Thursday, June 25, 2015

Is There Anything Wrong With (Legal) Guerrilla Wars?

Mark Tushnet

Let's put together several recent developments in the law, broadly understood. (1) The campaign to abolish the death penalty. It is conducted in legislatures (see Nebraska) and the courts (see the pending case on the use of lethal drugs in executions), and in the forum of public opinion (generating government pressure in Europe on drug manufacturers to refrain from exporting lethal drugs to the United States without assurances about their use). In the oral arguments in the lethal injection case, some of the Justices referred to the case as a battle in an abolitionist guerrilla war.

(2) The campaign against Obamacare. Same venues (repeal votes in the House, several rounds of litigation, political mobilization). By my count there are two (and a half) legal challenges to Obamacare yet to be resolved. None seem to me entirely frivolous. There's a challenge based on the origination clause, where the quite thin judicial precedents that would lead to rejecting the challenge are countered by a substantially thicker body of congressional and executive "precedents" that would lead to accepting it. There's a challenge brought by the House of Representatives, nominally to the deferral of the employer mandate but actually (as I understand it, but I might be wrong) to the use of funds not specifically authorized for the purpose to manage things during the transition year. And there are a bunch of follow ups to Hobby Lobby. Should defenders of Obamacare think about these efforts as guerrilla warfare? Call them by that name?

(3) Lawfare, defined roughly as the use of legal arguments to enforce or create barriers to policies against terrorism that, absent those barriers, political actors would adopt. Again, conducted in all the venues.

Is it possible to describe all these as examples within a larger category? Seems to me that they do resemble one another. Clearly, the term "guerrilla war" has (to some) negative normative connotations. Is there a better term?

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