of effectively declaring a new war, or a Version 2.0 war, as it’s politically far less costly to just take advantage of the appearance that any upcoming military engagements are one long continuation of the same fight. Second, imagine an authorization for the use of force that actually candidly described what it appears to me the bill’s sponsors have in mind. (I’m going to use exaggerated language here, but it’s in service of trying to clarify the point): “…all necessary and appropriate force against AQAP and allied or otherwise ideologically aligned groups engaged in terrorist operations.” Such a construction not only shares the overbreadth problems of the current formulation, it starts to sound a whole lot like the kind of war against Islamic extremism that both post-9/11 administrations have insisted they wish to avoid. And it tees up the strategic argument against such an approach that I think deserves serious attention.

Here, Suzanne Spaulding, former general counsel for the Senate Select Committee on Intelligence, former executive director of the National Commission on Terrorism, makes the case better than I.

Osama Bin Laden sold the notion of a “Global Jihad” as a way of bringing disparate terrorist groups, who had been locally or regionally focused, into his fight with the West. He convinced them that they couldn’t change their local regimes, the “near enemy,” because those regimes were backed by the “far enemy,” the United States and other Western nations. The only way they could succeed with their local objectives, he argued, was to join his global fight against the far enemy…. [T]he events of 9/11 provoked the United States into declaring its own Global War, which Bin Laden used to support his claim that Muslims were called to join in the Global Jihad. No matter how many times US political leaders asserted that they were not engaged in a War on Islam, Bin Laden and his followers pointed to America’s Global War to inspire new recruits. The reason the Arab Spring was such a devastating blow to Bin Laden’s strategy was that the near enemy was overthrown by the efforts of the local population, not as a result of the Global Jihad.… With Bin Laden’s death, the most effective advocate for the globalization of terrorism is gone. Tensions have long existed within al Qaeda between those who believed in the imperative of going after the far enemy and those who thought poking a stick at the West was folly and the fight should be taken more directly to the near enemy. Those fissures should now grow, further complicating the struggle for succession….If we can undermine the appeal of a global movement, that would have significant long-term benefits.

If one buys this case, even a bit, then it strikes me important reason for hesitating to start the post-bin Laden era by declaring war all over again.
Posted 2:16 PM by Deborah Pearlstein [link]

More on the New AUMF

Deborah Pearlstein

Cross-posted at Opinio Juris

The U.S. House of Representatives today passed its version of the 2012 National Defense Authorization Act, including provisions that prevent any of the Gitmo detainees (or indeed any terrorism suspects) from being subject to criminal trial, and also “affirms that the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces,” whomever those “forces” might be. Mercifully, there’s still the Senate and the President’s threatened veto standing between the House bill and the law of the land.

In the meantime, responding to my post below arguing that a new authorization for use of force against Al Qaeda et al. is a bad idea, Bobby Chesney writes the following:

“[I]t seems to me that Deborah’s argument to the contrary–i.e., that the 9/18/01 AUMF is indeed going defunct simply by virtue of the passage of time–is precisely why the proponents of a new AUMF feel it worthwhile to restate explicitly that the executive branch can use military force in dealing with al Qaeda. From this point of view, it seems to boil down to whether one thinks that the potential for temporal expiration of the existing AUMF is a good or bad thing. I think it is a bad thing, as I do not think that the need for military force against al Qaeda (and hence the utility of having Congress actually authorize such force, rather than obliging the executive branch to fall back on Article II arguments) has dissipated sufficiently notwithstanding UBL’s death.”

I had expressed the view that the 2001 AUMF had some sort of implicit time limit attached, a limit one could understand as either a function of the passage of time or, as Bobby sensibly notes elsewhere, more specifically as tied to the facts on the ground. (At the moment, the passage of time has seemed to be associated with the weakening of Al Qaeda per se, but it is true that circumstances could change.) To be clear, I had O’Connor’s warning about AUMF interpretation in Hamdi in mind: “Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”

But Bobby’s more important point is the one I quote above – namely, that how one feels about the new legislation depends on whether one thinks we need forward-going authority to, say, detain members of Al Qaeda we might catch, say, tomorrow. In this respect, I think Bobby’s put his finger on exactly the key issue, and it’s a biggie. It’s about whether we want to continue to give the President very broad detention authority going forward. Bobby thinks he needs it. I’m not so sure.

Here’s my thinking. Let’s say we can assume, based on the outcome of habeas litigation to date, that the detainees at Gitmo and the detainees now held (or picked up in the next year or two, as the U.S. transfers detention operations to Afghan control) in Afghanistan will generally be considered by the courts and the executive to be covered by the existing AUMF (to the extent the government can establish the relevant facts). Beyond these cases, how do we measure or assess the need for forward-going detention authority to combat Al Qaeda, the Taliban and “associated groups”? Historically, one way of making this assessment has been to defer to executive judgment. This ‘deference’ was on the grounds, the argument has gone, that the executive has the best access to information and insight into U.S. security needs. Here of course, the executive actually opposes the bill. And the initiative to expand or at least prolong detention authorization comes not from the executive branch but from folks on the Hill who, as best I can tell, haven’t spent much time formally (or informally?) seeking executive branch or other putatively expert opinion on the matter.

Another way of making the case for new and improved detention authority is to demonstrate independently that there is some unmet need out there – for example, that executive agencies have been hamstrung in their counterterrorism activities by a perceived lack of existing detention power. Given the degree of classification involved in U.S. counterterrorism operations in such matters, that kind of independent case has always been difficult to make. Indeed, to the extent I’ve seen such arguments, they seem heavily dependent on, at best, individual and unverifiable anecdotal accounts. Or on slippery logical claims that find causal connections where causation is entirely unclear. (For example, the argument that the United States is engaging in more targeted killing operations in the Af-Pak theater because they’re not sure how much detention authority they have. It seems equally plausible to me that the United States is engaging in more targeted killing operations because, say, after a decade of field intelligence collection we have a better sense of where lawful targets may be found than we did when we opened Gitmo in 2002.)

In any case, the new bill puts a premium on making a contemporary and persuasive case in favor of detention authority that lasts longer (and, under the current version, sweeps more broadly) than the authority we’ve found sufficient to deal with the detention operations we already have under way.
Posted 4:43 PM by Deborah Pearlstein [link]

About that New AUMF

Deborah Pearlstein

Cross-posted at Opinio Juris

Congress is debating a defense authorization bill this week that would not only prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, but also effectively double down on the Authorization for Use of Military Force (AUMF) legislation Congress passed just after the attacks of 9/11. Here’s the bill. Recall that the 2001 AUMF has come to serve as the key legal authorization for ongoing detentions in Afghanistan and Guantanamo, as well as (at least in part) for U.S. targeting operations overseas. While congressional efforts to hamstring the criminal prosecution of terrorists are no longer new – though still just as misguided – the re-authorization for the use of force language is new, and efforts to discern what it all means have filled my inbox to overflowing. For my money, I’d say the proposed language makes matters worse for a host of reasons (more on which in a sec). So I was delighted to see the Obama Administration issue a statement yesterday threatening to VETO the entire bill if the set of detainee-related provisions are included. Here’s their take. Although the Administration has complained about the Gitmo prosecution-and-transfer restrictions in the past, this is the first time it has issued a veto threat to underscore the seriousness of its objections.

Bobby Chesney raises the question whether the veto threat should be read to extend to the AUMF redux provisions. I sure read it that way, and we should count on the Administration to say publicly otherwise if there’s any serious question of its intent. The fact that it’s threatening a veto here and hasn’t raised such a threat to earlier, fundamentally identical, transfer restriction provisions might favor the reading that it sees something new in this bill it doesn’t like even more than it didn’t like earlier bills. In any case, I hope the threat extends. Without parsing in detail, here are three of the reasons why I think the new language is a mistake. (I’m also pasting copies of the relevant bills - the original AUMF and the newly proposed language - below so you can judge for yourself. )

(1) A new use of force authorization resets the detention clock. Since 2001, courts interpreting the scope of the original AUMF have at times suggested that there’s probably some implicit time limit on the effectiveness of the authorization. Did the AUMF suffice to authorize the detention of Afghan belligerents in 2001? Sure. Would it suffice to authorize the detention of Somali belligerents in 2021? A harder sell. Interpreting the provision this way only makes sense. It’s hard to believe Congress really think it was buying into an indefinite authorization to detain anywhere, anytime for the rest of U.S. history. But new legislation at this point probably would be seen to extend whatever implicit time limit exists. With the U.S. working to hand over detention operations in Afghanistan to the Afghans, and still committed (for what it’s worth) to reducing the detention population at Guantanamo, what’s the case for getting another ~10-15 years worth of detention authority out of Congress in this conflict?

(2) A new authorization resets the litigation clock. Whatever argument the new bill’s supporters might have that this bill is simply meant to codify the detention standard the courts have already adopted in interpreting the original AUMF (and all such arguments I’ve heard require reference to deep legislative history and other extrinsic sources of interpretation that folks like Justice Scalia, among others, abhor), I think it’s impossible to say that this bill will do anything to clarify the work the courts have already done in interpreting the scope of the original AUMF – and more likely does much to throw stones into those already plowed fields. Judging from my own, highly skewed sample of email correspondents, ask 20 lawyers what they think the new bill means, get 20 different answers. Still think legislation is a cure-all for interpretive uncertainty? I’m thinking the 2005 Detainee Treatment Act, the 2006 Military Commissions Act, and the 2009 Military Commissions Act should be enough to squelch that hope. At this point, new legislation is a step away from the legal resolution of detainees’ status, not toward it.

(3) Overbreadth. Who exactly are forces “associated with” Al Qaeda and the Taliban? This is hardly a new concern, but unlike other aspects of the scope of detention authority, years of litigation and briefing have actually done fairly little to clarify this. If the relevant associated forces are groups in, say, Afghanistan, that we’ve spent a decade mapping out, then why not just name them? If the notion is to cover some heretofore unidentified force that might one day pose a threat, why legislate about them now, and require that they be tied (however loosely) to the weakening Al Qaeda? Congress is quite capable, with surprising speed these days, of authorizing the President to use force against threats that arise. If one thinks legislation is of value in part because it forces democratic deliberation over politically salient issues, how is this value served if Congress is voting for something it doesn’t in any meaningful way understand? This “associated force” problem already exists in the current AUMF. Recapitulating it here – especially given the benefit of 10 years of war-fighting and intelligence we didn’t have when we hurriedly passed the use of force authorization in 2001 – seems an unnecessary, and therefore concerning, fudge.

For the record, here’s the text of the current AUMF, followed by the text of the proposed language below.

AUMF OF 2001
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated
forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Posted 4:56 PM by Deborah Pearlstein [link]

The Liu Debate and the Promise of New Textualism

Doug Kendall

One of the really striking things about Goodwin Liu’s confirmation debate in the United States Senate last week was the fact that there was almost nothing said by his Senate opponents about Liu’s testimony, under oath, at his two hearings before the Senate Judiciary Committee. The reason is simple: there was not a single objectionable thing in that testimony. Instead, Senate Republicans based their entire case against confirmation upon a handful of things Liu said in prior years in his scholarship, completely ignoring Liu’s measured and compelling Judiciary Committee testimony.

This is not new. Long ago, the judicial confirmation process devolved into an exercise in cherry picking, with opponents looking for and focusing exclusively upon the most objectionable parts of the nominee’s record. But the debate last week—if you can call it that—masks how similar the testimony of conservative and liberal nominees has become in recent years about issues of judicial method. When it came to judicial method, John Roberts, Elena Kagan, and Goodwin Liu all told the Senate Judiciary Committee some version of the same thing: “judges have a limited role; they must follow the law, not make it up; constitutional interpretation starts with the text of document, which is fixed and sometimes determinative; at other times, the text speaks in more general terms and establishes principles, not rules, that judges must apply to a very different world than that inhabited by our nation’s founders.”

The cynical explanation is that judicial nominees follow boilerplate talking points during confirmation hearings that each side uses because they work—and then, once on the bench, the newly-confirmed judges toss aside these promises of legal fidelity and restraint. But maybe we shouldn’t be this cynical. Perhaps the similarity among judicial nominees’ talking points is less a result of political posturing and more a reflection of the fact that, when it comes to judicial method, there is less disagreement among liberals and conservatives than meets the eye. Despite the continued talk about the sharp divide between conservative originalism and progressive living constitutionalism, there is a good deal of common ground on constitutional interpretation that lies between these poles. Perhaps the similar testimony from ideologically diverse judicial nominees is a reflection of an emerging consensus on constitutional interpretation that is real and genuinely important.

A discussion draft of a paper written with support from Constitutional Accountability Center by James E. Ryan, the William L. Matheson & Robert M. Morgenthau Distinguished Professor at the University of Virginia School of Law, focuses a spotlight on this emerging consensus. The paper argues that the biggest disagreements among liberals and conservatives are no longer about judicial method, but rather about the meaning of the Constitution itself. Due to be published in its final version in the University of Virginia Law Review in November, the paper is entitled Laying Claim to the Constitution: The Promise of New Textualism. Here’s the abstract for the paper, which is also on SSRN:

Living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there is increasing convergence in the legal academy around what might be called “new textualism.” The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means.

This might not sound revolutionary. But it is. This Article explains how we have arrived at this point, why it is significant, and what work remains to be done. In particular, it explains why new textualism is especially important to progressives, as it offers them both a principled and promising means by which to lay claim to the Constitution. New textualists are effectively rebutting, once and for all, the false but still-common perceptions that only conservatives care about the text of the Constitution and that the Constitution itself is fundamentally a conservative document. If new textualists succeed in their effort to show that the Constitution - all of it, including the amendments - is actually a quite progressive document, this reorientation would represent the most significant shift in constitutional theory and politics in more than a generation.

Jack is one of the scholars whose work is featured prominently in Jim’s paper, so I hope it will be of significant interest to the readers of his blog. Laying Claim to the Constitution takes on a lot of conventional wisdom on the left and on the right. We are releasing it in draft form to stir discussion and debate as the paper takes its final form. Your input is deeply valued.
Posted 10:02 AM by Doug Kendall [link] (25) comments

The U.S. Perspective on the Legal Basis for the bin Laden Operation

Marty Lederman

(cross-posted at Opinio Juris)

Shortly after the recent military operation against Osama bin Laden, several voices in the blogosphere expressed puzzlement that the Obama Administration (allegedly) had not provided a sufficiently thorough legal justification for the use of lethal force in Abbottabad. What is truly distinctive about the bin Laden case, however, is not the absence of legal explanation (after all, military forces rarely provide a public legal account when they use force against a particular target in an armed conflict), but instead that the Executive has been so unusually forthcoming about its views on the legal aspects of the bin Laden operation.

For starters, the President's initial address to the Nation on the evening of May 2d did not refer expressly to the law, but the President's remarks revealed the careful attention that had been given to proportionality and distinction—fundamental requirements of the use of force under the laws of armed conflict: the possible lead on bin Laden’s whereabouts “was far from certain” and “took many months to run . . . to ground,” until “we had enough intelligence to take action”; the operation was “targeted” and the forces “took care to avoid civilian casualties.” (Shortly thereafter, the Administration also pointedly adverted to the careful and deliberate efforts to effect a Muslim burial. That and the President’s subsequent decision not to release the death photos also reflect a sensitivity to humanitarian principles, whether or not those choices were thought to be required by international law.)

Then, on May 4th, the President’s chief spokesperson recited verbatim from an official statement designed specifically to address legal concerns that had begun to be heard. He emphasized that the operation was conducted in accord with the laws of war:

Q: The U.N.’s top human rights official said yesterday that she hoped the administration would release full details about the operation in order to settle any questions about whether it was legally justifiable. Does the administration feel or have any plans that it needs to say anything more about how the operation was carried out, the rules of engagement, to justify the action that happened on—

MR. CARNEY: Well, let me address that question and I’ll—forgive me, I’m going to read so I’m very precise here. The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war. The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans. Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

Finally, this past Thursday, State Department Legal Adviser Harold Koh provided a more detailed legal explanation over at Opinio Juris.

From these and other Administration statements, I believe it’s possible to piece together in some detail the Administration’s views of the legal basis for the bin Laden killing (with one possible and understandable exception, noted below). In this post, I’ll try to canvass what appear to be the Administration’s views of relevant international and domestic law questions, respectively.

Please note that I don't intend this post to be a defense of each and every one of these legal propositions; my objective here is simply to enumerate in one convenient place the various legal rationales that the Administration can fairly be thought to have adopted—which I hope will, among other things, help to facilitate debate and discussion with respect to the distinct legal questions.

Although my recent service in the Department of Justice, including at the time of Harold Koh’s earlier speech to the American Society of International Law, obviously provided me with some insight on these matters, my observations here are based entirely on public sources, and do not reflect any classified or other confidential information to which I might have had access when I worked at DOJ. And, of course, I do not here speak for the Administration. As noted below, in some instances I am merely speculating as to the Administration's views; and in others, my suppositions might be mistaken, or might reflect views the Executive branch has not yet settled upon conclusively.

As for international law:

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Posted 12:31 AM by Marty Lederman [link]

The Open Carry Dilemma

Adam Winkler

In Tuesday’s Los Angeles Times, I have an op-ed arguing that California should not enact a proposed law that would prohibit people from openly carrying firearms in public. The problem with the ban is that it might lead, ironically, to more people carrying guns in public. Which would you prefer: seeing an occasional gun openly displayed on the hip of someone standing in line at Starbucks, or having many more people carrying hidden guns every time you go out?
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Labels: constitutional law, guns, right to bear arms, second amendment

Posted 12:30 AM by Adam Winkler [link]

Brown v. Plata: The Prison Photographs

Jason Mazzone

In Appendix B to his opinion for the Court today in Brown v. Plata, Justice Kennedy reproduced two photographs of the interior of California prisons. (The photos are at page 57 of the opinion.) One photographs is from Mule Creek State Prison in 2008. The other is from the California Institution for Men in 2006. Both photographs show male prisoners on and standing by metal bunk beds. In each photo, some of the prisoners are shirtless (the photos were both taken in August). Several of the men have extensive tattoos on their upper bodies.

The Supreme Court occasionally includes images in its opinions when a pictorial depiction seems stronger than mere words. The obvious reason for Kennedy's use of the two photographs today is so readers will see for themselves what the conditions within the prisons are like--and thereby understand better the reason for the Court's endorsement of the extraordinary remedy of a mass release.

Using images, though, is a tricky business and it's not obvious that these photographs will have the effect Kennedy intended.
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Posted 4:51 PM by Jason Mazzone [link] (9) comments

What's New about the "New AUMF"?

Jonathan Hafetz

An important question surrounding the new (or renewed) military force authorization now working its way though Congress is whether, and more precisely how, it changes and expands upon the existing Authorization for Use of Military Force (AUMF), passed by Congress three days after the 9/11 attacks. The answer depends largely on how one views the current AUMF and the gloss that the courts and two administrations have put on it.
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Posted 12:55 PM by Jonathan Hafetz [link]

"Will Legal Education Remain Affordable, By Whom, And How?"

Brian Tamanaha

In 1987, John Kramer, the Dean of Tulane Law School, published an article raising concerns about the adverse consequences of ever-increasing tuition. The article begins:

Law schools for the last twenty years have been testing the elasticity of demand for their product. As tuition has increased each year, outpacing even the rate of inflation, law schools have been pressing toward the point where significant numbers of college graduates may decide that it makes good economic sense to seek less expensive forms of graduate education or forgo additional credentials altogether....

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Posted 12:36 PM by Brian Tamanaha [link] (2) comments

Junot Diaz on Responsibility for Haitian Poverty

Frank Pasquale

Earthquakes in Japan and Haiti have raised many troubling issues of democratic accountability and structural disadvantage. Writing in the Boston Review, novelist Junot Diaz offers a compelling perspective on the Haiti situation, still desperate over a year after the shock. As he reminds us, "Haiti is by nearly every metric one of the poorest nations on the planet—a mind-blowing 80 percent of the population live in poverty . . . two-thirds of the workforce have no regular employment, and, for those who do have jobs, wages hover around two dollars a day." Things were terrible before the earthquake, and there is no dream of dramatic improvement after, even if the remaining two thirds of the money pledged to Haiti actually finds its way there.

In the wake of such a disaster, it's easy to think of the earthquake itself as the main cause of misery. Or perhaps some natural economic equilibrium led Haiti to be so vulnerably impoverished. But Diaz explores the history of the place, and the many ways that political decisions forced its people into ever more marginal positions on the global stage. As he did for the Dominican Republic in The Brief Wondrous Life of Oscar Wao (called the novel of the decade by New York Magazine), Diaz confronts in Haiti the many interventions of the developed world that contributed to (and perhaps determined) the situation today. It is a long list, but worth recounting in full:
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Posted 10:04 AM by Frank Pasquale [link]

Bring Back Apprenticeships

Gerard N. Magliocca

I've read Brian's posts on the escalating costs of legal education with interest, as the debt burden that law schools impose on our students is an issue that many people are concerned about. I'm not an administrator, so I'm not sure that I have a good handle on what should be done, but here is one idea that is worth discussing: the revival of apprenticeships as an alternative to law school.

For much of the nineteenth century, the only kind of legal education involved "reading law" with a practicing attorney for a few years and then passing the bar exam (if there was one). Until the 1920s, all states permitted lawyers to gain admission to the bar in this fashion assuming they passed the bar exam. Justice Robert Jackson is the most famous modern lawyer who took this route, and his lack of a formal legal education probably helps explain why he was such a great writer. Today, though, only seven states allow students to become lawyers without a J.D. The decline of the apprenticeship model is largely due to pressure from the ABA, which wanted greater standardization and professionalization in legal teaching.

I think it is time to reexamine this issue. Enhancing the apprenticeship path would lead to several positive results. First, it would give people a way to obtain their education without incurring a mountain of debt. Second, it would give people a more practical kind of training if that is what they want. Third, it would put competitive pressure on at least some law schools to do a better job of educating students at a lower cost.

While this would not be a silver bullet, I see no downside to making apprenticeships more available, either by repealing state laws that give law schools a monopoly on admission to practice or by encouraging lawyers and prospective lawyers to consider doing this. (You could easily imagine the ABA acting as a clearinghouse to match willing masters and apprentices, for example.)

I'm going to allow comments on this one. I may just open all of my posts to comments from now on.
Posted 8:22 AM by Gerard N. Magliocca [link] (15) comments

Beyond Cyber-Utopianism

Frank Pasquale

What encapsulates the ethos of Silicon Valley? Promoting his company's prowess at personalization, Mark Zuckerberg once said that, "A squirrel dying in front of your house may be more relevant to your interests right now than people dying in Africa." Scott Cleland argues that "you can't trust Google, Inc.," compiling a critical mass of dubious practices that might seem quite understandable each taken alone. Apple's "reality distortion field" is the topic of numerous satires. As the internet increasingly converges through these three companies, what are the values driving their decisionmaking?

For some boosters, these are not terribly important questions: the logic of the net itself assures progress. But for Chris Lehmann, the highflying internet-academic-industrial complex has failed to think critically about a consolidating, commercialized cyberspace. I was a big fan of Lehmann's book. His review of Clay Shirky's Cognitive Surplus is is both scathing and insightful:

With the emergence of Web 2.0–style social media (things like Facebook, Twitter and text messaging), Shirky writes, we inhabit an unprecedented social reality, “a world where public and private media blend together, where professional and amateur production blur, and where voluntary public participation has moved from nonexistent to fundamental.” This Valhalla of voluntary intellectual labor represents a stupendous crowdsourcing, or pooling, of the planet’s mental resources, hence the idea of the “cognitive surplus.” . . .

[But why] assign any special value to an hour spent online in the first place? Given the proven models of revenue on the web, it’s reasonable to assume that a good chunk of those trillion-plus online hours are devoted to gambling and downloading porn. Yes, the networked web world does produce some appreciable social goods, such as the YouTubed “It Gets Better” appeals to bullied gay teens contemplating suicide. But there’s nothing innate in the character of digital communication that favors feats of compassion and creativity; for every “It Gets Better” video that goes viral, there’s an equally robust traffic in white nationalist, birther and jihadist content online. . . .

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Posted 11:12 PM by Frank Pasquale [link]

Information About Law Schools, Circa 1960: The Cost of Attending

Brian Tamanaha

The Association of American Law Schools (AALS) produced a comprehensive study of law schools in the late 1950s, sending detailed surveys to 129 law schools, with a 90% response rate. Here are a few interesting tidbits about the cost of attending law school:

Median annual tuition and fees at private law schools was $475 (range $50-$1050); adjusted for inflation, that's $3,419 in 2011 dollars. The median for public law schools was $204 (range $50 - $692), or $1,550 in 2011 dollars. [For comparison, in 2009 the private law school median was $36,000; the public (resident) median was $16,546.]

The report expressed concern about cost: "The cost of attending law school at least doubled in the [past] 16 years..., raising the question whether able, but impecunious, students are being directed away from law study."

14% of students received scholarship aid; just over half of this aid was for "scholastic performance" (merit scholarships to attract top students) and the remainder for "economic need."

To provide additional financial support, the great bulk of law schools had loan funds, which were used "in a good many schools in smoothing the financial path of numerous students." However, almost half of the schools reported that students were reluctant to take out loans owing to "fear of debts, particularly during the low income years immediately after graduation."

Schools at the time were swiftly moving away from merit based scholarships. "The dean of one large and famous law school dissented vigorously from the idea of buying highly qualified students by scholarships, apart from need." The Report observed:

Competitive bidding for top students has been abandoned or minimized as the colleges have shifted to the policy of grants only in case of need and limited to extent of need....The spiraling cost of competitive bidding was enough of a nightmare to persuade the stubborn, and the waste of funds by scholarships to many who did not need them while deserving students lost a chance of an education was intolerable. The rapidity of the retreat from that form of recruitment is perhaps the strongest evidence of its evils, and the testimony comes from full experience.

Posted 5:06 PM by Brian Tamanaha [link] (13) comments

The Pitfalls of Law Avoidance: War Powers and Hostilities

Guest Blogger

Brian Finucane

As commentators and congressmen have noted, Friday marked the 60 day deadline imposed by the War Powers Resolution for obtaining congressional support for the use of US military force against Libya. Rather than seeking such support, lawyers in the Obama Administration appear to be considering ways of tweaking the US role in Libya and framing continuing involvement such that the United States is no longer participating in “hostilities.”

According to the NYTimes “[o]ne concept being discussed is for the United States to halt the use of its Predator drones in attacking targets in Libya, and restrict them solely to a role gathering surveillance over targets . . . By ending all strike missions for American forces, the argument then could be made that the United States was no longer directly engaged in hostilities in Libya, but only providing support to NATO allies.”

This is a bad idea for reasons that have nothing to do with the War Powers Resolution. Under the law of armed conflict, although fighters may be attacked at anytime, civilians may only be subject to attack while they are directly participating in hostilities. The proposed role for drone aircraft–collecting tactical intelligence for targeting–constitutes “direct participation in hostilities.” Even if he is not pulling the trigger or a combatant, a spotter (such as a Predator drone operator) is still subject to attack as a direct participant in hostilities.
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Posted 7:25 AM by Guest Blogger [link]

On Health Care, Romney's Critics Also Have Some Explaining to Do

Neil Siegel

If Mitt Romney has some explaining to do to fellow conservatives for supporting health care reform in Massachusetts, some of his fellow conservatives have some explaining to do to the federal courts.

In an effort to address a potentially serious impediment to his receiving the Republican nomination for president, Mr. Romney recently called health care reform in Massachusetts “a state solution to a state problem.” But he is having a very difficult time persuading members of his own party—including those who are bringing or supporting federalism challenges to the Affordable Care Act—that federalism distinguishes the individual mandate in the Massachusetts plan from the individual mandate in the ACA.

The reason why Mr. Romney is making little political headway with his invocation of states’ rights is obvious enough. As I observed in a letter to the editor in today’s New York Times, the core conservative objection to the individual mandate is not that it is offensive to constitutional federalism, but that it is offensive to individual liberty.

For example, the New York Times recently reported here that Mr. Romney’s “embrace of the mandate—a policy some Republicans once had favored but nearly all now reject as unwarranted incursion by the government into personal decisions and private markets—seemed to trump his larger states’ rights argument for some conservatives.” James Capretta, an associate director of health care policy at the Office of Management and Budget during President George W. Bush’s first term, was quoted in the Times article as saying that Mr. Romney “was for [the mandate] when he was governor and now it’s clearly something that the broad coalition of conservatives feels is not a good idea at the national level or at the state level.”

But if Mr. Romney fails to engage the principal source of conservative opposition to the federal mandate, he perfectly captures the basic rationale of the lawsuits challenging the ACA.

As I argue in a new paper, this rationale is unpersuasive; the individual mandate in the ACA is within the scope of the commere power. Individuals who have the financial means to obtain health insurance coverage but decline free ride on the benevolence of others. Moreover, the scope of this collective action problem disrespects state borders in light of the interstate mobility or presence of individuals and insurances companies. Free riders may be “inactive” in insurance markets for the time being, but their inactivity is a problem, not a reason why Congress is powerless to offer a solution. Congress can offer a solution using its commerce power when the states are “separately incompetent” (as the Framers put it) to address the problem effectively on their own because of spillover effects.

In short, the distinction between inactivity and activity has nothing to do with the limits of the commerce power. The distinction between individual and collective action by states has much to do with the limits of the commerce power.

Mr. Romney's present lonely position is borne of political necessity and misunderstands what qualifies as “a state problem.” But it at least has the virtue of being consistent with the grounds on offer from those who are asking the federal courts to invalidate the individual mandate in the ACA.
Posted 11:03 PM by Neil Siegel [link]

More on Mazzone

Sandy Levinson

It would really be easier if we allowed opinions, so I will do so, should Jason wish to continue this conversation without our having to engage in completely independent posts.

I appreciate the tone of his reply, but I still think he's dead wrong. As Jack has suggested, there is no reason whatsoever to treat the phalanx of Republican no votes as "sincere" assessments of Prof. Liu's qualifications for office. Prof. Liu was endorsed by, among others, Ken Starr and Clint Bolick, who are scarcely catspaws of the dreaded liberal conspiracy to take over the judiciary. If one could take the Senate seriously as a forum for "deliberative democracy"--which is preposterous--then one might take seriously the refusal of 43 Republicans to say no to even bringing him for a vote. But the vote is nothing else than political thuggery made possible by the abuse of Rule 22 (which, to the sure, Democrats don't have the spine to challenge).
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Posted 12:03 AM by Sandy Levinson [link] (18) comments

Further Thoughts on Goodwin Liu Vote

Jason Mazzone

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Posted 8:20 PM by Jason Mazzone [link]

Playing hardball with Goodwin Liu, or the Gang of 14 deal implodes

JB

Jason's post shrugging his shoulders at the failure to get 60 votes for cloture for Goodwin Liu's nomination to the 9th Circuit misses what I think is the big picture.
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Posted 8:11 PM by JB [link]

Jason Mazzone is wrong

Sandy Levinson

My colleague in blogging doesn't take comments, so I must register my opposition to his new post this way. Begin with his last comment. There is no plausible argument that getting 52 votes in favor of cloture counts as a negative vote on the merits. The Senate Republicans are committed to the proposition that they will do "whatever it takes" to deny President Obama any victories whatsoever. (They are seriously willing to contemplate a default of American financial commitments should Obama not raise the white flag of surrender with regard to the maintenance of the American welfare state.) Only Lisa Murkowski, who had been thrown overborad by Mitch McConnell and his merry band during last year's election in Alaska, had the integrity to stick with what used to be the Republican position--i.e., that a president's nominee deserved an up-or-down vote. It is dismaying in the extreme to see Prof. Mazzone buying into a truly pernicious Republican argument that Goodwin Liu is unqualified to be a federal judge.
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Posted 6:25 PM by Sandy Levinson [link]

Goodwin Liu and Supreme Court Vacancies

Jason Mazzone

Last month, liberal commentators proposed that Justice Ginsburg and Justice Breyer retire now so that President Obama can put a Ginsburg-clone and a Breyer-clone on the Supreme Court in advance of the 2012 elections. That proposal struck me as unseemly, crass even. Both Ginsburg and Breyer are active, engaged members of the Court and there is no indication that they are slowing down or under-producing. Today's failed cloture vote on Goodwin Liu's nomination to the Ninth Circuit makes the early retirement proposal also unwise.
Posted 4:21 PM by Jason Mazzone [link]

Disaster relief and the American welfare state

Sandy Levinson

First tornadoes, now floods of historic proportions. It would surely not be surprising if President Obama not only visits Mississippi and Louisiana, just as he earlier visited Alabama, but also signs further “disaster relief” and “state of emergency” proclamations. These will serve, among other things, to transfer resources from the national government to the localities and individuals who have suffered losses.

No doubt, most Americans will approve. This is, after all, what members of a community do when their neighbors are in need. But there is nothing self-evident about the legitimacy of disaster relief. There were real debates in the late 1700s about the propriety of the national government helping out Savannah, Georgia, or Alexandria, Virginia, after being ravaged by terrible fires. What, after all, was the "general welfare" interest involved? Let Georgians and Virginians take care their own, and leave the national government out of it, said many Jeffersonians. Ron Paul, currently running for the Republican nomination for President on a de-facto libertarian platform, is very much in this tradition. He has recurrently voted against disaster relief. "Is bailing out people that chose to live on the coastline a proper function of the federal government?" he has asked. Why do people in Arizona have to be robbed in order to support the people on the coast?"

Indeed, Paul is very much in the spirit of an earlier Democratic President, Grover Cleveland, who in 1887 vetoed an act to help “drought-stricken counties of Texas.” Cleveland readily conceded that “there has existed a condition calling for relief.” However, the fact that Congress wished “to indulge a benevolent and charitable sentiment through the appropriation of public funds” did not justify his signing the bill. He could, he said, “find no warrant for such an appropriation in the Constitution.” The Constitution does speak of spending for the “general welfare,” but Cleveland harrumphed that what was taking place in Texas counted only as “individual suffering” the relief of which would contribute nothing to the “general welfare” properly understood. “A prevalent tendency to disregard the limited mission of [national] power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that though the people support the Government the Government should not support the people.

Cleveland has long since been forgotten, and properly so, by his Democratic successors.. More to the point, most Democrats have a capacious notion of “disaster” than can include, for example, millions of Americans out of work because of structural changes in the economy for which they bear no conceivable responsibility. Republicans, on the other hand, sound more and more like Cleveland, even if most of them may still be willing to support relief for those “lucky enough” to be the victims of raging rivers or tempestuous tornadoes. But generally the modern Repubilcan Party, when confronted with the vulnerable in our society, has adopted Gerald Ford's unforgettable message--yes, I know he never said it in these exact words--to New York: "Drop dead." In Texas, for example, any semblance of a “welfare” state is being destroyed by Republicans whose expectations of “rugged independence” appear to extend to both children and the elderly who might need medical care. Education is being wrecked on the altar of “no new taxes.” Governor Perry even flirted with secessionist arguments during his campaign for re-election and otherwise has expressed only contempt for the national government.

However, guess what. Our paragon of rugged independence was more than happy to beg for federal aid to fight fires in West Texas. President Obama did not find the Texas fires worthy of federal disaster relief, noting that the national government has already ponied up considerable funds to help Texans fight various natural disasters. On can only wonder why Perry and other Republican governors--as they lead a vicious assault on the welfare state--feel any sense of "entitlement" to help from the national government. After all, many of these natural disasters, as Ron Paul suggests, are eminently predictable? (Who would imagine tornadoes in Alabama, flooding along the Mississippi, or hurricanes in Florida or Louisiana?) Why haven’t these states been buying insurance against such eventualities instead of depending on the national government to step in and help? Shouldn’t they find Grover Cleveland, and his stunning lack of anything that could be described as a “bleeding heart,” an inspiration?

Unfortunately, President Obama, ever the gentleman, is much too tactful to explain to Republican recipients of “disaster relief” that they are no more “deserving” than are other victims of privation in our country. I am personally glad that federal funds are being sent to Mississippi, Louisiana, and Alabama to help them out in their moment of trauma. But, then, I’m a bleeding-heart liberal who doesn’t find Grover Cleveland a model President and am glad to pay taxes at least some of which go to aid those who are less fortunate than I am. I only wish that those seeking and benefitting from such handouts will think twice the next time that their governors and representatives in Washington rail against the welfare state and call on citizens simply to tighten their belts and take responsibility for their own futures, whatever the consequences. But I won't hold my breath.
Posted 3:58 PM by Sandy Levinson [link] (9) comments

Zombie Banks and the Need for a Public Option in Finance

Frank Pasquale

I recently heard Thomas Ferguson discuss his work in political economy with Chris Hayes. He mentioned this paper, which does a pretty remarkable job summarizing what's happened in finance since the bailout:

[Banks have successfully lobbied] for free or low cost money: the euphemism is the need to “get a new balance sheet into the game.” . . . Along with bank creditors, which in the U.S. include giant bond funds like Pimco and BlackRock, bankers also form a phalanx against making bank creditors share any costs of bailouts by converting debt into equity – which, of course, is exactly what states concerned about their taxpayers should do.

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Posted 11:31 PM by Frank Pasquale [link]

Democracy Trumps Demagoguery-- For Now

JB

I've said little about the Donald Trump fiasco up to this point. Now that he has announced, as many people had assumed, that he would not run for president, it's worth noting the glass-half-full and glass-half-empty lessons of this particular farce:
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Posted 3:59 PM by JB [link]

The War Against Disclosure

Frank Pasquale

Three remarkable recent lobbying campaigns go beyond the normal bounds of partisan sniping over "markets vs. regulation." They threaten our capacity to understand how society is ordered: whom it serves, for what purposes, and at what costs. Consider these attacks on basic disclosure norms in politics and business:

1) Campaign Finance Disclosures: Regardless of ideology, almost everyone used to agree that campaign funding sources and amounts should be disclosed. 92% of Americans had that position in 2010. Justice Scalia has eloquently insisted that such disclosure laws violate no one's rights. But thought leaders in the Republican party are now vigorously resisting disclosure, as Norm Ornstein observes:
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Posted 6:44 PM by Frank Pasquale [link]

Affirmative Action and Original Understanding

Gerard N. Magliocca

One of the interesting aspects of my research on John Bingham (for the biography that I am writing about him) was his relationship with Titus Basfield, an ex-slave who was his college classmate and lifelong friend. There is a suggestion in one of Bingham's letters that he wrote the Equal Protection Clause with Basfield in mind, though I have not yet verified this claim. What is clear, though, is that Basfield is probably the most significant example of undergraduate affirmative action in our history.

Basfield was a slave whose freedom was purchased by abolitionists in the early 1830s. (There is an urban myth that his mother was owned by Andrew Jackson, and I'm trying to run that down.) He moved to Ohio and came to the attention of the Reverend John Walker, a supporter of African-American equality who was the founder and leader of Franklin College. Walker personally recruited Basfield to the college and gave him a room rent-free so that he could pursue his studies. In exchange, Basfield did odd jobs at the school and served as the sexton in Walker's church. When Basfield graduated in 1837, he was the first African-American to receive a bachelor's degree in Ohio, and went on to become a successful minister.

Why is this story important? Partly because one of Basfield's ten classmates was John Bingham. I was at a museum dedicated to Franklin College--the school no longer exists--and saw a picture of Franklin in the years when Bingham and Basfield attended. It was basically just a private house. In other words, John Bingham spent every day of his formative years with a free black man who was treated as his social equal. This was an extraordinary experience at that time, and (as their friendship and correspondence until the 1870s suggests), it left a deep impression on both men. My other observation is that Basfield was a textbook example of racial outreach (and financial aid) by a university to make the student body more diverse. (To use modern parlance, you could say that one African-American in a class of 11 was a "critical mass."). More important, that diversity appears to have had a profound effect on the thinking of one of our most consequential constitutional figures.

Does this mean that John Bingham saw affirmative action as consistent with the Fourteenth Amendment or diversity in higher education as a compelling state interest? Not necessarily. Franklin College was, after all, a private institution, and one might think that a state institution should be treated differently. Nevertheless, I think this history offers some support for the Court's holding in Grutter.
Posted 9:59 AM by Gerard N. Magliocca [link]

An argument for intellectual piracy?

JB

Charlie Savage informs me that a website, Lawyer News and Information, lifted the entire text of my Newt Gingrich post and republished it without my permission. As a result, a copy of the post is preserved here, even though Blogger ate the original yesterday due to a malfunction.

For the time being at least, I do not intend to sue. ;-) Unauthorized appropriation of intellectual property has pulled Blogger's chestnuts out of the fire.

But wait, am I violating the copyright laws by deliberately linking to a post that is a willful infringement of copyright and sending my readers there? Probably not-- after all, it is my copyright. But what the hell, I'll just copy the post from the infringing site myself and violate (my own) copyright a second time. And if Lawyer News and Information then wants to send me a demand letter, I think it would be very interesting litigation.

* * * * *

Newt Gingrich and the activity/inactivity distinction

JB

Newt Gingrich, who is joining the presidential race, has supported individual mandates for health insurance for some time. He has argued, for example, that people over a certain income level should either be forced to buy insurance or post a bond. Interestingly, he also supports the constitutional challenge to the individual mandate for health care.

What gives? Well, let Ed Haislmaier of the Heritage Foundation try to explain it for you:

Ed Haislmaier, a health care policy expert at the Heritage Foundation (the conservative think tank that first championed the mandate), said he did not have enough information to comment on Gingrich’s past approach to health care reform. Haislmaier did, however, note that there is a distinction between taxing individuals for not buying insurance and requiring them to post a bond, as Gingrich proposed. While the former is a penalty for not getting coverage, “what [the latter] is saying is you have to pay your bills if you get care,” he said.

A bond, as Haislmaier noted, is exactly what Romney initially proposed while he was governor of Massachusetts. Romney ended up signing off on a more traditional mandate only after it was passed by the state legislature.

OK, but requiring people to post a bond (rather than pay a tax) if they don’t purchase health insurance is regulating inactivity, too, isn’t it? I mean, as I understand the constitutional challenge to the health care bill, the person who is forced to post a bond because they won’t buy insurance isn’t doing anything, right? And, to quote my friend Randy Barnett, isn’t such a proposal an “unprecedented” expansion of the commerce power?
Posted 3:15 PM by JB [link]

Can Congress "regulate" inactivity? Sure.

JB

In the 4th circuit oral argument on the constitutionality of the individual mandate held on Wednesday, Judge Motz asked Solicitor General Neal Katyal whether Congress's power to "regulate" commerce among the several states presupposes that Congress is regulating an activity. (See Randy Barnett's report of the exchange here.)

Katyal said he needed a bit of time to think about it, but ultimately said two things: first, the individual mandate regulates activity in the entire health care market; and second, Congress can reach inactivity under the Necessary and Proper Clause. These are both appropriate answers.

However, let me add a third answer.
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Posted 2:59 PM by JB [link]

The belch of the networked public sphere, or, Blogger is up, but posts are missing

JB

If you are looking for yesterday's post on Newt Gingrich and health care, I am sad to report that Blogger ate it, along with many other posts by many other people due to a software malfunction. Blogger has promised that these posts will be restored eventually, although they did not give a specific date (I didn't save a draft version outside of Blogger itself.).

This episode shows how deeply dependent the networked public sphere is on the flawless maintenance of platforms like Blogger, Gmail, and Google, not coincidentally all owned by the same company. Blogger was down for little over a day; imagine what would happen if Facebook or Twitter were inoperative for an entire week.
Posted 2:11 PM by JB [link]

Newt Gingrich and the activity/inactivity distinction

JB

Newt Gingrich, who is joining the presidential race, has supported individual mandates for health insurance for some time. He has argued, for example, that people over a certain income level should either be forced to buy insurance or post a bond. Interestingly, he also supports the constitutional challenge to the individual mandate for health care.

What gives? Well, let Ed Haislmaier of the Heritage Foundation try to explain it for you:

Ed Haislmaier, a health care policy expert at the Heritage Foundation (the conservative think tank that first championed the mandate), said he did not have enough information to comment on Gingrich's past approach to health care reform. Haislmaier did, however, note that there is a distinction between taxing individuals for not buying insurance and requiring them to post a bond, as Gingrich proposed. While the former is a penalty for not getting coverage, "what [the latter] is saying is you have to pay your bills if you get care," he said.

A bond, as Haislmaier noted, is exactly what Romney initially proposed while he was governor of Massachusetts. Romney ended up signing off on a more traditional mandate only after it was passed by the state legislature.

OK, but requiring people to post a bond (rather than pay a tax) if they don't purchase health insurance is regulating inactivity, too, isn't it? I mean, as I understand the constitutional challenge to the health care bill, the person who is forced to post a bond because they won't buy insurance isn't doing anything, right? And, to quote my friend Randy Barnett, isn't such a proposal an "unprecedented" expansion of the commerce power?
Posted 2:34 PM by JB [link]

Executive Detention after Bin Laden

Guest Blogger

Liza Goitein

Gerard, I think you've correctly described what the Supreme Court would hold. The problem is, when the Supreme Court decided Hamdi, it ignored a key distinction between how the law of war (or "IHL," for "international humanitarian law") treats international armed conflict ("IAC") and how it treats non-international armed conflict ("NIAC"). IHL permits the detention of prisoners of war for the duration of the hostilities in IAC. As Gabor Rona has pointed out, however, IHL neither authorizes nor forbids the detention of fighters in NIAC -- it leaves that issue entirely to domestic law. At the time Hamdi was apprehended, the conflict was an IAC, so his detention was authorized by IHL until that conflict ended. But by the time the Supreme Court issued its ruling three years later, the IAC phase of the conflict had indeed ended (upon the fall of the Taliban), and the conflict was now a NIAC -- meaning that domestic law and not IHL governed the appropriateness of Hamdi's detention. The Supreme Court held that the AUMF (which is, of course, domestic law -- although Rona would argue that the relevant domestic law is Afghanistan's) allowed Hamdi's continuing detention, but it did so by concluding that the AUMF incorporated the principles of IHL -- and those principles don't actually have anything to say about detention in NIAC.

In short, I think the Supreme Court was wrong in holding that the law of war authorized Hamdi's continuing detention in 2004. But I'm pretty sure the Court gets to say what the law is. In light of that (occasionally regrettable) fact, I think Gerard's analysis hits the mark: the AUMF still permits detention post-bin Laden, but may cease to do so if/when we are no longer actively fighting in Afghanistan.

Liza Goitein is Co-Director, Liberty and National Security Program, The Brennan Center for Justice. You can reach her by e-mail at goiteine at exchange.law.nyu.edu
Posted 6:49 PM by Guest Blogger [link]

David Brooks gets nostalgic for the 18th century

Sandy Levinson

David Brooks continues to be perhaps the most vexing of the NYTimes's columnists. He is clearly smart and often quite interesting. But, with regularity, he writes columns whose flaws seem obvious. So consider his column in today's Times, in which he basically laments the collapse of the Federalist Party in the 1800 election. That is, he beleives that the United States is (or ought to be) a "republic," very definitely not a "democracy." (No doubt he would regard it as a strength of the United States Constitution that it is "undemocratic.") As Gordon Wood points out in his magisterial Oxford history of the United States between 1789-1815, the Federalists (like, for that matter, most of those who framed the Constitution) decidedly mistrusted the masses and wished for leadership by elites who could be counted on to identify and then to act on "the public interest" instead of crasser interests (such as the preferences of their unenlightened constituents, who were expected to defer to their betters rather than prefer officeholders who took constituents' views all that seriously).

For better or worse, this vision of American politics, which among other things is based on the premise that there will be no "factious" political parties, was, as some say about decisions like Plessy, "wrong the day it was decided," and that was made clear for all to see no later than 1800. But the call for a return to a "republican" political order is a constant of American politics. It is the heart of the Progressive vision of high technocracy (and non-partisan elections) and of Michael Sandel's emphasis on the politics of the "public good" instead of a necessarily selfish "liberalism." One could also see such elements in the revival of "civic republicanism" that was an important part of the legal academy in the '80's (led by, among others, Cass Sunstein, who is now a leading member of the Obama Administration). Though Brooks is a Republican, Democrats, like Sunstein and Obama, are certainly attracted to it. (Perhaps this helps to explain why the "community organizer President" basically suspended any community organizing, which is too "democratic." Brooks very much likes that Obama.)

I don't mean to demean that vision. I suspect that all of us share the nostalgia at one time or another. Who actually likes the current decadent form of party "competition," well captured in the current Onion? But, as my then-colleague at Ohio State, David Kettler, pointed out in a brilliant essay some 40 years ago, republican nostalgists avoid coming to terms with the fact that it rested on a particular vision of political sociology, including, among other things, the deference by lower orders to their elite betters. (Not surprisingly, Brooks is nostalgic for the "establishment" that continued to possess a great deal of influence into the 1960s and itself collasped in the wake of Vietnam and the civil rights movement.) Brooks is ultimately engaging in fantasy, hoping that by some truly magical process a self-interested consumerist culture that has been systematically created over the past 200 years will simply disappear. However explicable his hope, it is deeply unserious. He needs, among other things, to reread Daniel Bell's Cultural Contradictions of Capitalism (not to mention The Communist Manifesto, which notes that under the pressure of capitalism "all that is solid," such as the kind of society for which Brooks is so nostalgiv, "melts into air").
Posted 6:26 PM by Sandy Levinson [link] (14) comments

The AUMF and Executive Detention

Gerard N. Magliocca

And now for something completely different. Liza Goitein, who is a guest blogger here, is my friend and law school classmate, and we thought that it would be fun to try some posts every once in a while in which we would go back-and-forth on a topic. Depending on your point of view, this could be called "Point-Counterpoint," "Crossfire," or "Waldorf & Statler," (the two muppets who make fun of everyone from the balcony).

To start this off, I want to repeat an observation that I made over on Concurring Opinions about the death of Bin Laden. In my view, this does not terminate the authorization given to the President by Congress after 9/11 to detain indefinitely alleged enemy combatants. The Supreme Court was quite clear in Hamdi that the AUMF would continue to authorize such detentions so long as combat operations were ongoing in Afghanistan. If the President carries out his promise to withdraw from the Afghan war this summer, then I think that the detainees would have a viable claim that they could no longer be held without a new authorization. But not until then, and even then it would depend on the nature of the withdrawal.

Liza -- you're up!
Posted 3:55 PM by Gerard N. Magliocca [link]

Bin Laden and the Torture Debate

Jonathan Hafetz

According to the New York Times, Osama bin Laden's death has "reignited" the torture debate. Did "enhanced interrogation techniques" lead to critical information in locating the al Qaeda leader? Does torture produce useful intelligence? Should it matter? Several excellent posts here at Balkinization address these and other questions.
Posted 9:21 PM by Jonathan Hafetz [link]

Still Ticking, Ten Years Later

Alice Ristroph

Remember when proponents of torture used to invoke the ticking time bomb? To show that torture was sometimes permissible or even morally required, people would imagine a ticking bomb, a terrorist in custody who knew the location of the bomb, and the imminent death of gazillions of innocent civilians. Wouldn’t you use the waterboard? Tick, tick.

The fantasy of the ticking bomb was designed to make people more comfortable with torture, in part by suggesting certain conditions on its use: most importantly, an imminent threat of catastrophic harm that could be averted by torture and torture alone. The renewed endorsements of torture after the death of Osama bin Laden illustrate that it’s not about the ticking after all. On the revised account, the torture of suspected terrorists was justified if it yielded one piece of information that contributed to the eventual success, years after the torture took place, of a long-term manhunt (a hunt based, by all reports, on a vast array of intelligence from many different sources). Torture need not “work” quickly, it need not be the only means of gaining the information, and the information need not be essential to avert imminent catastrophe. Indeed, torture need not be concerned with future threats at all – it seems widely acknowledged that killing bin Laden was a matter of “bringing him to justice” for past deeds, or, as one honest fellow put it, exacting revenge.

I haven’t blogged in a long time, in part because I’ve been occupied by a book manuscript about the ways we distinguish legitimate violence from illegitimate violence. Across different legal and political contexts, there are familiar principles of distinction: imminence is one (legitimate violence responds to an imminent threat); necessity is another (legitimate violence is necessary to avert some significant harm). In several arenas, including policing, prisons, and military action, I’ve found that these principles can never do all the work of distinction that they are asked to do. It’s not just that imminence and necessity are in the eye of the beholder, or rather, the eye of the agent of violence. Once we get used to doing a certain kind of violence, we tend to stop caring about imminence or necessity – or proportionality, or judicial review, or other familiar principles of distinction. And, with due respect to others here at Balkinization, I suspect effectiveness is just one more principle of distinction that turns out not to matter very much. Really, there seems to be only one durable principle of distinction, one solidly reliable way to differentiate legitimate violence from illegitimate: the difference between us and them. Torture is legitimate when it’s something we do to them. The ticking bomb has fallen silent, but this idea endures.

Posted 12:28 PM by Alice Ristroph [link]