Saturday, September 26, 2009

Switching Blogging Platforms and Hosting Providers:

The site might be down much of the weekend. By Monday, we should be on WordPress, hosted by Hosting Matters, with design by Sekimori. (Many thanks to Sekimori, by the way, for all her help with the conversion so far, and for her help to come!)


"Vinson & Elkins Snags Elwood for Its Appellate Practice": The BLT has a news story about the new job of our co-blogger John Elwood. It begins:
  Houston-based Vinson & Elkins is the latest big law firm to beef up its D.C. appellate practice by hiring a former Supreme Court law clerk and respected alum of the solicitor general's office. An announcement is due soon that it has hired John Elwood, an eight-year veteran of the Bush Administration Justice Department, to start on Monday as a partner in the D.C. office.
  Elwood, 42, clerked for Justice Anthony Kennedy in the 1996-1997 term. After working at Miller, Cassidy, Larroca & Lewin and then Baker Botts, he joined the Justice Department's criminal division in 2001, moving to the SG's office in 2002. After arguing five cases before the high court, he moved to the Office of Legal Counsel, and by the time he left on Inauguration Day in 2009, he was the senior deputy in that office.

Friday, September 25, 2009

Government Files Notice of Appeal in Lori Drew Case: Today Assistant U.S. Attorney Mark Krause, the prosecutor in the Lori Drew case, filed a notice of appeal of the District Court's decision granting the motion to dismiss. It's important to note that this does not mean the case will actually be appealed. The Solicitor General must approve the decision to appeal for it to go forward, and this may simply be a protective notice in light of the fact that the government has 30 days to file a notice of appeal under the federal rules.

  It is also worth noting that just ten days ago, the Ninth Circuit rejected the line of cases that the government relied on in the Lori Drew prosecution in a civil case, LVRC Holdings v. Brekka. This is particularly interesting because in Drew, Judge Wu accepted the government's broad reading of the statute as a matter of statutory interpretation; he only dismissed the case because of the constitutional vagueness problem. Under Brekka, however, the Ninth Circuit seems to have rejected the Government's very broad reading of the statute as a matter of statutory interpretation.

  In any event, if the Government does in fact appeal the Drew case, I plan to work on the appeal.

"CRS Report" on Honduras "Coup":

Thanks to a helpful reader, I've now located a copy of the CRS report on recent events in Honduras I mentioned here. The report, which was actually prepared by a different part of the Library of Congress and not CRS, the Law Library of Congress, the division of the Library of Congress responsible for reports on foreign law, is available here.

Related Posts (on one page):

  1. "CRS Report" on Honduras "Coup":
  2. CRS on the Honduras "Coup":

Revising Web-based Newspaper Articles Without Informing Readers:

On Wednesday, I wrote a brief post on ACORN's lawsuit against those who made and distributed the now-infamous undercover videotapes of ACORN staff. In the post, I linked to a Washington Post story on the suit. Today, however, I learned that the story at that link is no longer the same as when I made my initial Wednesday post. As noted in an early comment on my post, the original story included the following:

In an exclusive interview with the Post, founder Wade Rathke said conservative claims that ACORN, the Association of Community Organizations for Reform Now, is a "criminal enterprise" that misuses federal and donor funds for political ends -- a claim contained in a report by House Republicans -- are a "complete fabrication." He said exaggeration and conjecture about the group are being passed off daily on cable television and web-site blogs as documented fact.

"It's balderdash on top of poppycock," said Rathke, who was forced out last year amid an embezzlement scandal involving his brother.

Portions from this passage no longer appear in the story as it now appears on the Post website. Now the relevant portion of the story simply reads:
Meanwhile, the departed founder of ACORN said many of the accusations about the group are distortions meant to undermine President Obama and other Democrats.

In an interview, Rathke said conservative claims that ACORN is a "criminal enterprise" that misuses federal and donor funds for political ends -- an allegation contained in a report by House Republicans -- are a "complete fabrication." He said exaggeration and conjecture about the group are being passed off daily on cable television and blogs as documented fact.

Missing are the reference to the "embezzlement scandal" or the colorful quote. Gone as well is the mention of an "exclusive" interview. Yet there is no acknowledgment anywhere in the story that it was edited.

So, the Washington Post published a story on its website, revised the story to omit details that appeared in the relevant piece, and yet did not disclose these facts to the Post's online readers. Isn't this a problem? There may well have been valid reasons for revising the story. Perhaps an editor thought the story got relevant facts wrong or concluded reference to the embezzlement scandal was unfair. Whatever the reason for the change, the Post should have disclosed that changes were made and that it had decided to excise information included in the original story.

This is not the first time I've noticed the web site of a prominent news organization failing to disclose that it had edited the web-based version of a story after initial publication. The NYT, for example, did it when reporting on the Administration's decision to abandon a planned missile defense of Poland and the Czech Republic, as I noted in an update to this post. Is this now common practice? If so, it seems to be a major failing. Responsible bloggers routinely disclose anything more than the most minor stylistic and typographical revisions to published posts. I would think newspaper websites could do the same. Indeed, shouldn't newspapers at least match the disclosure norms observed by bloggers? After all, they're the real journalists.


Some Thoughts on Multiple Blog Posts:

Some commenters said they were surprised that I've posted several times about the Obama praise song issue; they suggested that the matter is minor enough not to merit three posts (or, I suppose, now four, depending on how you count this one).

How many article a newspaper publishes about a particular incident may well reflect the importance of the incident. But bloggers operate differently. Among other things, (1) bloggers are more likely to post about amusing things they found in the course of researching the story, (2) bloggers are more likely to post follow-up factual updates, even relatively minor ones, (3) bloggers are more likely to criticize other responses to the story (whether from the media or from others), (4) bloggers are more likely to use the story as a launching off point for a discussion about other matters, such as blogging practices and the difference between blogs and the media, and (5) bloggers are more likely to react to reader comments, either to respond to them or to post something that the comment highlights as interesting.

This is what happened here. I posted the original story this morning, chiefly because I saw some academic friends of mine comment on it on a discussion list that I'm on. That was post 1. I then decided to do a bit more searching, to see how other media outlets were covering this; a search for "Bernice Young" pointed me to the Media Matters post, which struck me as having a laughably over-the-top headline. A newspaper reporter likely wouldn't have written another story just about that, but I thought it was amusing and worth noting. I then saw that the substantive defense in the Media Matter post item was quite weak as well, so I included that in the post. That was post 2. The query also showed me that there was a follow-up factual story in the news about the principal's response; a commenter to the original post also quoted from it, so that led me to conclude that this was a useful factual update. That was post 3. And the comments to post 3 led me to step back and remark on the difference between multiple blog posts and multiple articles in the newspaper, hence this post 4.

Now this is surely not one of the great stories of our time -- not even close. But my point is that the presence of multiple blog posts, unlike the presence of multiple articles in the same newspaper, need not be closely related to the importance of the story.


"The Principal of a New Jersey Elementary School "


where young students were videotaped singing the praises of President Obama is making no apologies for the videotape and says she would allow the performance again if she could, according to [three] parents who spoke with her Thursday night....

Parent Jim Angelillo said [Principal Denise] King told him the lesson was merely part of Black History month, and not an attempt to indoctrinate students, as critics have charged....

King has long been a fan of Obama, hanging pictures of the president in her school's hallways and touting her trip to his inauguration in the school yearbook.

Included in the full-page yearbook spread were Obama campaign slogans ("Yes we can! Yes we did!") and photos King took in Washington on Jan. 20, when she attended the inauguration.

There also were photos taken at the school depicting students doing Obama-themed activities about their "hopes for the future," featuring posters of Obama....

Attempts to reach King on Friday were unsuccessful....

I should stress that one should always be cautious about second-hand accounts of oral conversations; it may be that the parents misunderstood the principal, or that important context was omitted. That's why I hope that the principal, who is after all a public servant, does indeed publicly explain her position herself.


"New Low: Beck and Right-Wing Media Minions Fearmongering About Kids to Attack Progressives":

Is it just me, or is that headline just a bit rhetorically over the top? (No, the last link doesn't make a moral analogy, just an analogy in the rhetoric.) "New low"; "right-wing media minions" (why not "nattering nabobs of negativism"?); "fearmongering" -- just a bit much for a credible debunking, it seems to me.

This is especially so when part of the fearmongering that is supposedly debunked is actually not bunk at all; here's the response the site (Media Matters) gives as to the Obama praise song incident:

Conservative media fearmonger about unauthorized YouTube video of school kids "praising" Obama

The Drudge Report: "SHOCK VIDEO: School kids taught to praise Obama ..." On September 23, Internet gossip Matt Drudge linked to a YouTube video purportedly showing "[s]chool kids taught to praise Obama." The video, showing young schoolchildren in New Jersey singing a song about Obama, provides no evidence that the children or their parents consented to having the video posted on YouTube.

America's Newsroom: "Many parents ... just don't want this sort of political cheerleading, if you will, in the classroom." On Fox News' America's Newsroom, hosts Bill Hemmer and Megyn Kelly aired the video and asserted that "many parents" don't want kids "singing praises" to Obama. Before showing the video, Hemmer said: "It is one thing to have kids say the Pledge of Allegiance, but we're not sure what's going on with the videotape now online when students are singing praises to the president and why some parents are saying, not with my kid." Later, Kelly teased the video by saying, it's "getting attention on The Drudge Report website this morning. It shows young children singing the praises, quite literally, of the president." She continued:

KELLY: Well, information posted with the clip says that it is from the Bernice Young School in Burlington Township, New Jersey, but the school won't exactly confirm that for us. In fact, they won't confirm anything for us. We have made multiple attempts to ask them about these students, about this tape and how this came about. We are hoping that they can get back to us shortly, so that we can clear this up.

Already we're getting a lot of emails from our viewers. It went on from there -- you saw a clip of the children singing. Then came a bit of a chant by the children where they praised President Obama for all his great accomplishments, saying, quote, "You're number one. Hooray, Mr. President, we're really proud of you." And on and on it goes.

You know, many would have no problem with this. Many parents would, and just don't want this sort of political cheerleading, if you will, in the classroom. We just don't know the details behind the tape, but it certainly caught our attention and we're trying to find out from, again, from this school, which we have multiple calls into. The B. Bernice Young Elementary School, Bernice Young Elementary School in Burlington, New Jersey. And as soon as we have it, you'll have it. [America's Newsroom, 9/24/09]

The Fox Nation: "School Children Sing Songs of Obama's Glory." On September 25, the allegedly fair and balanced posted the video with the headline "School Children Sing Songs of Obama's Glory." fearmongerkids2

Beck: Song sounds like "a hymnal for a dictator." On the September 24 edition of his radio show, Beck said: "I want to show you, and tonight I'm going to play the tape for you, of indoctrination that is going on. We've been going through all of this indoctrination for the last few days. Tomorrow, I do a full hour live with moms, and their children, and we're going to talk a little bit about things they're concerned with -- and indoctrination I know will come up. Play this, this is -- do we know where this is from? Elementary School in Burlington, New Jersey. The B. Bernice Young Elementary School. The woman who did this is, I believe, an activist, she's the principal, or the teacher. I don't have her name here. But listen to -- this is -- these are elementary school children, and they are singing a song for Barack Obama." After Beck played audio of the video and read the words out loud, he said it sounded like "a hymnal for a dictator. ... Does anybody see what's going on? Does anybody see what's going on?" Later, Beck said: "This is indoctrination. This should horrify the American people." [Premiere Radio Networks' The Glenn Beck Show, 9/25/09]

Beck also promoted the video September 24 on his Twitter feed: RT @keepthemhonest: How young does Obama target (more indoctrination video) @glennbeck #tcot

Burlington Township School District superintendent: Song is from Black History Month activity, and the "recording and distribution of the classroom activity was unauthorized." The school board's superintendent wrote in a letter to parents that "[t]he video is of a class of students singing a song about President Obama. The activity took place during Black History Month in 2009, which is recognized each February to honor the contributions of African Americans to our country. Our curriculum studies, honors and recognizes those who serve our country. The recording and distribution of the class activity were unauthorized."

Really, that's it for the site's explanation for why this story is supposedly "fearmongering": The event took place during Black History Month; it "honors and recognizes those who serve our country"; and the video was "unauthorized" (note that the "unauthorized" meme makes its way even into the section header). Move along, folks, nothing to see here, nothing to fear, just regular honoring and recognition of public servants, plus the video of the event was unauthorized, which is somehow very important.


The Strange Practice of Indicting in the Conjunctive: The BLT has a story about a federal criminal case in which the Government forgot to indict in the conjunctive — that is, it forgot to turn "or" into "and." According to the story, DOJ is going to re-indict the case to avoid the error. It may be easier for DOJ to do that, but it's worth pointing out the silliness of the rule that indictments should be in the conjunctive. It's a holdover from early common law pleading, and it makes no sense for modern statutory crimes.

  For those unfamiliar with the rule, federal court precedent says that if a federal criminal statute makes it a crime to do "A, B, or C," the indictment should allege that the defendant did "A, B, and C." That is, the prosecutor should switch the "or" to "and", replacing the disjunctive with the conjunctive. Why do that? The cases say that the reason is to avoid uncertainty: If the indictment uses "or," then the defendant has no notice of what the government is charging. If the indictment uses "and," then there is no uncertainty. But here's the trick: The government only needs to prove one of the theories at trial, and the conviction will be upheld on appeal so long as only one of the theories has been proved.

  It doesn't take a rocket scientist to see this rule is foolish. Mechanically turning "or" to "and" doesn't actually provide any additional notice. And judges have been noting that this rule is nonsensical for a long, long time. Way back in 1757, Lord Mansfield attacked the rule as useless:
Upon indictments, it has been so determined, that an alternative charge is not good, as ‘forged or caused to be forged’; though only one need be proved, if laid conjunctively, as ‘forged and caused to be forged.’ But I do not see the reason of it; the substance is exactly the same; the defendant must come prepared against both. And it makes no difference to him in any respect.
Rex v. Middlehurst, 1 Burr. 399, 98 English Reports 369 (1757). As another court wrote in 1945:
The difference between disjunctive and conjunctive pleading is mostly the difference between tweedledum and tweedledee, and modern jurisprudence, which appraises substance and not form as its essence, accords to such useless learning only a nodding acquaintance. What earthly difference is there between ‘or’ and ‘and’ in a count when the end result is that defendant in both instances must be prepared to meet both or all charges?
Commonwealth v. Schuler, 43 A.2d 646 (Pa. Super. 1945).

  The obvious question is, how did this rule come about? I spent some time trying to hunt this down in the summer of 2008, together with the help of a research assistant, Sai Jahann, and we were never able to come up with a firm answer. The rule had already been established by the time of the early authorities in English, and neither Sai nor I knew the Latin or Law French needed to read the earlier decisions that might have first announced or first justified the rule.

  As best I could tell from the early English cases, the origins of the rule were in early common law pleading rules in an era of common law crimes. Under those rules, each indictment had to allege a single crime. So an indictment couldn't allege that a defendant had committed murder or larceny or burglary; it had to give actual notice of the crime alleged. But in an era of common law crimes, the precise boundaries of how much notice was required was never entirely clear: If it was a crime to stab, punch, or kick someone, it wasn't entirely clear if that was one offense that could be committed three ways or three different offenses.

  Exactly how this led to the modern rule of "indict in the conjunctive, prove in the disjunctive" isn't precisely clear. But I found some early English cases in which a defendant had actually committed the offense in all of possible ways, and prosecutors just charged all of the means conjunctively in the indictment. The indictment thus changed the "or" to "and." This got around any possible pleading objections based on lack of notice, as the notice was very clear. But then you had some cases where the defendant would challenge the evidence as to all of the means; perhaps, if it was a crime to "stab, punch, or kick someone," the government had only proved punching and kicking but not stabbing. Courts responded, sensibly enough, that if the crime could be committed any of the different ways, the government had proved the offense if it had proved any of the different ways.

  My sense of what happened is that the warnings about notice turned into a general rule that served no real purpose. To be careful, prosecutors started just routinely changing "or" to "and," satisfying any possible objection as to uncertainty, while knowing that they could always just prove one of the means rather than all of them. This then became the accepted and recommended practice, even though the switch from "or" to "and" was purely a question of form. Strange but true — or at least as true as I was able to discern.

"School Children Singing the Praises of President Obama" (Apparently as a Public School Class Project):

According to Fox News,

The commissioner of New Jersey's Department of Education ordered a review on Friday following the posting of a YouTube video depicting school children singing the praises of President Obama.

Video of the students at the Burlington, N.J., school shows them singing songs seemingly overflowing with campaign slogans and praise for "Barack Hussein Obama," repeatedly chanting the president's name and celebrating his accomplishments, including his "great plans" to "make this country's economy No. 1 again."

One song that the children were taught quotes directly from the spiritual "Jesus Loves the Little Children," though Jesus' name is replaced with Obama's: "He said red, yellow, black or white/All are equal in his sight. Barack Hussein Obama."

There were apparently death threats sent to the principal; of course, such threats are crimes, and should be punished. But I would hope that those responsible for the school project are properly disciplined as well; public school classrooms shouldn't be used to sing the praises of any sitting (or recent) political figure, whether Bush or Obama or anyone else.

That's not a constitutional matter — there's no Establishment Clause for political speech, and of course schools do routinely glorify past political figures, whether Washington, Jefferson, Lincoln, or what have you. They also rightly express a calm respect for current elected officials; when an official comes to visit, for instance, it's proper for teachers to give the normal praise offered such visitors, and for students to join in.

But that some degree of ideological indoctrination and glorification is inevitable in government-run schools, and is in fact one of the purposes of such schools (which have long been justified as means of assimilating children into American democratic culture), doesn't mean that it's proper to lead children in songs praising the current President or particular aspects of his political agenda ("Hooray, Mr. President we honor your great plans / To make this country's economy number one again!"). I would have thought that this was pretty clear, and it probably is to most teachers in most schools — but not, unfortunately, in this instance.

UPDATE: Incidentally, the 2006 "Congress, Bush and FEMA / People across our land / Together have come to rebuild us and we join them hand-in-hand!" schoolchildren's song to First Lady Laura Bush is pretty bad, too -- not quite the same, even if it was organized as a public school activity (which I suspect would indeed be so), since it didn't involve such extensive praise of a particular current political figure, but also not the sort of thing that schools should be doing.


"Times Less Than":

An e-mail from a reader reminded me again of this debate — some people argue that "A times less than B" is "mathematically incorrect," "simply wrong," and so on. The theory is that "times" refers to multiplication, so "5 times less than B" to mean "B/5" is mistaken, though "5 times more than" to mean "5xB" (or possibly "6xB") would be fine.

This prompted me to do some more searching, and discover not only a usage of this phrase by Jonathan Swift (via Merriam-Webster's Dictionary of English Usage), but also by Isaac Newton ("If the Diameters of the Circles ... be made three times less than before, the Mixture will be also three times less; if ten times less, the Mixture will be ten times less"), Sir William Herschel ("remember that the sun on Saturn appears to be a hundred time less than on the earth"), Erasmus Darwin, Robert Boyle, John Locke, and more. Nor is this some archaic usage; it remains routine today.

What's going on here? The correspondent whose message prompted me to repost about this suggested that "A times less than B" might be a calque — "a loan translation, esp. one resulting from bilingual interference in which the internal structure of a borrowed word or phrase is maintained but its morphemes are replaced by those of the native language, as German halbinsel for peninsula" — from my native Russian, where "X raz men'she [or men'eye] chem" is routine. But that hardly explains Newton and Herschel, I think.

Rather, I think what's going on in the critics' minds is itself a sort of calque, though a calque from mathematics to human language. It's true that if you view "times" as "x" and "less" as "-," then "A times less than B" is either literally meaningless, or corresponds to "B-AxB." But of course in English, including the English used by scientists of the highest caliber, "times" doesn't always mean "x" and "less" doesn't always mean "-." We see that from the very examples I just gave, as well as from observed common usage.

Nor can you somehow disprove my assertion by "logic" of the "but 'times' means multiplication!" sort. That is the logic of the calque, and while calques sometimes do create usage (in Russian, for instance, the word for "rhinoceros" is "nosorog," since "rhino-" translates as "nos" [nose] and "-ceros" translates as "rog" [horn]), sometimes they don't. If you want to know what is an acceptable form (though just one of several acceptable forms) in English, including scientific English, is, the actual usage of Newton and Herschel — and, I suspect, countless lesser lights of today — tells us more than the abstract logic of literal translation from mathematical symbols.

This having been said, it may well be that "A times less than B" is suboptimal usage, precisely because it annoys enough people. (I am skeptical that it genuinely confuses a considerable number of people.) But to say that the usage is "simply wrong" or "mathematically incorrect" is to misunderstand the connection between mathematics and English, including the English used by people who are masters of mathematics.

Finally, a request for people who want to argue the contrary: Please preface your comments with "Isaac Newton was wrong about how to talk in English about mathematics, and I am right, because ...."

UPDATE: A comment, which regrettably failed to follow the eminently reasonable request in the preceding paragraph:

It's disappointing to see Mr. Volokh make this argument. The formulation is confusing. It could reasonably be argued that while 3X10 equals 30 then 3Xless than 10 would be a minus 20. People who use math in their work would never use the subject formulation. I thought it was limited to journalists.

First, it could reasonably be argued that "three times less than ten would be a minus twenty" -- if one has no idea about how actual humans talk. Of course no-one would use "three times less than ten" to mean that. Perhaps it's distracting or annoying, but it would take a lot to persuade me that anyone would actually think "'"If the Diameters of the Circles ... be made three times less than before'; does that mean 1/3 of the original, or negative two times the original?." Maybe Data, but then again he seems to have had some troubles with contractions, too.

Second, "people who use math in their work would never use the subject formulation"? Really? Might there be some evidence against this assertion available, I don't know, somewhere? I'm not sure, but I could have sworn I saw some ....

Related Posts (on one page):

  1. "Times Less Than":
  2. Ten Times Lower:

Because the Democrats "Believe in" Government:

During the Bush years, we constantly heard the refrain, pushed especially by Paul Krugman, that the government was doing incompetent and corrupt things because conservative Republicans "don't believe in" government. Put the government in the hands of true-believing liberal Democrats, and incompetence and corruption will virtually disappear.

This always struck me as foolish, in part because the problems with government competence and integrity are structural, not individual, and in part because it required one to believe Krugman's fantasy that the Republican elite during the Bush years was dominated by wild-eyed libertarians intent on drowning the government in a bathtub, or something like that.

Anyway, here's the latest example of competence an incorruptibility from our liberal Democrat elites:

The Food and Drug Administration said Thursday that four New Jersey congressmen and its own former commissioner unduly influenced the process that led to its decision last year to approve a patch for injured knees, an approval it is now revisiting.

The agency's scientific reviewers repeatedly and unanimously over many years decided that the device, known as Menaflex and manufactured by ReGen Biologics Inc., was unsafe because the device often failed, forcing patients to get another operation.

But after receiving what an F.D.A. report described as "extreme," "unusual" and persistent pressure from four Democrats from New Jersey — Senators Robert Menendez and Frank R. Lautenberg and Representatives Frank Pallone Jr. and Steven R. Rothman — agency managers overruled the scientists and approved the device for sale in December.

All four legislators made their inquiries within a few months of receiving significant campaign contributions from ReGen, which is based in New Jersey, but all said they had acted appropriately and were not influenced by the money.

UPDATE: It's amusing to get accused of anti-Democrat "partisanship" in the comments for a post whose theme is that when given power the Democrats are just as corrupt and incompetent as the Republicans.


How About Getting the the Kennedy Family to Pay for This?:

Boston Globe:

A large military spending bill moving through Congress contains a little-noticed outlay for Boston that has nothing to do with national defense: $20 million for an educational institute honoring late Senator Edward M. Kennedy of Massachusetts.

It's not like the U.S. isn't broke or anything, and it's not like the Kennedys aren't filthy rich. And, if we truly wanted to honor "Sen. Kennedy's legacy," shouldn't the money be going to the poor or something? A very nice example of reverse Robin Hood--let's take from the taxpayers, and give to the Kennedys.

UPDATE: FWIW, I've been even more appalled over the years at the huge amount of taxpayer money spent "honoring" Ronald Reagan, starting with the huge Reagan trade center in downtown D.C. At least in Kennedy's case, it's not as if his legacy is supposed to be small government and low taxes.

Thursday, September 24, 2009

Ninth Circuit Defers Considering the Second Amendment Incorporation Case

until the Supreme Court decides whether to grant certiorari in the Second or Seventh Circuit cases. The order is here. According to Declan McCullagh (, "The justices are scheduled to discuss those cases on September 29, and are likely to announce their decision [on whether to hear the cases] soon after."


Amanda Frost, Guest Posting on the New DOJ State Secrets Policy:

(Note: I am delighted to put up this guest post by my Washington College of Law, American University colleague Amanda Frost, on the new DOJ policy on the state secrets doctrine. Amanda has done important academic writing in this area, including this 2007 Fordham Law Review article, as well as other areas related to federal courts, including this provocative recent piece in the Virginia Law Review, Overvaluing Uniformity. Amanda, thanks and welcome!)

As Jonathan and Orin have already noted, the Department of Justice issued a new policy regarding use of the state secrets privilege on Wednesday. In a memo, Attorney General Holder declared that the privilege should be reserved for cases in which the privilege is “necessary to protect information” that “could reasonably be expected to cause significant harm to the national defense or foreign relations”—a narrower standard than used in the past. Most important, the new policy establishes several additional layers of government review before the privilege can be asserted, culminating in the required pre-approval of the Attorney General himself. Holder also promises to report regularly to Congress regarding use of the privilege.

The new policy should be welcomed not only by critics of the privilege, but also by its fans. As the Obama Administration surely realized, the privilege was in danger of being limited by both the courts and Congress, since at least some members of both branches had lost faith in the executive’s ability to assert the privilege in good faith.

Ever since the Supreme Court first recognized the privilege in its 1953 decision in Reynolds v. United States, the lower courts have mostly deferred to executive claims of privilege, and Congress has chosen not to regulate or limit its use. Recently, however, the executive’s increasing reliance on the privilege as grounds for outright dismissal of cases challenging the legality of its conduct inspired the other two branches to push back. In the past few years, a few lower courts have denied claims of privilege on the ground that the government exaggerated the risks to national security of disclosure, and even speculated that the executive is too self-interested to be completely trusted with its use.

For example, in Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit commented that the executive might assert the privilege to avoid “embarrassment” rather than preserve state secrets, and thus refused to defer to the executive’s claimed need for secrecy in a case challenging the legality of extraordinary rendition. Congress is also seeking to take back control of the privilege. A bill entitled The State Secrets Protection Act, currently pending in the House, would limit and guide executive assertions of the privilege.

By voluntarily checking its own assertion of the privilege, the Administration may have slowed the momentum by these other two branches to establish greater restrictions on executive use of the privilege. For those, like myself, who are concerned about the privilege’s abuse in the hands of any executive, the new policy is a mixed blessing. Yes, I am happy to see the Administration voluntarily establish constraints on its use of the privilege, but I am hesitant to leave the privilege completely to the executive’s discretion. Ironically, then, the very policy shift that limits the privilege today may be the one that prevents courts and Congress from limiting abuse of the privilege in the future.

Zazi Detention Memo: The Justice Department filed a memo today making the case for detaining terrorist suspect Najibullah Zazi. It's a pretty riveting read. Of particular interest to me was the important role of computer forensics. By analyzing Zazi's computer, the government was able to reconstruct Zazi's web browsing history and show the details of the alleged plot to gather the chemicals for the bomb. I'm not at all surprised by the role of the computer search, but it's a high-profile example of how computer forensics is becoming an increasingly important part of major criminal cases.

Related Posts (on one page):

  1. Zazi Detention Memo:
  2. Zazi Indicted on WMD Charges:

My Constitution in 2020 Blog Post:

Yale Law School has organized a conference on The Constitution in 2020, a much-discussed recent book that puts together contributions by numerous prominent left of center scholars on the future of constitutional law. To their credit, the conference organizers have chosen to invite scholars with a wide range of viewpoints to the conference, including some who are conservative or libertarian. I will be appearing on the panel on Localism and Democracy, along with Ernest Young (Duke), Rick Schragger (Virginia), Ethan Leib (UC Hastings), and Judith Resnik (Yale, author of the chapter on federalism in The Constitution in 2020). The conference organizers have also created a website where each participant can summarize their presentations in a short blog post. Mine is available here. I include a brief excerpt below:

American federalism faces both great promise and serious dangers over the next few years. One of the most important advantages of federalism is the ability to “vote with your feet” – to leave a state with oppressive or ineffective policies and move to a better one . . . Increasing mobility and declining information costs give state and local governments stronger incentives to adopt policies that will be attractive to migrants. Revenue-hungry state governments know that valuable taxpayers will depart if they raise taxes too high or provide poor public services....

Unfortunately, American federalism is imperiled by the ongoing growth of federal power, especially the increasing dependence of state governments on federal funds. Our system has been successful in part because state governments have historically been forced to raise most of their revenue themselves. State governments that raise their own funds have strong incentives to adopt policies that promote economic growth and attract potential migrants. A state that falls behind its rivals is likely to lose its tax base. But states that can rely on federal funding to meet their fiscal needs face much less competitive pressure and are therefore less likely to adopt good policies.....

Federalism has also been weakened by the expansion of Congressional regulatory authority. The federal government has come to regulate almost every aspect of American society. This trend accelerated under the Bush Administration, which pushed through legislation expanding federal control of education and health care, and supported federal preemption of a variety of state laws, including ones permitting assisted suicide and the use of medical marijuana. The more policy areas come under federal control, the less the scope for interjurisdictional competition at the state and local level....

The 21st century could be an extraordinarily successful time for American federalism - but only if we restrain the growth of federal power.

Posts by the other participants are also available at the Constitution in 2020 blog site. The conference at YLS will be held October 2 to October 4. They are well worth reading if you are interested in the future of federalism. Yale has posted the conference schedule on its website.

UPDATE: In the original version of this post, I mislabeled Prof. Ernest Young's school affiliation. I apologize for the error, which has now been corrected.


The Free Press Clause:

Some people have argued that (1) statutes and constitutions should generally not be read in ways that render particular provisions superfluous, and (2) therefore the Free Press Clause should be read as providing special protection for the institutional press, beyond what the Free Speech Clause provides for other speakers.

I generally agree with point (1), but I don't think that point (2) follows. Protection for the "freedom of speech, or of the press" can quite sensibly be understood as ensuring that both speech (spoken words) and press (printed words) are to be equally protected (and perhaps other communication would be protected as well).

Without the Free Press Clause, the First Amendment might have been understood as not covering material that is printed and thus capable of being broadly disseminated. (One can imagine a government official arguing that speech, or even a handwritten letter, is all well and good, but printed material is much more dangerous; in fact, English history had been full of similarly justified restrictions on printing.) Without the Free Speech Clause, the First Amendment might have been understood as only covering material that is printed and thus capable of being broadly disseminated. Reading both clauses as protecting the same context, albeit in both media, doesn't make either provision superfluous.

Indeed, modern discussions of freedom of speech often cast it broadly enough to cover all communication, whatever the medium. But this broad understanding of the provision was likely itself molded by the breadth of the "freedom of speech, or of the press" language. To the extent that even newspaper publication is often described as protected under the Free Speech Clause, that's so precisely because the accompanying Free Press Clause has created a legally culture in which printed speech is as seen as no less protected than other speech.

I should note that, even independently of the above, I don't think the "press" must refer to the press as a business, as opposed to the press as a technology. But in any event, "freedom of speech, or of the press" strikes me as providing equal protection under both clauses, not special protection under one or the other.


The First Amendment and the Media/Nonmedia Distinction:

I was also pleased by this footnote from the Fourth Circuit's free speech / funeral picketing decision:

Neither the Supreme Court nor this Court has specifically addressed the question of whether the constitutional protections afforded to statements not provably false should apply with equal force to both media and nonmedia defendants. The Second and Eighth Circuits, however, have rejected any media/nonmedia distinction. Like those two circuits, we believe that the First Amendment protects nonmedia speech on matters of public concern that does not contain provably false factual assertions. Any effort to justify a media/nonmedia distinction rests on unstable ground, given the difficulty of defining with precision who belongs to the "media."

Sounds exactly right to me.

Related Posts (on one page):

  1. The Free Press Clause:
  2. The First Amendment and the Media/Nonmedia Distinction:
  3. Free Speech and Funeral Picketing:

Enforcing Trusts That Exclude Family Members Who Marry Non-Jews:

Max Feinberg's will provided that all his property would go into a trust. During his wife Erla's life, she'd get income from the trust. When she died, the property would go to their descendants, but providing that any descendant who married a non-Jew, and whose spouse didn't then convert to Judaism within a year of the marriage, would be "deemed deceased" and would forfeit the share. Erla also had a "power of appointment" under which she could reassign which descendants could benefit from the trust. Erla exercised this power precisely the way that Max provided in his will — by disinheriting the four or out of five grandchildren who married non-Jews.

A complicated decision today from the Illinois Supreme Court, in In re Feinberg, upheld the validity of Erla's decision, but left open the broader question whether Max's wishes could have been enforced in the absence of the power of appointment exercised by Erla:

[T]his is not a case in which a donee, like the nephew in the illustration, will retain benefits under a trust only so long as he continues to comply with the wishes of a deceased donor. As such, there is no “dead hand” control or attempt to control the future conduct of the potential beneficiaries. Whatever the effect of Max’s original trust provision might have been, Erla did not impose a condition intended to control future decisions of their grandchildren regarding marriage or the practice of Judaism; rather, she made a bequest to reward, at the time of her death, those grandchildren whose lives most closely embraced the values she and Max cherished.

Still, the decision had some interesting language that might be relevant more broadly:

Michele argues that the beneficiary restriction clause discourages lawful marriage and interferes with the fundamental right to marry, which is protected by the constitution. She also invokes the constitution in support of her assertion that issues of race, religion, and marriage have special status because of their constitutional dimensions, particularly in light of the constitutional values of personal autonomy and privacy.

Because a testator or the settlor of a trust is not a state actor, there are no constitutional dimensions to his choice of beneficiaries. Equal protection does not require that all children be treated equally; due process does not require notice of conditions precedent to potential beneficiaries; and the free exercise clause does not require a grandparent to treat grandchildren who reject his religious beliefs and customs in the same manner as he treats those who conform to his traditions.

Thus, Michele’s reliance on Shelley v. Kraemer (1948), is entirely misplaced. In Shelley, the Supreme Court held that the use of the state’s judicial process to obtain enforcement of a racially restrictive covenant was state action, violating the equal protection clause of the fourteenth amendment. This court, however, has been reluctant to base a finding of state action “on the mere fact that a state court is the forum for the dispute.” Indeed, Shelley has been widely criticized for a finding of state action that was not “‘supported by any reasoning which would suggest that “state action” is a meaningful requirement rather than a nearly empty or at least extraordinarily malleable formality.’” Adoption of K.L.P., 198 Ill. 2d at 465, quoting L. Tribe, American Constitutional Law 1698 (2d ed. 1988).

The court reversed a 2-1 appellate court decision to the contrary, which I blogged about last year. Thanks to How Appealing for the pointer.


Zazi Indicted on WMD Charges: Here's the report:
  Najibullah Zazi, the Denver man believed to be the central figure in a terror plot against the New York City transit system, has officially been indicted on charges of conspiracy to use weapons of mass destruction against persons or property in the United States, CBS 2 has learned.
  Zazi was scheduled to appear in court on Thursday in Denver on a count of lying to terrorism investigators. The new charge of conspiracy to use weapons of mass destruction was filed in New York City, and authorities plan to transfer him to the federal court in Brooklyn to face the new charges.
  Some people had wondered why Zazi had initially been charged just with lying to investigators, and not terrorism offenses: My assumption was that the government needed time to complete a forensic examination of the groups' computers to see what they could find.

Related Posts (on one page):

  1. Zazi Detention Memo:
  2. Zazi Indicted on WMD Charges:

Congressional Research Service on Whether the "Defund ACORN Act" Is an Unconstitutional Bill of Attainder:

Here's the report, published Tuesday. An excerpt from the Summary:

The two main criteria which the courts would likely look to in order to determine whether legislation is a bill of attainder are (1) whether “specific” individuals or entities are affected by the statute, and (2) whether the legislation inflicts a “punishment” on those individuals. Under the instant bills, the fact that ACORN and its affiliates are named in the legislation for differential treatment would appear to meet a per se criteria for specificity.

The U.S. Supreme Court has also identified three types of legislation which would fulfill the “punishment” prong of the test: (1) where the burden is such as has “traditionally” been found to be punitive; (2) where the type and severity of burdens imposed are the “functional equivalent” of punishment because they cannot reasonably be said to further “non-punitive legislative purposes;” and (3) where the legislative record evinces a “congressional intent to punish.” The withholding of federal contracts or grants does not appear to be a “traditional” punishment, nor does the legislative record so far appear to clearly evince an intent to punish. The question of whether the instant legislation serves as the functional equivalent of a punishment, however, is more difficult to ascertain.

While the regulatory purpose of ensuring that federal funds are properly spent is a legitimate one, it is not clear that imposing a permanent government-wide ban on contracting with or providing grants to ACORN fits that purpose, at least when the ban is applied to ACORN and its affiliates jointly and severally. In theory, under the House bill, the behavior of a single employee from a single affiliate could affect not only ACORN but all of its 361 affiliates. Thus, there may be issues raised by characterizing this legislation as purely regulatory in nature. While the Supreme Court has noted that the courts will generally defer to Congress as to the regulatory purpose of a statute absent clear proof of punitive intent, there appear to be potential issues raised with attempting to find a rational non-punitive regulatory purpose for this legislation. Thus, it appears that a court may have a sufficient basis to overcome the presumption of constitutionality, and find that it violates the prohibition against bills of attainder.

My much more tentative thoughts on the subject are here.

Related Posts (on one page):

  1. Congressional Research Service on Whether the "Defund ACORN Act" Is an Unconstitutional Bill of Attainder:
  2. Would Defunding ACORN Be an Unconstitutional Bill of Attainder?

Free Speech and Funeral Picketing:

The Fourth Circuit has just reversed — in Snyder v. Phelps — the $5 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians (that's the "God Hates Fags" group) who picketed the funeral of a slain soldier.

The court essentially concluded that, at least where speech on matters of public concern is involved (see pp. 25-26), the First Amendment precludes liability based on "statements on matters of public concern that fail to contain a 'provably false factual connotation'" (see pp. 16-20). This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within "one of the categorical exclusions from First Amendment protection, such as those for obscenity or 'fighting words'" (p. 18 n.12) it might be actionable. But if it's outside those exceptions, then it can't form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it's "offensive and shocking," or whether it constitutes "intentional, reckless, or extreme and outrageous conduct causing ... severe emotional distress" (p. 23).

I think the court was quite right, for the reasons I gave in my earlier criticisms of the district court's allowing the verdict. In particular, the decision helps forestall similar liability for other allegedly outrageously offensive speech, such as display of the Mohammed cartoons (or other restrictions on such speech, such as campus speech codes' being applied to punish display of the cartoons).

The court did leave open the possibility that some content-neutral restrictions on funeral picketing may be imposed (p. 32), but it didn't discuss this in detail. For more on that, see here.

One of the three panel members, Judge Shedd, didn't reach the First Amendment issue, but concluded that (1) there wasn't intrusion upon seclusion under Maryland law because the protest was in a public place, and not even very near the funeral (p. 40), (2) the protest was not "extreme and outrageous" enough for purposes of the emotional distress tort because it was "confined to a public area under supervision and regulation of local law enforcement and did not disrupt the church service."

Thanks to How Appealing for the pointer.


Academic Officiousness Gets Results:

I'm pleased to report that the city of Pipestone, Minnesota (pop. 4000) has amended City Code ch. 10 § 10.01, subd. 1E to read

It is unlawful for any person to: ...

E. Possess any other dangerous article or substance for the purpose of being used unlawfully as a weapon against another; ...

It had earlier read,

It is unlawful for any person to: ...

E. Possess any other dangerous article or substance for the purpose of being used lawfully as a weapon against another; ...

I ran across this in doing research for my article on nonlethal weapons, and e-mailed the city attorney's office to ask whether this was a typo; I was told that it was, and then to my surprise was told that -- now that they knew about it -- the city would change it. Woohoo! Now that's high impact law reform work for you. I hope my dean gives me suitable credit.

(Note that the change happened a few months ago, but I only now remembered to check on whether it had indeed happened.)


Iowahawk Publicizes NEA "demand for art and art-like products."

Iowahawk let's us know about the newest way to profit from the government's efforts to promote the arts:

Earn Big $$$ the NEA Way!

It's true — U.S. government demand for art and art-like products has never been higher! Uncle Sam and the good folks at the National Endowment for the Arts are on the lookout for go-getting, obedient artists like you for a fast-paced career in state propaganda. With the quick and easy Federal Art Instruction Institute course, now you too can get a first class ticket on the federal art gravy train!

And this ad is "just the beginning" (tip to Instapundit).

Should Laws Be Simple or Complicated? A Dialogue: The exchange below between Eric Posner and Jonathan Adler brings up the classic tension between simple laws and more complicated ones, and I wanted to blog more about it. In the abstract, everyone wants laws that are simple. The ideal is simple and straightforward. But often a single rule must regulate a very wide range of different circumstances, and then you get pressure to be more flexible: Either to enact a very vague standard that isn't clear (like "act reasonably"), or else to start carving out exceptions to the rule for all the specific cases you think need different treatment. The best way forward can be tricky. Put another way, the ideal is for law to be clear, simple, and sensible. But these goals are often in tension.

  To see an example of this, consider the following hypothetical exchange over how much privacy Congress should extend to e-mail. I'll make the exchange between "Complicated Karen" and "Clear Chris," who are both trying to figure out the law of e-mail privacy and what Congress should do. Clear Chris wants a clear and simple rule; Complicated Karen is concerned with making sure the law produces sensible results in different settings.
Complicated Karen: I've been thinking about how much privacy the law should give to private e-mails held by an ISP. A lot of people think e-mail should be protected by a warrant requirement. What do you think?
Clear Chris: I completely agree. I propose a simple rule: E-mail should be protected by a warrant.
Complicated Karen: Great. Now let's start thinking about some exceptions. Imagine an Internet subscriber wants the ISP to disclose the contents of his e-mail. Maybe he has forgotten the password, or he needs an authenticated version. Should we have an exception for consent?
Clear Chris: Well, yes, of course. If the person really consents, then the government shouldn't need a warrant. That's obvious.
Complicated Karen: Great. What kind of standard would you choose for consent? Knowing? Knowing and voluntary? Intelligent? Is it consent in fact? Would you allow implied consent? And what about third party consent? How about business e-mail?
Clear Chris: Woah, that's a lot of questions! I don't really know, to be honest. I just want the exception to be clear so people can understand it.
Complicated Karen: Sure, I agree, clear is great. At the same time, we need to think about just what kind of consent you have in mind. Otherwise it will just punt the issue for the courts to make up the law later on. Moving along, what about an exception for emergencies? Should we have an emergency exception? For example what if the police tip off the ISP that the e-mail is being used by a kidnapper, and the government would need several hours or more to get a warrant. Should we allow emergency disclosure if the ISP wants to disclose?
Clear Chris: I don't know, once we start getting exceptions, it seems like the exceptions are going to swallow the rule. But I'm not a nut; if there's really a kidnapping, and the ISP is willing to disclose, I think an emergency exception for kidnapping is reasonable. But I want the exception limited to kidnapping.
Complicated Karen: How about terrorists attacks? Serial killers? Maybe we should craft a general exception for severe emergencies?
Clear Chris: I'll have to think about that one; I'm pretty skeptical, but I'm not sure I would want to totally rule that out. Let's come back to that one.
Complicated Karen: Sure. What about if the ISP is outside the U.S.? What then?
Clear Chris: Who has an e-mail account outside the U.S.?
Complicated Karen: A lot of people do, actually. Someone in the US might have an account with servers in Canada. And for that matter, someone in Paris might have a Gmail account in the U.S. Do you want to require a warrant for all of these cases?
Clear Chris: I've never thought about that one, I have to admit. But well, yeah, sure, let's have a warrant requirement for those. I want a clear and simple rule, so let's keep it clear and simple.
Complicated Karen: Sure, that's fine. But to do that, we're going to modify some other laws. Under current U.S. law, U.S. officials can't get a warrant for overseas: warrants are traditionally for U.S. use only. And how do you want to create U.S. jurisdiction over crimes occurring abroad? If a person commits a crime in France, that can't authorize a U.S. warrant under U.S. law. We either need to negotiate a treaty with the French government to handle that, or else we can say that French crimes committed in France are U.S. crimes, too, allowing warrants to be issued in the U.S.
Clear Chris: Yikes, are you nuts? Suddenly you're talking about the treaties and French law, and all I wanted to do was have a simple rule! You keep trying to make things complicated. Why not just make it simple?
Complicated Karen: I'm trying to keep it simple, actually. But to make the law what you want it to be, you need to think about these issues: Otherwise you'll announce a simple rule but it won't have any legal effect because of other aspects of existing law.
Clear Chris: Lawyers! You guys always like to make things complicated; No wonder you bill by the hour.
  Of course, none of this suggests that clear rules are bad. To the contrary, they are the ideal, in my view. But clarity and simplicity are only some of the goals of legislation, and I don't think it works to simply assume that we necessarily want the law to be very simple and very clear no matter what. Put another way, sometimes the law is complicated not because of those darn lawyers, or because of evil interest groups, but because it needs to be complicated to avoid being an ass.

Further Defense of College Students' First Amendment Rights

-- and rejection of the "must prevent hostile environment harassment" justification for broad campus speech codes -- from Judge George King in Lopez v. Candaele.

The analysis is generally focused on campus speech codes, and distinguishes hostile work environment harassment law generally from similar restrictions emposed on college students. But part of its reasoning can also apply to First Amendment challenges to the application of hostile work environment harassment law to otherwise protected speech:

Defendants quote the Supreme Court’s statement in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), that “since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidently within the reach of a statute directed at conduct rather than speech.” This reliance on R.A.V. misconstrues the context and meaning of the Court’s discussion and mistakes its relevance to this case. In context, the Court was attempting to distinguish between instances where content-based regulation of a subcategory of otherwise proscribable speech is unconstitutional (as in the St. Paul ordinance at issue) from those where “a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech.” The issue before us is whether the Policy, in including expression within the scope of its regulation, unduly reaches a substantial amount of otherwise protected speech. It is no response to assert that a law may regulate a content-based subclass of unprotected speech that is swept up incidentally within the reach of a law targeting conduct rather than speech. Indeed, the Court went on to observe that “[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” Here, the Policy is undeniably aimed at the content of the expression by prohibiting speech involving certain content, i.e., sexist comments, insulting remarks or intrusive comments about one’s gender.

Defendants also cite the Court’s comment that “sexually derogatory ‘fighting words,’ among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices, 42 U.S.C. § 2000e-2; 29 CFR § 1604.11 (1991).” They argue that “[t]he [R.A.V.] Court singled out a time-tested definition of sexual harassment as an example of a valid proscription of ‘sexually derogatory fighting words.’” If this argument means that fighting words can be within the cited CFR definition of sexual harassment, it is both correct and irrelevant. Our conclusion is not that the Policy has no valid application. Rather we held that it was unconstitutionally overbroad by sweeping within its reach a substantial amount of protected speech. If, on the other hand, Defendants mean that all speech that offends this definition is necessarily proscribable as sexually derogatory fighting words, then we reject this argument as an unwarranted and unconstitutional enlargement of what constitutes fighting words.

This fits well with the argument about R.A.V. that I've made as to hostile work environment harassment law.

This case stems from the incident in which an L.A. City College speech class professor refused to grade a student's presentation, apparently because of the religious nature of the student's presentation, the student's expression of opposition for same-sex marriage in the presentation, or both. (The professor apparently also called the student a "fascist bastard" in front of the class for having supported the anti-same-sex-marriage Prop. 8, and refused to let the student finish the presentation.) The case filed over that became a general challenge to the campus speech code, which the court preliminarily enjoined in July. The decision I link to today rejects the defendants' motion for reconsideration.

Related Posts (on one page):

  1. Further Defense of College Students' First Amendment Rights
  2. Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:

Read the Bill -- A Reply to Eric:

I have read with dismay Eric's defense of the expectation that legislators should not read legislation upon which they will vote. I am dismayed because I think has adopted a caricature of the "Read the Bill" position, and because his post reflects an unrealistic account of how legislatures work that is contrary to my experience of the legislative process on Capitol Hill and after ten years of work for an interest group in Washington, D.C. (during which I was involved in drafting, commenting upon and analyzing legislative language with representatives and their staff, among other things), and because it presents an overly idealized view of the role of "experts" within our political system.

No one denies that an effective legislative process requires a "division of labor" or "delegation to trusted subordinates." As I've already written below:

It is certainly appropriate for legislators to rely upon staff to draft legislation, review legislative proposals, and serve as a filter identifying bills that might be worthy of support, and so on.. Indeed, legislators could not do their jobs without such assistance. But this does not relieve legislators of reading those pieces of legislation that seek to enact.
The question, which is relevant in private firms as well as in public entities, is what the proper scope of such delegations should be and, to what extent, principals need to perform certain functions for themselves.

The fact of the matter is that most legislative staff spend relatively little of their time reading and seeking to understand proposed legislation, let alone the small fraction of proposed legislation that may actually come up for a vote. They spend most of their time drafting correspondence, committee reports, talking points, memoranda, and the like, reading the same, as well as responding to constituent requests, meeting with staff from other offices, communicating with agencies, and so on. Legislative counsels also spend a decent amount of time drafting legislation. Under what I have proposed, none of this would change. Most legislative staff would continue to spend the vast majority of their time the same way that they do now. Committees and committee staff would still do the bulk of the heavy lifting on issues within their jurisdiction.

Since the legislator is the principal, I believe the legislator must, at the end of the day, assure him or herself that a given piece of legislation does what it is intended to do, and have some understanding of how it will achieve that end. This does not require tremendous expertise, but it does require, at a minimum, reading the bill's language (perhaps with the Ramseyer comparison already required in all House committee reports), meeting with more expert staff and, in many cases, hearing from experts. Is this too much to do for the small fraction of proposed legislation that may actually become law — that is, those pieces of legislation that pass committee and have a chance of a scheduled floor vote — hardly.

Two final points. First, Eric writes "political institutions are highly complex organizations that have evolved in response to needs and pressures." This is true as a descriptive claim, but it is hardly a justification of these political institutions. Much of what has evolved is the result of special interest pressures, rent-seeking, and the interests of political officials in evading accountability and capturing rents of their own. A process in which bills can be proposed and voted upon before anyone has had time to read them, including legislators and their staffs (as when omnibus amendments are offered on the floor on the eve of final passage), rarely serves the interest of "good legislation." It primarily serves those who seek either to push politically unpopular legislative changes or to enact targeted favors for prized constituencies. I've seen this first hand, and written up quite a few examples of the results. Does a "read the bill" obligation make all of this go away? Of course not. But it would make it harder for narrow interests to insert favors into highly complex bills, it would tend to encourage less complex legislation, and it would also further the goals of accountability and transparency. Legislators could be held accountable more easily, and the legislative process would be more transparent because if legislators had to have time to read the bills, then the interested public is more likely to have time to read legislation as well.

Second, I reject Eric's claim that "simple rules rarely do any good in complex settings." I am actually quite sympathetic to the opposite view, but that's a discussion for another time. I have other things to attend to, including a lecture by former OIRA Adminsitrator Susan Dudley this afternoon.

[NOTE: I made a few edits to fix typos and awkward phrasings.]


Should legislators read bills?

I have read with dismay David and Jonathan’s arguments that all legislators should read all bills before voting. The argument fits a genre of populist rhetoric that claims that problems of governance can be solved with simple, common-sense rules, denying that political institutions are highly complex organizations that have evolved in response to needs and pressures, and that simple-sounding rules rarely do any good in complex settings. Here, we should keep in mind that the ultimate function of the legislature is to produce good law; that determining whether a particular law is good or bad is such a complex and subtle task that all legislatures have found it necessary to divide labor, form committees, hire staff, expect particular legislators to become experts and leaders in particular domains, and, indeed, delegate many functions to unelected expert regulators. This means that, for virtually any law, only a handful of people can possibly have a sophisticated understanding of the bill in question. It’s not a matter of reading the bill or not; it’s a matter of knowing about the problems that the bill hopes to solve. You can read the Bankruptcy Code from start to finish and even if you have an IQ of 200, you won’t understand it unless you also know how courts interpret the Code, how businesses respond to it, how state governments work around it, how regulators like the IRS use it, how it affects the incentives of individuals and firms, the meaning of moral hazard, something about risk aversion, how credit markets work, and on and on. I would say a half hour conversation with a credible expert would be vastly more useful than reading the Code, and if you say the legislators should talk to the expert and read the Code, you need also to believe that reading the Code will add to understanding and the legislator has nothing better to do with his time (for example, consult another expert with a different background, or consult an expert about another bill). I don’t believe that in any sophisticated private firm operating in a market one would ever see serious discussion along these lines: delegation to trusted subordinates is the essence of organization in complex settings, and people are evaluated on the basis of outcomes (profits, in the case of firms; the quality of the legislation they voted for, in the case of legislators), not on their conformity with simple-minded rules of behavior.


Wednesday, September 23, 2009

Wall Street Journal on the Comprehensive Drug Testing Case: The Wall Street Journal has a helpful story on the Ninth Circuit's Comprehensive Drug Testing case that rewote the rules for computer search and seizure. I've blogged in detail about the case, but the WSJ story offers a nice introduction to the issue.

UPDATE: It seems that to get around the subscriber wall, you need to go here and click on the first link. Thanks to How Appealing for the tip.

Recent Computer Crime Legislation -- The Actual Text, So You Can Read It Yourself: I wanted to blog a bit about some recent computer crime legislation that Congress passed, but I realized that my instinct was to summarize the bill in my own words. As we know from the ReadtheBill movement, that's just lazy: If you really care about democracy, you want to read the actual bill. So here's the actual language of the Section of the bill I wanted to point out:
  (a) In General- Section 1030 of title 18, United States Code, is amended-- (1) in subsection (a)(5)--(A) by striking subparagraph (B); and(B) in subparagraph (A)--(i) by striking ‘(A)(i) knowingly’ and inserting ‘(A) knowingly’;(ii) by redesignating clauses (ii) and (iii) as subparagraphs (B) and (C), respectively; and(iii) in subparagraph (C), as so redesignated--(I) by inserting ‘and loss’ after ‘damage’; and(II) by striking ‘; and’ and inserting a period;(2) in subsection (c)--(A) in paragraph (2)(A), by striking ‘(a)(5)(A)(iii),’;(B) in paragraph (3)(B), by striking ‘(a)(5)(A)(iii),’; ‘(4)(A) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 5 years, or both, in the case of-- ‘(i) an offense under subsection (a)(5)(B), which does not occur after a conviction for another offense under this section, if the offense caused (or, in the case of an attempted offense, would, if completed, have caused)-- ‘(I) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the United States only, loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value; ‘(II) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;‘(III) physical injury to any persons; ‘(IV) a threat to public health or safety;‘(V) damage affecting a computer used by or for an entity of the United States Government in furtherance of the administration of justice, national defense, or national security; or ‘(VI) damage affecting 10 or more protected computers during any 1-year period; or ‘(ii) an attempt to commit an offense punishable under this subparagraph; ‘(B) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 10 years, or both, in the case of--‘(i) an offense under subsection (a)(5)(A), which does not occur after a conviction for another offense under this section, if the offense caused (or, in the case of an attempted offense, would, if completed, have caused) a harm provided in subclauses (I) through (VI) of subparagraph (A)(i); or ‘(ii) an attempt to commit an offense punishable under this subparagraph; ‘(C) except as provided in subparagraphs (E) and (F), a fine under this title, imprisonment for not more than 20 years, or both, in the case of-- ‘(i) an offense or an attempt to commit an offense under subparagraphs (A) or (B) of subsection (a)(5) that occurs after a conviction for another offense under this section; or ‘(ii) an attempt to commit an offense punishable under this subparagraph; ‘(D) a fine under this title, imprisonment for not more than 10 years, or both, in the case of-- ‘(i) an offense or an attempt to commit an offense under subsection (a)(5)(C) that occurs after a conviction for another offense under this section; or ‘(ii) an attempt to commit an offense punishable under this subparagraph; ‘(E) if the offender attempts to cause or knowingly or recklessly causes serious bodily injury from conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for not more than 20 years, or both; ‘(F) if the offender attempts to cause or knowingly or recklessly causes death from conduct in violation of subsection (a)(5)(A), a fine under this title, imprisonment for any term of years or for life, or both; or ‘(G) a fine under this title, imprisonment for not more than 1 year, or both, for--‘(i) any other offense under subsection (a)(5); or ‘(ii) an attempt to commit an offense punishable under this subparagraph.’; and (D) by striking paragraph (5); and (3) in subsection (g)-- (A) in the second sentence, by striking ‘in clauses (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B)’ and inserting ‘in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i)’; and (B) in the third sentence, by striking ‘subsection (a)(5)(B)(i)’ and inserting ‘subsection (c)(4)(A)(i)(I)’. (b) Conforming Changes- Section 2332b(g)(5)(B)(i) of title 18, United States Code, is amended by striking ‘1030(a)(5)(A)(i) resulting in damage as defined in 1030(a)(5)(B)(ii) through (v)’ and inserting ‘1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II) through (VI)’.
  Interesting, isn't it? I don't really have anything to say about it that isn't obvious from the text, but I thought you might want to read the text for yourself so you can understand what Congress did. It's always good to read the bill.

Clerkship Hiring -- How Bad Is It?: I've been hearing through the grapevine that the competition for federal clerkships this season has been much tougher than in the past. With the economy down, and firms limiting or delaying hiring, many more people than before applied and judges have more and better applicants to chose from. I haven't seen anything written on this, though, and I don't have anything more than anecdote to say if it's true, and if it's true, how bad it is. So I wanted to offer an open thread on the clerkship process for current law clerk applicants to offer their 2 cents. Among VC readers who recently applied for federal clerkships, what's the sense you have of how this year compared to previous years?

Hoover 's John B. Taylor is Econo-Blogging:

Stanford Professor and Hoover Institution senior fellow John B. Taylor has started up a blog, Economics One. His short Hoover Press book on the monetary origins of the financial crisis, Getting Off Track: How Government Actions and Interventions Caused, Prolonged, and Worsened the Financial Crisis, was a surprise intellectual intervention in analysis of the crisis and an instant mini-best-seller, as this kind of book goes. I don't pretend to any knowledge of monetary economics, but I am already a fan of Professor Taylor's blog (he makes interesting comments in a new posting, by the way, on his recent co-authored piece in the WSJ on the effect (non) of the stimulus).

(Tangentially, the director of the Hoover Institution remarked at a meeting on something different I was at yesterday that, just from a pure publishing standpoint, the speed with which Hoover Press was able to produce a very short, elegantly written essay, put it in a handsome hardback format with good design, high quality paper stock, great graphics, and get it out via Amazon backed up by Hoover Press directly to readers has altered how the institution thinks about in-house production. I wonder whether other think tanks or university presses will consider this model? Getting Off Track has sold something like 20,000 copies, and I would guess 80% have been via Amazon. I mean, you have to start with a great book, and let it go viral - but reducing the production cycle from over a year to a few weeks, with readers knowing they can just hit the one-click button and get two day Amazon Prime delivery ...)


Debating the Constitutionality of an Individual Mandate:

Apropos the recent discussion on this site, the Federalist Society is hosting a debate between David Rivkin and Jonathan Turley on the constitutionality of an individual mandate in Washington, D.C. tomorrow. Details here.


Another Question for Those Who Want Legislators to Take the "Read the Bill" Pledge: Another question for the ReadtheBillers. The rubber meets the road with elections. So imagine you go into the voting booth and you have two choices. The first choice is Legislator A, who votes the way you like, shares your ideology, and generally "gets it," even though he's not exactly a policy wonk and he doesn't actually read the bills. The second choice is Legislator B, who usually votes the wrong way, and is misguided on everything important, but who very conscientiously reads every word of every bill on his way to his wrong votes. Would you vote for Legislator A or Legislator B? Or perhaps you would write-in David Bernstein?

ACORN Sues Muckrakers and News Site:

Politoc reports that ACORN has filed suit in Maryland against the two young film makers who recorded their visits to ACORN offices disguised as a pimp and prostitute seeking tax and other assistance. ACORN's suit also extends to the internet news site, The complaint is here. More from the Washington Post here.


Some Legislators _Do_ Read Every Bill before Voting:

My father Jerry Kopel served 22 years in the Colorado House of Representatives. He represented part of northeast Denver, as a Democrat. Among the posts he held were Judiciary Committee Chairman and Assistant Minority Leader. (His website is here.) He did read every bill before voting on it. Sometimes he was the only legislator who did so; at other times during his tenure, there were a few others who did so, including Republican Tim Foster.

For 18 of the 22 years, he was a member of the minority party. By actually knowing what was in the bills, he was able to offer amendments to improve the bills, take out over-reaching provisions, and so on. More importantly, because he knew what the bills contained, he was not dependent on lobbyists to describe the bills to him. This was particularly important if the lobbying power on one side of a bill was very lopsided.

For example, in 1990 a bill to significantly expand Colorado's already-bad civil forfeiture laws was introduced. It passed the House Judiciary Committee 12-1. (Although my father served for many years on the Judiciary Committee, by that time he had switched to the Business Affairs Committee.) The weekend before it was due to come up on the floor of the House for a vote, he read the forfeiture bill. Speaking on the floor of the House, he showed the legislators that the bill was far more onerous than its lobbyists had claimed. The bill was defeated by a solid bi-partisan majority.

The Colorado Constitution requires that each bill shall only concern a single subject, which shall be clearly expressed in the title. This provision is sometimes stretched to the limit (and beyond) with broad titles such as "Concerning criminal justice" (the typical title for the District Attorneys' annual omnibus wish list). Even so, the single subject rule does help make legislation more comprehensible for citizen legislators.

One other data point on reading bills: When the NAFTA legislation was moving through Congress, Ralph Nader challenged the Senators and Representatives to read the bill, because, Nader said, reading it would change their minds. Colorado Republican Senator Hank Brown responded by reading the massive bill. As a result, he said, he changed his mind, and voted against it.


Read the Bill - A Response to Orin:

I won't speak for David, but as I've also blogged in support of the idea that legislators have an obligation to read legislation before they vote on it, I'll answer Orin's questions.

1. I believe no legislator should vote in favor of substantive legislation that he or she has not read or does not understand. If such a bill comes to a vote, the legislator should abstain or vote against the bill. Why is it okay to vote against the bill and not for it? Because a legislator should not act to alter or impose legal rights or obligations without understanding the changes in legal rights or obligations that he or she is imposing. A vote against legislation is a vote to preserve the status quo, and by voting against legislation a legislator is not altering anyone's rights or obligations. [Note: This does suggest a status quo bias, more than a libertarian one, as I think this principle should apply whether a law would increase or decrease the scope of government.]

2. Where legislation is a string of amendments to existing laws, a legislator should read what is necessary to understand the legislation. This probably requires reading the bill and, if the bill is unintelligible when read in isolation, some sort of before/after comparison of every provision of the U.S. Code that would be revised.

3. If a legislator does not believe he or she can ever vote in favor of legislation that contains a certain type of provision — a tax increase, a provision supporting or limiting abortion, or whatever — it would certainly be sufficient to stop reading once a legislator has reached an objectionable provision. As noted above, I also think it is reasonable for a legislator to vote against any and all legislation that he or she has not had the opportunity to read.

4. I would not excuse particularly popular legislation. If legislation is that popular, a delay of a day or two won't prevent its passage. I suppose there is an argument for excusing the failure to read lengthy legislation in emergency circumstances. On the other hand, if the nature of the emergency and length of the bill are such that a legislator does not have time to read the bill I would be quite suspicious about the wisdom of the legislation if for no other reason than if there's not time to read the bill, how could there have been time to draft a coherent and effective piece of legislation?

5. Since I think the legislators primary obligation is to read and understand substantive legislation before voting in favor of it, I don't think the standard applies to procedural votes. It would make sense, however, for a legislator to vote against ending debate before having read the bill, as this would provide time for legislators to read the bill.

6. Yes. Even though I would like to see the size and scope of the federal government shrunk dramatically, I think the legislators obligation is to read and understand that which he or she would legislate — that is, that which he would do to alter existing legal rights or obligations — so I would apply it to measures that would shrink the government as well.

Would my approach make it more difficult to enact legislation? Probably. Would it make it more difficult to pass widely supported or particularly important legislation? I doubt it. After all, if legislation is that good or that popular (even if not both), it should be able to withstand this requirement.

One final note: Of course this requirement is not enforceable. In an ideal world, legislators would recognize that reading and understanding legislation before they vote for it is a part and parcel of their obligation as legislators, and voters would not reelect those legislators that cannot or will not fulfill this obligation. I am under no illusion that this will actually happen, but it is a principle worth supporting nonetheless.

UPDATE: A question frequently asked of us "read the bill" types is "Why should legislators have to read the bills when they have staff? Isn't that what staff is for?" Not really. It is certainly appropriate for legislators to rely upon staff to draft legislation, review legislative proposals, and serve as a filter identifying bills that might be worthy of support, and so on.. Indeed, legislators could not do their jobs without such assistance. But this does not relieve legislators of reading those pieces of legislation that seek to enact.

Think of the legislator like a senior partner. It's perfectly appropriate for the senior partner to rely upon associates to conduct research, draft documents, review documents, and so on. But if the partner is going to sign his or her name to a legal brief, he or she better have read it. It is simply inappropriate for the partner to simply sign a document or brief on an associate's say-so. By the same token, when the legislator is prepared to enact legislation, he or she should have read the bill.


Pepper Spray/Tear Gas in New York City:

N.Y. City Admin. Code § 10-131(e) requires a permit to possess or carry "any lachrymating, asphyxiating, incapacitating or deleterious gas or gases, or liquid or liquids, or chemical or chemicals." But I'm getting mixed information -- including from police precincts -- about whether such permits are available, and whom I need to ask for such a permit; nor could I find any online instructions for this process, including permit application forms and the like.

Do any of our readers know more about this, or have personal experience with getting such permits?


The Right to Keep and Bear Arms

has, it turns out, been celebrated by Wisconsin's Citizen Soldier Highway ("in recognition of the right of the citizens of this state to keep and bear arms and as a tribute to all Wisconsin veterans, members of the national guard and any other reserve component of the U.S. armed forces, law enforcement officers, and fire fighters, and to the first citizen soldiers of this state, American Indians"), Georgia's specialty "The Right to Keep and Bear Arms" / "Shall Not Be Infringed" / NRA insignia license plates, and Montana's right to bear arms week:

The week beginning the first Monday in March is an official week of observance to commemorate Montana's valued heritage of the right of each person to keep and bear arms in the defense of the person's home, person, or property or in aid of civil power. During this week, all Montanans are urged to reflect on their right to keep and bear arms and to celebrate this right in lawful ways.


Steven Teles on Compassionate Conservatism:

Political scientist Steven Teles has an interesting article in National Affairs on the history and possible future of "compassionate conservatism, which he defines as an effort to change the image of onservatism by linking it to "concern for the poor and minorities." Teles is one of the leading academic experts on conservatism. He is the author of the excellent book The Rise of the Conservative Legal Movement, which I reviewed here, and which was also discussed in a series of VC posts. His analysis of compassionate conservatism is also well-worth reading for anyone interested in the subject. Steve correctly argues that compassionate conservatism has deep roots in various types of right of center thought, but that it has never really succeeded in breaking through politically.

I do have one reservation about his analysis. Unfortunately, Steve conflates two very different political agendas that both sometimes sail under the "compassionate conservative" flag. One is the idea of emphasizing elements of the traditional free market agenda that are particularly likely to benefit the poor and racial minorities - most notably school choice, enterprise zones, protection for property rights, and the like. This was the thought behind Jack Kemp's and the Heritage Foundation's advocacy of what they called the "empowerment agenda," which Steve mentions in the article. It is also at the heart of the strategy pursued by the libertarian Institute for Justice, which focuses on the ways in which eminent domain and restrictive licensing laws tend to harm the poor. Following Edward Glaeser, we can refer to this project as "small-government egalitarianism."

A very different type of compassionate conservatism was that pursued by the Bush Administration and its supporters: advocating big government economic and social programs similar to those traditionally supported by liberals, but with a conservative overlay. Examples include the No Child Left Behind Act (a massive expansion of federal education spending coupled with a few "accountability" measures favored by conservatives), the 2003 Medicare prescription drug bill (a massive expansion of federal health care spending, coupled with a small market-based program), and the Administration's ultimately disastrous efforts to use the federal government to, in Bush's words, "use the mighty muscle of the federal government" increase homeownership rates. More generally, Bush presided over a massive expansion of government spending and regulation; some of this was pure political opportunism, but much of it was also rationalized by the theory of compassionate conservatism. For lack of a better term, we can call this agenda "big government conservatism."

Small-government egalitarianism and big government conservatism have very different strengths and weaknesses. Although Steve suggests that conservative intellectuals have grown disenchanted with compassionate conservatism as a whole, most still support the ideas associated with the small-government egalitarian agenda. Small-government egalitarianism has much deeper roots on the intellectual right than big government conservatism, which few serious conservative thinkers find appealing, except as a political strategy. The political weakness of the small-government egalitarian agenda arises from the fact that it goes against the demands of powerful interest groups and doesn't spark much enthusiasm among the nonpoor, nonminority voters who form the base of the Republican Party. For these reasons, Republican politicians have (with rare exceptions such as Kemp), usually done little more than pay lip service to it.

The problem with big government conservatism, by contrast, is that its policies don't seem to be any better than the liberal ones they to a large extent mimic. Many conservative politicians (and a few intellectuals) went along with it nonetheless because it seemed politically advantageous to do so. It is still possible that this approach will be a winning political formula for the Republican Party. So far, however, it has fallen well short of delivering the political bonanza that Bush and Karl Rove expected. Some conservatives also hoped that big government conservative policies would forestall the enactment of even bigger expansions of government by liberal Democrats. That expectation, too, has been disappointed. Certainly, the passage of the NCLBA and the prescription drug benefit did nothing to diminish either liberal Democrats' or the general public's enthusiasm for further expansions of government in education and health care. Moreover, the close association between the big government version of compassionate conservatism and the discredited Bush Administration will make it difficult to revive conservative support for this set of policies - at least in the near future.

Steve suggests that advocates of compassionate conservatism must turn away from an exclusive focus on party politics if they are to succeed:

The most likely pathway back to influence for compassionate conservatism, however, may not run through party politics at all. Rather than attempt to use the Republican party as a battering ram to reform the welfare state, compassionate conservatism might return to its more ideologically ambiguous roots, seeking to advance itself through strange bedfellows rather than party-line coalitions. Compassionate conservatives could rebuild their linkages with reformist Democrats, changing policy slowly by reshaping the conventional wisdom in both parties. The future of compassionate conservatism may, like progressivism before it, depend on attracting "respectable people" across the political spectrum through a slow process of experimenting, organization-building, and seeking out allies. History suggests that this will be a more durable strategy for compassionate conservatism than capturing the Republican party, which has at best been its fair-weather friend.

There is, I think, some truth to this. Parts of the small-government egalitarian agenda could appeal to liberals and centrist, as witness the widespread liberal and moderate opposition to economic development takings. However, it will be difficult going at a time when most liberal opinion leaders are intent on an agenda of expanding the size and scope of government. Moreover, the widespread perception that the current economic crisis was caused by free markets has turned most liberals away from the flirtations with limiting government that some were open to in the Clinton era. It will be some time before they are willing to reconsider.

Big government conservatism, by contrast, is most likely to be revived if the Republicans once again come to see it as politically advantageous. It has little appeal to most right of center intellectuals (most of whom became right of center in the first in large part because they are suspicious of big government, at least in economic policy), and its appeal to liberal intellectuals may be even smaller. And if a big government conservative revival does happen, it probably won't use the "compassionate conservative" label that has been tarred by association with Bush.


Thesaurus Inventus:

What does this Latin phrase mean? No fair peeking (and if you need to peek, the answer is here).


Questions for Those Who Want Legislators to Pledge To Read Every Word of Every Bill Before Voting: As a follow up to David Post's post below, I have some practical questions for those who think that legislators should "never vote on any bill unless they have read every word of it."

1. Would you also require the legislator to understand the bill? Or is mere reading, with no comprehension, enough? And if comprehension is required, how much comprehension is required, and how would you test that?

2. Imagine a particular bill is a long list of amendments to prior sections of the U.S. Code — perhaps hundreds of pages of amendments such as, "Insert 'and affects' after 'channels' in 5 U.S.C. 1040(a)(7)(C)." Would you also require the legislator to read the law that is being amended?

3. Imagine that a legislator has promised to vote against legislation of that general type — for example, he has promised to vote against all tax increases, and the bill includes a tax increase. Does he still have to read every word of the bill even though he has promised to vote against it?

4. Imagine a bill is up for a vote, and the bill is overwhelmingly popular: No one opposes it. It is also hundreds of pages long. Should the legislator have to read every word anyway? Or is there some threshold of controversy or importance that needs to be crossed before the reading requirement is triggered?

5. Does the reading requirement apply to procedural votes, like cloture, or is it only on the passage of the legislation itself?

UPDATE: Here's a bonus question:
6. Imagine Congress wants to dramatically limit the role of the federal government in American life, and there are bills up for a vote that do just that. The bills are very long, however, as they need to amend many laws, remove old parts, and introduce new parts that dramatically cut back on the size and scope of the federal bureaucracy. Do legislators need to read every word of those bills, too?

Should Lawmakers, Um, Read the Laws They're Voting On?:

Sounds like something you'd ask in a third-grade civics class. But an odd editorial in today's Washington Post, takes to task "a group of well-meaning professional activists — and, so far, over nearly 60,000 online petitioners" who have demanded that members of Congress sign a pledge "never to vote on any bill unless they have read every word of it." While the activists "have a point," the Post concedes, their "proposal would bring government to a standstill." No reasonable functioning human being, the Post (correctly) points out, could possibly read every word of every bill that comes out of Congress, and legislators need time to do other things — to "hammer out legislation, draft amendments, interact with constituents, lead hearings . . . At some point, it's fine for members of Congress to rely on expert staff members."

I suspect that there's a fairly clear divide among people on this question. Some, like me, think it's pretty obvious: you can't know what a law means unless you've read its language, and you shouldn't be voting on a law if you don't know what it means. Seems pretty basic, actually. It's a task that, I would think, is primary — drafting amendments, and interacting with constituents, and the many other things members of Congress do, are secondary; Law-Making is what they are in Washington (or, for that matter, in Albany, or Harrisburg, or Springfield) to do, and the idea that they should "rely on experts" to do their job is pretty spectacularly wrong. But I know that there are plenty of people who agree with what the editorial is saying, and who think that there's no point in demanding the impossible.

I'm not a fool - I know full well that not a single member of Congress read every word of, say, the 1,427-page Waxman-Markley energy bill. But I think we give up something valuable if we accept that as acceptable behavior. I guess it didn't occur to the editorialists at the Post that if members of Congress actually tried to live up to this most basic obligation, that 1,427-page long bills would no longer be introduced, which would surely, all other things being equal, be a good thing for the Republic.

[Thanks to the Cato Info Policy newsletter for the pointer]


The Humana Controversy and Government Funding:

Various people defended the Department of Health & Human Services "instruct[ing]" Humana to stop distributing allegedly "misleading and confusing" political advocacy, on the grounds that Humana gets huge benefits from participating in various DHS programs. But while the government has substantial control over how government program dollars are spent by people and institutions hired to administer the programs, the government may not impose blanket limits on everything the recipients say, as a condition of participating in the program. Rather, the recipients must retain the right to speak using their own money (at least unless their speech is otherwise punishable).

Here's the relevant passage from Rust v. Sullivan:

The Secretary's regulations [restricting the use of government funds for abortion-related speech] do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. The grantee, which normally is a health care organization, may receive funds from a variety of sources for a variety of purposes. The grantee receives Title X funds, however, for the specific and limited purpose of establishing and operating a Title X project. The regulations govern the scope of the Title X project's activities, and leave the grantee unfettered in its other activities. The Title X grantee can continue to perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.

In contrast, our "unconstitutional conditions" cases involve situations in which the government has placed a condition on the recipient of the subsidy rather that on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. In FCC v. League of Women Voters of Cal., we invalidated a federal law providing that noncommercial television and radio stations that receive federal grants may not "engage in editorializing." Under that law, a recipient of federal funds was "barred absolutely from all editorializing" because it "is not able to segregate its activities according to the source of its funding" and thus "has no way of limiting the use of its federal funds to all noneditorializing activities." The effect of the law was that "a noncommercial educational station that receives only 1%" of its overall income from [federal] grants is barred absolutely from all editorializing" and "barred from using even wholly private funds to finance its editorial activity." ...

So if the government simply directed Humana not to use federally-provided funds for its political advocacy to recipients, that would be permissible. It's possible that if Humana used a federally-provided mailing list for its mailing (I don't know whether that's true), the government could attach similar restrictions on the use of the mailing list. But the government went further: It instructed Humana even to take the advocacy off its Web site, without regard to whether Humana used government-provided money for such advocacy. That, it seems to me, is unconstitutional under FCC v. League of Women Voters.

To be sure, because money is fungible, this League of Women Voters principle in effect does stop the government from making sure that its subsidies aren't indirectly used for certain speech. If the government gives someone $1 million (whether as a subsidy or as fair market compensation for the value of its services), and the speaker continues speaking using what is ostensibly its own money, that speech will still be much facilitated by the government grant -- the $1 million will free up money that the recipient would otherwise have had to spend, and will let the recipient use that freed-up money for its own speech.

But the Court considered that argument in League of Women Voters and rejected it. And when the government (federal, state, and local) controls 25-30% of the GNP, and provides valuable range of contracts and subsidies to a vast range of institutions, including private universities, think tanks, newspapers, and so on, giving the government a free hand to restrict recipients' speech as a condition of its contracts would give the government vast power over public debate.


Canadian Commission Approves Monument Named "To Victims of Totalitarian Communism":

So says this press release; I blogged about the name controversy last week.

Thanks to Alykhan Velshi, Communications Director for Canadian M.P. Jason Kenney, for the pointer.

Related Posts (on one page):

  1. Canadian Commission Approves Monument Named "To Victims of Totalitarian Communism":
  2. Mustn't Offend the Communists:

DOJ's New Policy on Invoking the State Secrets Privilege: Jonathan mentioned it below; the text of the policy is here. This gist of the policy is that DOJ will invoke the privilege only where it's reasonably needed, not reflexively, and that a lot of high-ranking DOJ officials need to evaluate and review each internal DOJ request to invoke the privilege, with the final decision coming from the Attorney General. The standard seems reasonable to me; all that internal review sounds pretty time consuming, but then I suppose they can amend the policy down the road if it ends up taking too much time.

Related Posts (on one page):

  1. DOJ's New Policy on Invoking the State Secrets Privilege:
  2. Narrowing the State Secrets Privilege:

Co-Conspirator Eric's Think Again Column ...

and a brief note on the UN General Assembly meeting, the G-20 meetings, Eric's state-rational-interests view of international law, and the effect of the US security guarantee on UN collective security calculations. Random thoughts, pretty much. (You can read a much more sanguine view of international law and the General Assembly opening by my Opinio Juris co-blogger Peggy McGuinness, here, and you probably should, for a more balanced take-away.)

Over at Foreign Policy magazine's blog, Eric (as he noted yesterday) has a brief, breezy column on differences, or not, between the Bush and Obama administrations on international law. Fun, quick read, whether one agrees or not; I tend to agree with the diagnosis (although I am not a realist in the same way or extent as Eric; not a realist, but also not a liberal internationalist). Events of the moment - the opening of the UN General Assembly, the UN confabs on things like climate change, the G-20 meetings, etc. - provide many opportunities to consider Eric's assessment of how international law works, or doesn't.

There are things on which I imagine the G-20 will finally manage to come to some reasonably wide agreement, and manage reasonably wide adherence - most important, capital adequacy standards for banks. That's different from saying that whatever the new standard is called (I bet it won't be 'Basle III') will turn out any better than Basle II, but I think this level of matters of shared standards will look much more like trading regimes than the track record of big political stuff, whether in climate change, security, or larger issues of the global economy.

Which is to say, in the Anderson view, the closer an issue gets to looking like political governance, the more likely that it will receive grand diplomatic rhetoric and the less likely that it will actually happen. The traditional international law professor view, if I can call it that, is that this is no more than the fact that greater political ambition requires greater diplomatic effort and will, which is part of what gives academic international law that peculiar sense of camp meeting revivalism. Eric's view would be that there's only a limited set of issues (trade and a few others) in which states are willing to give up much for real. My view differs from Eric's in that I see this unwillingness on the part of states as being much more a function of legitimacy, and its lack within global institutions and law for political ends as they grow more ambitious. There is an independent question as to whether, in any particular circumstance, agreement will be reached at all, or whether insincere promising and defection and free riding will simply be left to work their slow corrosion.

Time heals all things, as it were, including international commitments one didn't really intend, or intends with complete and utter sincerity now but not necessarily a nanosecond from now. So perhaps we need a new term, "serial sincerity" in relations among states, an essential element of which is "serial forgetting" of the thing to which one was last sincerely committed to.



An Unusual Religious Accommodation / Religious Discrimination Issue:

From the Atlanta Journal-Constitution:

A federal bankruptcy judge on Thursday ruled that the Hindu Temple of Georgia must allow creditors onto its property to inventory its assets and must not spend its income.

Attorneys for the temple, which filed for Chapter 11 bankruptcy earlier this month to avoid foreclosure of its Norcross facility, had sought to block creditors from photographing or entering its holy places. They said any non-Hindus were barred from entering the temple while the priests are undergoing a 216-day period of spiritual cleansing.

However, Judge James E. Massey found a compromise: whoever is sent by creditors to photograph and inventory the rooms must be a Hindu.

Would it be legal for a creditor to assign this particular job task to an employee based on the person’s religion? Would that turn on whether there’s some tangible benefit involved — such as extra overtime pay — rather than just a one-time ask assignment? Would the classification be permissible on the grounds that in this case religion is an acceptable bona fide occupational qualification under Title VII? (For more on BFOQs, though in the context of sex classifications, see here.) Relatedly, what if there’s a controversy about whether the selected person really qualifies as a Hindu?

Or would the creditor likely avoid all this by just using an independent contractor? To my knowledge, religious discrimination in selecting independent contractors is generally not illegal under federal law, though I can't speak about Georgia law on this.

More broadly, whether or not it's legal for creditors to do this on their own, there's also the question whether it's constitutional for a government agent — the judge — to order it. Is it unconstitutional discrimination based on a person's religion, or an acceptable accommodation of the temple's religious practice?

I'm inclined to say that no-one will sue over this; but it still strikes me as an interesting scenario. Thanks to Religion Clause for the pointer.


CRS on the Honduras "Coup":

The WSJ's Mary Anastasia O'Grady cites a new report by the Congressional Research Service on recent events in Honduras:

a report filed at the Library of Congress by the Congressional Research Service (CRS) provides what the administration has not offered, a serious legal review of the facts. "Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system," writes CRS senior foreign law specialist Norma C. Gutierrez in her report.

The report also apparently says:

"The Supreme Court of Honduras has constitutional and statutory authority to hear cases against the President of the Republic and many other high officers of the State, to adjudicate and enforce judgments, and to request the assistance of the public forces to enforce its rulings."

I have yet to find a copy of this report on-line (it's not this one). When I do, I will post a link and additional excerpts if warranted.

Related Posts (on one page):

  1. "CRS Report" on Honduras "Coup":
  2. CRS on the Honduras "Coup":

Hands Off My Fresca:

William Saletan on the new paternalism:

Weisberg put his finger on the underlying trend: "Because Democrats hold power at the moment, they face the greater peril of paternalistic overreaching." Today's morality cops are less interested in your bedroom than your refrigerator. They're more likely to berate you for outdoor smoking than for outdoor necking. It isn't God who hates fags. It's Michael Bloomberg.

In [Daniel] Engber's case [see here], the provocation is scientific. To justify taxes on unhealthy food, the lifestyle regulators are stretching the evidence about obesity and addiction, two subjects on which Engber is burdened with contrary knowledge. Liberals like to talk about a Republican war on science, but it turns out that they're just as willing to bend facts. In wars of piety, science has no friends.

This sort of paternalism actually isn't so new, but it's a good thing folks like Saletan are beginning to take notice.


A Federal Agency Libertarians Could Love:

Reason's Radley Balko supports the creation of a new federal agency, and it might actually be a good idea.


SG Briefs in Pending Cases:

SCOTUSBlog has posted links to briefs filed by the Office of the Solicitor General in pending cases before the Supreme Court.

Among the briefs that caught my eye is that in Pottawattamie County, Iowa v. McGhee, in which the Justice Department supports absolute immunity from Section 1983 suits for prosecutors who (as alleged in this case) deliberately procured false testimony during a criminal investigation and then knowingly introduced this testimony at trial to obtain a wrongful conviction. (More on the case here.) The brief argues that absolute immunity for prosecutors has deep roots in the common law and is necessary to prevent the threat of liability from altering how prosecutors do their jobs. I don't know enough about the history of this sort of thing to evaluate that aspect of the SG's argument. I also recognize that some applicable precedent may ultimately control the outcome of this case. Nonetheless, as a policy matter it seems incongruous to defend the position that prosecutors should have greater immunity for deliberate misconduct of this sort than do police officers, who only receive qualified immunity. What am I missing?


Narrowing the State Secrets Privilege:

The Obama Administration is preparing to announce a new policy that would limit the use of the state secrets privilege, according to reports in the New York Times and Washington Post. The policy will take effect October 1. From the Post:

The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to "national defense or foreign relations." In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.
From the NYT:
Under the new policy, if an agency like the National Security Agency or the Central Intelligence Agency wanted to block evidence or a lawsuit on state secrets grounds, it would present an evidentiary memorandum describing its reasons to the assistant attorney general for the division handling the lawsuit in question.

If that official recommended approving the request, it would be sent on to a review committee made up of high-level Justice Department officials, and then to Deputy Attorney General David W. Ogden and Mr. Holder. All those officials would be charged with deciding whether the disclosure of information would risk “significant harm” to national security, and they would be instructed to seek a way to avoid shutting down the entire lawsuit if possible.

If the Justice Department signed off on asserting the privilege, the head of the agency controlling the information would sign a classified memorandum to be filed with a court explaining in detail the government’s reasoning. A judge could request access to particular pieces of underlying evidence.

The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.

The new policy would also direct the Justice Department to reject a request to use the privilege if officials decide the motivation for doing so is to “conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment.”

President Obama announced his intention to revise federal policy concerning the state secrets privilege back in April. The Administration's repeated invocation of the privilege in ongoing litigation and suggestion that the privilege has constitutional roots prompted substantial criticism, particularly from civil liberties groups. While the policy change is unlikely to undo prior assertions of the privilege, it will limit the use of the privilege going forward.

This change may have been a long time coming, but that is not a surprise. Federal policies of this sort cannot be changed overnight -- at least not without substantial cost. Specific policy guidelines and supporting memoranda must be drafted and approved after input from affected agencies. This can be a lengthy process, particularly when key offices in the relevant agency are vacant and the Administration has other pressing priorities on its plate. While I suppose the President could have immediately suspended reliance on the privilege, he took a more responsible course: ordering a review of how the privilege is used and tasking Justice Department attorneys with developing a new policy that will safeguard vital government interests in a less intrusive fashion.

Based on these news reports, it sounds like the new policy is a significant improvement. The state secrets privilege should be used quite sparingly, and only then as a last resort. It should not be a ready tool to make embarrassing or inconvenient litigation go away. Developing more formal guidelines is also an improvement, as the lack of clear rules makes it easier to invoke the privilege unnecessarily. It is only natural for government attorneys to seek any and all means of dismissing unwanted litigation -- after all, their goal is win for their client (which, for most governemnt attorneys, is the government). Therefore, clear rules and procedures limiting the privilege will reduce this potential for abuse. Even if the new policy would have allowed invocation of the privilege in the recent cases that sparked the controversy, it should provide greater assurance that the privilege is only invoked when it serves a legitimate purpose.

Related Posts (on one page):

  1. DOJ's New Policy on Invoking the State Secrets Privilege:
  2. Narrowing the State Secrets Privilege:

"Burglar Leaves His Facebook Page on Victim’s Computer,"

reports The Journal (Martinsburg, W. Va.). Thanks to GeekPress for the pointer.


Tuesday, September 22, 2009

Does the Wrongful Issuance of an Arrest Warrant Violate a Person's Fourth Amendment Rights if the Warrant is Never Executed?: The BLT has an interesting report on a case in the DC Circuit that raises a fascinating Fourth Amendment issue: Does it violate a person's Fourth Amendment rights if the government wrongfully obtains an arrest warrant authorizing the person's arrest if the warrant is quickly withdrawn and never actually executed? More specifically, if the person claims that the existence of the unlawful arrest warrant caused him harm, can he recover damages under the Fourth Amendment even though he was never searched or seized?

  It's an interesting question, and off the top of my head, I don't think I have heard of another case quite like it. On one hand, the plain text of the Fourth Amendment prohibits the issuance of a warrant not based on probable cause and not sufficiently particular: That seems to focus attention on the issuance of the warrant. On the other hand, modern Fourth Amendment doctrine generally holds that the Fourth Amendment only regulates searches and seizures, and there was no search or seizure here.

  Perhaps the most analogous case is Groh v. Ramirez, a case involving the execution of a warrant that was later discovered to be defective. The police obtained the warrant, but in the place of the warrant where the agent was supposed to type in the items to be seized, he accidentally typed in the place to be searched. It seems that no one noticed the error until after the search was executed: Notably, the affidavit and application both contained particular descriptions of the items to be seized, and the warrant was actually executed in a reasonable way. In a 5-4 decision, the Court held that the Fourth Amendment was violated and that the officer who obtained and executed the warrant could be held personally liable because the search was not accompanied by a valid warrant.

  I 'm not sure which way Groh cuts. On one hand, the opinion suggests that the harm was the search of the plaintiff's home without the required warrant. According to the Court, the lack of a valid warrant transformed the search into an unlawful warrantless search, which violated the Fourth Amendment. If you take that view, the Fourth Amendment violation would seem to be the search, not the issuance of the warrant. On the other hand, Groh doesn't necessarily rule out liability for the mere issuance of the unlawful warrant. Plus, the actual search was performed in the same way as it would have been performed had the warrant been constitutional: No one knew the warrant was bad until the next day. In light of that, it seems a little strange to say that the unconstitutionality was in the search rather than the warrant.

  Anyway, I don't have strong views one way or the other on the merits of this one, but I thought readers would find it interesting.

Talk at NYU Law Tomorrow:

Here's the announcement, from the NYU Federalist Society.

TOMORROW (Wednesday) @ 4:30 in Vanderbilt 204

David Bernstein Law Professor at GMU and Blogger at the Volokh Conspiracy

Speaking about his forthcoming book Rehabilitating Lochner -- Lochner v. New York is a famous Supreme Court case from 1905 that invalidated a maximum hours law under an implicit Constitutional principle of liberty of contract. Lochner since has become one of the most reviled and infamous cases in history, symbolizing judicial overreaching and activism in the name of ideology. Professor Bernstein's forthcoming book, Rehabilitating Lochner, proposes to do exactly what the title attests.

There will be cupcakes!

The book will also be the subject of NYU's legal history colloquium earlier in the afternoon, so it's going to be day full of Lochner for me.

17-Year-Old Who Converted from Islam to Christianity, and Ran Away from Home

will stay in Florida temporarily, though perhaps only briefly, and not with the family with which she had been staying:

A Florida judge said Monday that a teenage girl who ran away from her New Albany home over religious beliefs won't immediately be returned to her parents.

The judge ruled that she will stay in Orlando and can have no contact with the Christian pastor's family that she was staying with, Orlando television station WFTV reported.


A judge in Florida said Monday he plans to talk to a judge in Ohio to determine where the case of Rifqa Bary belongs.

Bary, 17, is the religious runaway who in July fled here from her home near Columbus, Ohio, because she believes her Muslim family has to kill her due to her conversion to Christianity.

Authorities in both states say there's no credible threat against the girl. Her parents say they don't want to hurt her....

The judge set mediation between the girl and her parents with attorneys for Oct. 9. He set a pretrial hearing for Oct. 13. If the case is shifted back to Ohio, he said, those dates would be made moot.

Thanks to Religion Clause for the pointer.


Major Modifications to CFPA:

It looks like major modifications to the CFPA are on the table, including eliminating many of the most troubling elements, such as the "plain vanilla" proposal, the consumer comprehension tests, and the application to non-financial firms. Details here.


Think Again: International Law.

At the invitation of the Foreign Policy blog, I wrote some brief comments on the differences between Obama and Bush’s approaches to international law. If you’re curious, go here.


Does It Violate the Fourth Amendment For Cops to Take Some Time Out and Play Wii During the Execution of a Warrant?: The headline is not from the Onion. Tampa Bay Online reports:
  With guns drawn and flashlights cutting through darkened rooms, Polk County undercover drug investigators stormed the home of convicted drug dealer Michael Difalco near Lakeland in March.
  As investigators searched the home for drugs, some drug task force members found other ways to occupy their time. Within 20 minutes of entering Difalco's house, some of the investigators found a Wii video bowling game and began bowling frame after frame.
  While some detectives hauled out evidence such as flat screen televisions and shotguns, others threw strikes, gutter balls and worked on picking up spares.
  A Polk County sheriff's detective cataloging evidence repeatedly put down her work and picked up a Wii remote to bowl. When she hit two strikes in a row, she raised her arms above her head, jumping and kicking.
  While a female detective lifted a nearby couch looking for evidence, another sheriff's detective focused on pin action.
  But detectives with the Polk County Sheriff's Office, the Auburndale, Lakeland and Winter Haven police departments did not know that a wireless security camera connected to a computer inside Difalco's home was recording their activity.
Here's a photo of the action:

  Assuming playing Wii didn't lead the police to discover any evidence, I don't think the defendant can get any of the evidence suppressed. And it's hard to know what the damages are in a civil suit, even assuming that there was in fact an unauthorized Wii seizure (a wee seizure, I suppose!). But c'mon, folks: Wii is for home, not work, especially when you are conducting a police raid.

  Thanks to Gregory McNeal for the link.

Conceptions of Constitutionality -- More Thoughts In Reply to Randy: I appreciate Randy's clarification below. Where we differ, I think, is that Randy believes that we need a correct conception of what it means to say something is "constitutional" that we should use even with people who disagree with it. Randy acknowledges that his personal views of the Constitution need not be used, but he argues that, as a normative matter, views should be based on the written Constitution. That is the correct conception, so it is the one that should be used. He concludes:
  I am still not sure on what you think opinions about "constitutionality" should rest, except perhaps on predictions on what the Supreme Court will do in the future. Maybe these questions will illustrate how this in not a mere semantic or rhetorical move: In a case of first impression--arguably like Heller--how would you make a constitutional argument based on your prediction of the votes of five justices? What should we have argued in Raich? Should the SG have based his constitutional argument on your predictive assumption about the votes of five justices in cases in which "federalism matters"?
  Frankly, I am having a hard time operationalizing your conception of constitutionality based on what you predict the Court will do in a particular case.
  I fear Randy is having a hard time operationalizing my conception of constitutionality because I am not offering a conception of constitutionality to operationalize. My primary concern is clarity, not constitutional theory. I want to make sure that we're using language in a clear way, not advocate a specific constitutional vision.

  As for what lawyers should do when representing clients in court, they should do in constitutional cases what lawyers always should do: They should make the arguments that they think will persuade a majority of the court to rule in their favor. Exactly what those arguments are depends on the case, of course. Sometimes the arguments most likely to persuade a majority will rely on precedent, sometimes history, sometimes function, and sometimes text. Often a mix of most or all of the above is the best; it just depends on the case. But again, this isn't a question of constitutional theory. It's just a question of maximizing the chances you will win.

  Some may conclude that my approach is empty. As you might guess, I disagree. The reason is that you can believe strongly in a particular way to interpret the Constitution while recognizing your view is controversial or not widely shared. And I think the fact that it's controversial or not widely shared imposes a duty of candor when speaking with those who look at it differently. So you can have your views; hold them passionately; believe that you are right and that everybody else in the universe is wrong. But I think it's most fair to be candid that you have your view and others disagree: Embedding normative views in loaded terms like "the real Constitution" seems to me to shed more heat than light.

  I don't think this imposes such a serious burden. If someone asks you if X is constitutional, you can simply say, "Under existing law, yes, although I believe that's wrong." I think this is the most informative kind of answer.

Independence Institute cert. petition in campaign finance case:

The Independence Institute, where I work, is a think tank that speaks on a wide variety of issues. In 2005, we produced extensive research and public information about Colorado referenda C and D. (C was the largest tax increase in state history, and D was a debt increase. C passed and D was defeated.) The Institute was harassed by a complaint filed by one of the proponents, which automatically triggered an administrative hearing under Colorado's very restrictive campaign finance laws. The Independence Institute ultimately prevailed, but only at the cost of a major distraction of time and money shortly before what turned out to be a close election. The Institute for Justice (based in D.C.) has filed a First and Fourteenth Amendment challenge to the Colorado law. The questions presented are:

1. Whether the First and Fourteenth Amendments forbid Colorado from imposing registration, administrative, and continuous reporting regulations on policy organizations that comment on state ballot measures but do not have the support or opposition of such measures as their central major purpose.

2. Whether Colorado's disclosure requirements for donors to ballot measure campaigns in which there is no chance of quid pro quo corruption violate the right to engage in anonymous speech and association.
The IJ argues that the Colorado Court of Appeals ruling regarding both items are contrary to the U.S. Supreme Court's precedents. The cert. petition is here, and case background is here. The brief of the Colorado Secretary of State is due October 2.


Hey, Boss, You're Just Like My Teenage Kids:

From the Wall Street Journal Environmental Capital blog:

Speaking on the sidelines of a smart grid conference in Washington, [Secretary of Energy Steven] Chu said he didn’t think average folks had the know-how or will to to change their behavior enough to reduce greenhouse-gas emissions.

“The American public ... just like your teenage kids, aren’t acting in a way that they should act,” Dr. Chu said. “The American public has to really understand in their core how important this issue is.”

It may well be that your bosses act like teenage kids, but if you say it, chances are that you've forgotten that they are your bosses. Possibly indirectly relevant line (for "I," read the teenage kids), from one of my favorite short stories, Rudyard Kipling's The Elephant's Child: "Pooh. I don't think you peoples know anything about spanking; but I do, and I'll show you."

Thanks to InstaPundit for the pointer.


Moosical, the Musical:

So I thought I'd pass this along, seeing how today is "One Web Day" . . . one of the interesting things about writing a book is that readers do all sorts of interesting things with it. I posted, a while back, Ken Liu's lovely "moose" characters that he was inspired to put together after reading my "Jefferson's Moose" book, as well as Larry Lessig's wild copyright-is-the-moose video.

Now along comes Mario Tosto's "Moosical for the Web" -- a pretty remarkable collection of songs (which I had nothing to do with, but rather like) putting the story of Jefferson's Moose and the Internet into - well, into a "moosical." Worth a listen - and do note the invitation at the end to contribute a song or two to the mix!


Corporations, Personhood, Metaphors, and Legal Fictions:

One follow-up thought about corporations and constitutional rights; I argue that corporations should generally possess free speech rights and various other constitutional rights, but not because corporations are "persons" and therefore should have the right that persons have. The corporation-as-person is a valuable legal fiction, and it's built on the same sort of metaphor we often use with regard to groups (e.g., "the Catholic Church teaches," "the ACLU argues," and the like). But we shouldn't fall into the trap of actually believing that our legal fictions and our metaphors are real.

Thus, I argue that corporations should generally have First Amendment rights, Takings Clause rights, and the like because those protections protect the rights of individuals. If you take a corporation's property without compensation, you're taking its owners' property. If you ban corporations from speaking about the corporate income tax, you're interfering with the rights of corporate owners and managers to speak through the group -- just as a ban on partnerships', nonprofit ideological associations', and churches' speech interferes with the rights of people who speak through those groups.

But it doesn't follow that the Cruel and Unusual Punishment Clause has any meaning as to corporations, which I don't think can be punished in a way that we would see as "cruel" (unless someone persuades me that the Unusual Punishments component has some meaning as to corporations). Neither does it follow that the Self-Incrimination Clause has any direct meaning as to corporations, which can't actually be witnesses. Likewise, it doesn't follow that we should have the same heightened constitutional protections for actions aimed at dissolving corporations as we do in death penalty cases, on the grounds that the action is a "death penalty" to the corporation; that too would be excessive reliance on a metaphor that isn't helpful here (corporate dissolution as actual death). Similarly, restrictions on corporate ownership of firearms should be constitutional or not depending on your views about whether the individual right to bear arms includes the right to associate with others in certain ways to do so -- they shouldn't turn on the neat but unsound syllogism that a corporation is a person, persons have the right to bear arms, and corporations therefore have the right to bear arms.


Opinions All the Way Down? Orin, earlier I think you and Professor Jost were reducing the Constitution itself to the Supreme Court's opinions about its meaning--or even reducing it to the Supreme Court's rulings in a given case regardless of whether the Court is even claiming to be interpreting the Constitution rather than interpreting its own prior decisions. Now I think you may be reducing the Constitution to any opinions about its meaning (or vice versa).

In these posts, I never claimed that my opinion about the meaning of the Constitution was itself the "real Constitution." I merely denied that the Supreme Court's various opinions about the meaning of the Constitution--or predictions of its future rulings--are the real Constitution. I was responding to the "rhetorical move" that anyone who asserts the Tenth Amendment on a constitutional question is a "Tenther" because the Supreme Court is likely to reject such a claim, and that all constitutional objections to a Congressional mandate to purchase private health insurance are refuted by invoking "the Constitution the Court now recognizes." Both these rhetorical moves were made before I posted a word in response.

The issue here is not your, my or Pam Karlan's opinion about the meaning of the Constitution. The question is what is the proper subject of any such opinions? I claim opinions about "constitutionality" should be opinions about the meaning of the written Constitution, which I called the real Constitution. These opinions will differ.

True, this is a normative claim about constitutional discourse--discussions about constitutionality ought to be discussions about the Constitution, not predictions of future Supreme Court opinions--but it is not a normative claim about the meaning of the Constitution itself--that is, a claim about what the Constitution ought to mean.

I am still not sure on what you think opinions about "constitutionality" should rest, except perhaps on predictions on what the Supreme Court will do in the future. Maybe these questions will illustrate how this in not a mere semantic or rhetorical move: In a case of first impression--arguably like Heller--how would you make a constitutional argument based on your prediction of the votes of five justices? What should we have argued in Raich? Should the SG have based his constitutional argument on your predictive assumption about the votes of five justices in cases in which "federalism matters"?

Frankly, I am having a hard time operationalizing your conception of constitutionality based on what you predict the Court will do in a particular case.

The Second Amendment in the Living Constitution

That's the topic of a recent article I wrote for America's 1st Freedom, one of the NRA magazines. I argue that if "living Constitution" means "shared and evolving beliefs about rights and powers" rather than "the whim of the particular judge," then the argument for a robust Second Amendment under living constitutionalism is very strong.


What's Missing from This New York Times Editorial?

Here's an excerpt, though read the whole thing:

The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited -- far less than those of people....

The Constitution mentions the rights of the people frequently but does not cite corporations. Indeed, many of the founders were skeptical of corporate influence.

John Marshall, the nation’s greatest chief justice, saw a corporation as “an artificial being, invisible, intangible,” he wrote in 1819. “Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.”

That does not mean that corporations should have no rights. It is in society’s interest that they are allowed to speak about their products and policies and that they are able to go to court when another company steals their patents. It makes sense that they can be sued, as a person would be, when they pollute or violate labor laws.

The law also gives corporations special legal status: limited liability, special rules for the accumulation of assets and the ability to live forever. These rules put corporations in a privileged position in producing profits and aggregating wealth. Their influence would be overwhelming with the full array of rights that people have.

One of the main areas where corporations’ rights have long been limited is politics.... The founders of this nation knew just what they were doing when they drew a line between legally created economic entities and living, breathing human beings. The court should stick to that line.

I discussed the substantive matter below, but for now let me ask a different question: Where would the arguments in the New York Times editorial leave the New York Times itself? Shouldn't New York Times v. Sullivan (the landmark libel case) and New York Times v. United States (the Pentagon Papers case), for instance, have come out the opposite way under the Times' analysis? The corporation that owns the Times, like all corporations, has "limited liability, special rules for the accumulation of assets and the ability to live forever [in theory]." It is "in a privileged position in producing profits and aggregating wealth." It surely has tremendous "influence." It tries to participate in "politics," in its editorials and also, inevitably (whether intentionally or not) in its news coverage and choices of what to cover. It is a "legally created economic entit[y]."

Now maybe the Times is implicitly suggesting that it's excluded from the analysis because of the proviso that it "is in society’s interest that they are allowed to speak about their products and policies." But the ads in New York Times v. Sullivan and the publication of the Pentagon Papers wasn't speech about its products and policies. The speech was its product, in the sense that it was produced by the Times in part -- not clear whether this was so in the ad in Sullivan but perhaps one might say so -- and it was something that the Times sold.

But a political ad put out by a business corporation is also produced by the corporation; and though it isn't something that the corporation sells, why should that affect the corporation's rights? I agree that speech that one sells shouldn't be less constitutionally protected because it's sold rather than given away for free; but surely speech that a corporation gives away for free likewise shouldn't be less constitutionally protected than speech that is some other corporation's "product." Perhaps the Times is hinting at a distinction by quoting the "incidental to its very existence" language from Chief Justice Marshall, but it's hardly "incidental to [a newspaper's] very existence" for the newspaper to be able to publish political editorials, or endorse candidates. A newspaper certainly could exist without that power.

Of course, one could say that the Free Press Clause protects newspapers but not other companies. But the Times editorial doesn't say that; and it's not clear why we should read the Free Press Clause as privileging a particular form of business, as opposed to a particular medium -- the press, which could be used both by its owners to publish newspapers (with political editorials in them), and by other people and companies to publish leaflets, books, political statements in others' newspapers, or (with technological changes) political Web sites, made-for-TV opinionated political documentaries, and the like.

But in any event, my point here isn't so much the substantive point -- it's that a business corporation is publishing a political message arguing that business corporations shouldn't have the constitutional right to publish political messages, without even (1) mentioning that its argument would apply to itself, and (2) explaining why, despite that, the argument should not apply to itself. (It's clear, after all, from its past statements and arguments in court that the Times does take the view that it indeed should continue to have constitutional rights.)

Related Posts (on one page):

  1. What's Missing from This New York Times Editorial?
  2. Constitutional Rights and Corporations:

Constitutional Rights and Corporations:

Since the topic is in the news again, I thought I'd briefly repost — in a slightly modified form — this item that I blogged several years ago.

A reader asked me to elaborate on my comment about corporations having rights; here are some general observations of mine on the subject. Note that the following speaks only of corporate constitutional rights — naturally, corporations have many rights protected by common-law and statute as well — and in particular of the rights in the Bill of Rights and the body of the Constitution. (The rights do not include the right to vote, which is not expressly in the Bill of Rights or in the Constitution.)

1. Consequences. The New York Times is owned by a corporation. Most private universities are organized as corporations. So are most nonprofit advocacy groups. So are many religious groups (though I believe some are organized through some special quasi-corporate forms). If you really believe that corporations lack constitutional rights, then the government would be free to ban corporate-run newspapers from criticizing the government, or ban the Catholic Church or the ACLU or the NRA from expressing its views.

Likewise, if corporations lack constitutional rights, the government could take their property without just compensation, and in fact without any hearing. It could just come in and grab it, no questions asked.

Now some people might think this is the right result. Or perhaps if this happened, people would stop using the corporate form — newspapers, advocacy groups, and churches would somehow reorganize themselves as, say, partnerships or sole proprietorships. This might actually be hard, and from the perspective of people who disapprove of corporate rights, it might be counterproductive; what's the point of letting the Times have constitutional rights if it's run as a partnership but not if it's run as a corporation? But for now, my point is simply that we should clearly identify the consequences of denying constitutional rights to corporations — and those consequences hardly seem sensible.

2. Individual rights. One reason these results may seem senseless is that restricting the rights of corporations usually means restricting the rights of individuals. If you take the property of a corporation without compensation, whom are you really hurting? Not "the corporation," which is, indeed, a convenient legal fiction. You're hurting the corporation's owners.

If you accept the legal fiction of the corporation being a separate person, then taking its property violates its rights. But if you reject that fiction, as a means of arguing that the corporation should lack rights, then taking its property violates its owners' rights. Either way, the Takings Clause should apply; and that's what suggests that the legal fiction (a corporation is a person) is a sensible one here — using it makes analysis easier, but doesn't ultimately change the results much.

The same goes for the Due Process Clause, the Civil Jury Trial Clause, and so on. If you take a corporation's property, or let it be taken through certain procedures, you're affecting the property of individual owners. There's therefore no real reason to deny these rights to the corporation.

Likewise for free speech. Corporations don't actually speak; people speak. A corporation's employee (a person) communications information that is decided on by a group of managers (people) who represent the stockholders (other people). Barring the New York Times or the ACLU or the Catholic Church or General Motors from speaking bars real people from speaking using the corporation's property.

Aha, some might say, the real people aren't silenced — they can still speak using their own property. But the Court has long understood that to speak effectively in a vast nation, you need to be able to pool your resources with others (even in this cyberspace age).

The Court has recognized this under the rubric of the right to expressive association, but the same applies to speech via corporations. When people contribute money to the ACLU, so that the ACLU's directors can decide what ACLU's spokespeople say, the contributors are making a decision to pool their resources so that some decisionmakers (the directors) can decide how to use them to speak. And the same goes for GM shareholders — they are pooling their resources and giving them to some decisionmakers (GM managers) so they can decide how to spend the resources, including spending them for speech, whether advertising or political advocacy.

Related Posts (on one page):

  1. What's Missing from This New York Times Editorial?
  2. Constitutional Rights and Corporations:

The Constitution and the Golden Calf - A Response to Randy: Based on his comment below, I worry that Randy might misunderstand my view on his exchange with Professor Jost. In light of that, I wanted to explain my position a bit more clearly.

  I really don't care whether we label what the Supreme Court says as what the Constitution "is," or whether we use that label for what Randy Barnett thinks, or what Pam Karlan or anyone else thinks. My first post noted the common convention of referring to what the Supreme Court has said as what the Constitution "is," but that is just a convention: I pointed it out only to avoid the confusion that results when we mix conventions without saying so. I am just as happy if we call the Constitution as described by the courts as "Larry," the Constitution as construed by Randy as "Moe," and the Constitution as construed by Pam Karlan as "Curly." They are just labels, and my primary interest is in avoiding confusion among them.

  Of course, Randy is welcome to use his label, in which his vision of the Constitution is "the real Constitution," while the Constitution that others believe in are false idols. I envision Randy coming down from Mt. Sinai with a copy of Restoring the Lost Constitution, as the Israelites look up from their worship of the golden calf of the United States Reports. My point is only that the choice of label is a rhetorical move, not a jurisprudential one. I recognize it is an important rhetorical move: the believers-in-the-true-God-versus-the-heathens meme has worked for millenia, and I gather from what Randy says that it is a key part of trying to popularize his view of how the Constitution should be construed. But I think it's important to recognize the rhetorical move.

  Why is it important? I think it's important because so many people have such different visions of what the true Constitution really is. By and large, those visions tend to match the ideologies of their holders: libertarians envision a libertarian Constitution, progressives a progressive Constitution, conservatives a conservative Constitution. Each group, in good faith, sees its vision as the true Constitution. Given the wide range of views, I think it's confusing to use labels like "the real Constitution" in a way that avoids recognizing the good faith disagreement about what that real Constitution means.

"Constitutionality" and the Real Constitution: I agree with the predictions of my fellow conspirators: When deciding whether a Congressional mandate to buy private insurance is "constitutional," the Supreme Court will likely ignore the Constitution. And since this mandate is unprecedented, their actions won't be dictated by their precedents either, even if they were inclined to follow their precedents when they don't want to, which they aren't. But all this evades my original disagreement with Professor Jost that Orin though was resolved by his is-ought distinction between "what the Constitution is" and "what the Constitution ought to be."

Professor Jost wrote two things that got my attention. Thing #1 was his reference to those who cite the Tenth Amendment as "Tenthers." In response, I cited the first sentence of Article I, and the Necessary and Proper Clause as reiterating the view that Congress only has the powers "herein granted" or "vested by this Constitution in the government of the United States, or in any department or officer thereof." So Supreme Court doctrine that, in effect, finds no limit to Congressional power must disregard not one, not two, but three explicit passages of what many Americans still naively believe to be "the Constitution."

Thing #2 was the following statement: "a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform." In this passage, Professor Jost articulates the view of most con law professors--including Orin apparently--that "the Constitution" is what "the Court now recognizes" so the answer to the question of "constitutionality" is to engage in predicting how the Court will rule.

I reject the proposition that "the Constitution" is whatever the Court says it is or, more accurately for present purposes, how the Court may rule in some future case. I insist that "the Constitution" is the wording of the document under glass in DC. So whether something is "constitutional" depends on what "the Constitution"--the real one--says. (Of course, because the written constitution does not answer all questions to which we need answers, constitutional construction is needed to supplement constitutional interpretation. But such construction may not contradict what the Constitution--the real one--says or that construction is itself unconstitutional.)

Whatever basis Orin, Ilya, David or I have for our predictions of future Supreme Court decisions, there is one thing on which none of us rely: the Constitution, the real one. Not the Constitution as it "ought to be" but the Constitution--or "this Constitution"--the enacted one, the one that thousands of Americans visit each year.

In support of his reasonable prediction, Orin offers the following equally reasonable proposition: "If there is a federalism issue that doesn’t have a lot of practical importance, there’s a decent chance five votes exist for the pro-federalism side. . . . As soon as the issue takes on practical importance, however, the votes generally aren’t there." But what type of proposition is this? Is it "the Constitution"? Is it even "constitutional law"? If it is neither, then I do not see how it is responsive to the question of whether a mandate to buy private insurance in constitutional, unless one redefines "constitutional" to mean "whatever the Court can be predicted to rule." THIS is what Orin calls a "semantic" issue, which it is, but it is not merely semantic. It is also substantive and very important issue to boot.

If "the Constitution is what the Court says it is," why did Justice Sotomayor repeatedly insist she would follow the law, and that following the law was all a judge should do? Did she secretly mean "I will follow the law, which is exactly the same as how I may want to rule for political and policy reasons"? OK, she did secretly mean that, but why keep it a secret?

Could it be that, had she admitted what Professor Jost, and apparently Orin, thinks is obviously true about "constitutionality," SHE WOULD NOT HAVE BEEN CONFIRMED AS A JUSTICE? I think that is a pretty safe prediction. Indeed, I predict that she and the White House actually made this very prediction, which explains her repudiation of everything constitutional law professors believe about "constitutionality."

Why would this prediction have been so safe--even safer than Orin's, Ilya's, David's, and my prediction about a future Supreme Court ruling about a health insurance mandate? Maybe because, unlike law professors, the American people still believe that "the Constitution" is the words on that piece of parchment, and that "constitutionality" depends on what those words say. True, many Americans do not know what it says, but that does not changed the brute social fact of what the Constitution still IS. Hence Justice Sotomayor's testimony that she will follow the words.

So here is my question: if Orin and Jost are right, why not come out and testify to that position under oath: That "constitutionality" is what the Supreme Court says it is unconnected from what the Constitution actually says? And until that happens, maybe the Constitution still IS the words on the parchment under glass that most Americans believe it to be. And if this is true, then does not "constitutionality" depend on what those words say--including the Tenth Amendment--regardless of how the Supreme Court can be predicted to rule, and regardless of whether the Supreme Court follows the words of the Constitution--the real one.

Let me close by repeating something else I posted on the Politico that lies at the very heart of this debate:
if the Supreme Court adopts a "presumption of constitutionality" by which it defers to the Congress's judgment of the constitutionality of its actions--as it has and as "judicial conservatives" urge--and the Congress adopts Professor Jost's view that "unconstitutionality" means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution. A pretty neat trick--and a pretty accurate description of today's constitutional law.
This point is so important that I should repeat it. When it comes to the enumerated powers of Congress, the Supreme Court should defer to Congress's assessment of constitutionality (because of judicial restraint); and Congress should defer to the Supreme Court's assessment of constitutionality (because "the Supreme Court is the ultimate authority on the Constitution"). So NO ONE SHOULD ACTUALLY INTERPRET THE CONSTITUTION! This is current American constitutional "law" in a nutshell.

I kid you not.

[PS: Any academic reader who reads the above as claiming that the "real" Constitution is the written one because it says it is "the Constitution" should reread the portion about Justice Sotomayor's confirmation testimony.]

Grizzlies "Threatened" Again:

A federal district court judge overturned the U.S. Fish & Wildlife Service's decision to remove Grizzly bears in the Greater Yellowstone area from the endangered species list. From the LA Times:

In a strongly worded order, U.S. District Judge Donald W. Molloy said that the U.S. Fish and Wildlife Service's conclusion that the bears would find adequate food and protected habitat in Wyoming, Montana and Idaho was not supported by the government's own science, and that protections put into place for the grizzlies were not enforceable.

The ruling largely supported conservationists' assertion that the predators faced devastating losses to one of their most important food sources as a result of climate change. It ordered the government to put the bears back under the protection of the Endangered Species Act until long-term strategies to assure their survival were in place.

"Much of the science [cited by the government] directly contradicts the service's conclusions," the judge wrote in his 46-page decision. "Where the agency's conclusions contradict the science, the conclusions are not reasonable, and the court need not defer to the agency's decision."

Prior to the Bush Administration's effort to delist this population, the Grizzlies had been listed as "threatened" under the Endangered Species Act.

UPDATE: I've posted a copy of the order here.

SECOND UPDATE: Holly Doremus has more on Legal Planet:

It’s understandable that FWS and others who are deeply invested in conservation efforts want to celebrate their successes by delisting species which show population recoveries. But this decision should serve as a reminder that population increases by themselves don’t establish that delisting is appropriate. Delisting should happen only when the species’ future is secure, which means that the agency has taken a hard look at its future and verified that looming threats are adequately controlled. At that point, and only at that point, delisting can be cause for celebration rather than for litigation.


Monday, September 21, 2009

The Supreme Court, the Election Returns, and Mandatory Health Insurance:

David Bernstein's recent post raises the issue of how the political situation might affect the Supreme Court's consideration of a case challenging the constitutionality of the Obama health care bill (should it be passed). I tend to agree with David that the Court is unlikely to invalidate any important parts of such a bill so long as the Democrats retain control of both the presidency and Congress.

Some argue that the Court simply "follows the election returns" and only invalidates legislation that the voters dislike or at least don't care about. That is clearly an overstatement. The Court has sometimes invalidated popular laws or practices. Think of the school prayer decisions and the flag burning cases, in both of which areas the Court repeatedly issued rulings that the vast majority of voters disliked. The Court also sometimes upholds very unpopular laws against constitutional challenge, as in Kelo v. City of New London. However, it is extremely rare for the Court to strike down a law that enjoys strong majority support from both the general public and the political elite, and is a major item on the current political agenda. Doing that is likely to create a head-on confrontation between the Court and the political branches of government, which the Court will almost certainly lose, as happened when the Court struck down various New Deal laws in the 1930s.

When the Court has invalidated popular laws, it has usually been in fields where political elites actually agree with the Court (as with flag-burning) and can thus insulate it from political backlash, or ones where the issue is not really a high priority for most voter. School prayer and flag burning both fall in that category, as also did the popular laws invalidated by the Supremes in such Rehnquist-era cases as United States v. Lopez (the Gun Free School Zones Act, which polls showed to be popular) and United States v. Morrison (a part of the Violence Against Women Act, a case in which 36 states filed amicus briefs supporting the government).

By contrast, health care is currently both a major concern of voters and a top priority for political elites in the Democratic Party. If the Democrats succeed in passing Obama care and then retain their congressional majorities, the Court will be on notice that invalidating any major part of the health care bill invites a massive confrontation with Congress and the president. The most ideologically committed justices (e.g. - Thomas) might be willing to take the risk. But the moderates won't. They know that Congress and the president could react with harsh measures such as refusing to obey the decision, implementing an updated version of FDR's court-packing plan (the threat of which helped persuade the Court to back down in 1937), or passing laws limiting the Court's jurisdiction. Such extreme measures are rarely used; but they could be employed if the Court crosses Congress, the president, and the voters on a major issue they care about intensely.

This, of course, assumes that a majority of the justices would want to strike down the Obama health insurance mandate if they thought they could get away with it, an assumption I questioned in my last post. But even if the justices were more interested in constraining congressional authority than I think they are, I doubt they would be willing to take the political risk of doing so in this case.

I am a strong advocate of judicial review of federalism issues, and I hope that the Court will, over time, roll back Commerce Clause precedents that give Congress virtually unlimited power. But achieving that goal will be a slow, incremental process that must take due account of political constraints. It is unrealistic to expect the Court to start the process with a decision that risks a head-on collision with the political branches over a major policy issue.


Clunk Confirmed:

A new paper in The Economists' Voice concludes that the costs of the "cash for clunkers" program exceed the benefits by approximately $2000 per vehicle. Meanwhile, September auto sales are plummeting, leading to estimates the monthly total will be the lowest in nearly three decades.


Politicizing the NEA:

I suppose this should not be a surprise. If the federal government funds art and other expressive endeavors, politicization is sure to follow.

UPDATE: More, including corrective actions being taken by the Administration, here.


Connecticut v. AEP -- Missing No Longer:

Over the summer I pondered the fate of Connecticut v. American Electric Power, a case argued before the Second Circuit in June 2006. The case, a suit filed by several states against several utilities alleging their emissions of carbon dioxide contributed to the "public nuisance" of global warming, was of particular interest because one of the judges on the case was then-Circuit Judge Sonia Sotomayor.

Today, some three years and three months later, an opinion has finally issued, and it's a whopper. The 139-page opinion, in which Judge Sotomayor did not participate, reverses the district court's dismissal of the case and allows the states' suit to proceed. The opinion begins:

In 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively “Plaintiffs”), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively “Defendants”), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a “clear scientific consensus” that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to cap and then reduce their carbon dioxide emissions. Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints. See id.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of federal common law. In addition, Defendant Tennessee Valley Authority (“TVA”) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings.

I've a few other things to attend to, so a more complete analysis will have to wait, but here's a quick take. First, the court's failure to affirm the district court is not too surprising, as the political quesiton argument was always a bit of a stretch. It's also no surprise that, post-Massachusetts v. EPA, the court found that the states had standing. Indeed, the case for parens patriae standing is actually stronger here than in Massachusetts. What is surprising to me, however, is the court's decision is that the federal common law claims are not preempted. Prior to Massachusetts v. EPA this would have been a reasonable conclusion. After the Supreme Court's conclusion that greenhouse gases are pollutants under the Clean Air Act — and are thus subject to extensive federal regulation — preemption of the federal claims would seem to follow under Milwaukee v. Illinois (though the state common law claims could still proceed). I'll be curious to see how the court justified this surprising result.

UPDATE: The New York Law Journal reports here.


Government Instructing Private Corporation To Stop Expressing Certain Opinions About Health Care Reform?

Here's a letter from the Department of Health & Human Services Centers for Medicare & Medicaid Services (CMS) to Humana, Inc., a leading health insurance company; the letter is apparently demanding that Humana stop sending this mailing.

Dear Ms. Miller/Ms Kelly:

CMS has learned that Humana has been contacting enrollees in one or more of its plans and alleging that current health care reform legislation affecting Medicare could hurt “millions of seniors and disabled individuals [who] could lose many of the important benefits and services [emphasis in original document] that make Medicare advantage health plans so valuable.” The message, which is included in an envelope that states it contains “important information about your Medicare Advantage plan—open today!,” makes several other claims about the legislation and how it will be detrimental to enrollees, ultimately urging enrollees to contact their congressional representatives to protest the actions referenced in the letter (see attachment).

CMS is concerned that, among other things, this information is misleading and confusing to beneficiaries, represents information to beneficiaries as official communications about the Medicare Advantage program, and is potentially contrary to federal regulations and guidance for the MA and Part D programs and other federal law, including HIPAA. As we continue our research into this issue, we are instructing you to end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website.

Please be advised that we take this matter very seriously and, based upon the findings of our investigation, will pursue compliance and enforcement actions....

As best I can tell, the statements in the Humana mailer contained constitutionally protected opinion. Whether it's "misleading and confusing" naturally depends on how you interpret the mailer, and the various health care proposals. But precisely because the terms are so mushy, political advocacy (as opposed to commercial advertising) can't be restricted simply on the grounds that it's "misleading and confusing." Even knowingly false statements of fact about the government are generally constitutionally protected; it's possible that knowingly false statements of fact about particular legal proposals are not protected, but I've never seen any cases that extend such a false-statements-of-fact First Amendment exception to statements that are merely "misleading and confusing." (I suspect also that if HHS had the goods on why the statements were supposedly outright false, it would have said so.)

It's possible that the claim about the envelope's supposedly "represent[ing] information to beneficiaries as official communications about the Medicare Advantage program" is an allegation of outright knowing falsehood. I couldn't find a copy of the envelope that the HHS letter complains about; if you can point me to it, I'd be much obliged. But the HHS letter complains about the content of the mailing as well as the envelope, and the "instruct[ion]" "to end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website" seems to cover the content and not just the envelope.

There's also a separate question about whether "instruct[ing]" a private company to stop certain speech, before any adjudication that the speech is unprotected, is a prior restraint. Presumably threats to prosecute or sue based on assertedly unprotected speech are generally permissible, if the speech is indeed unprotected, but an overt order — which is how the letter is framed — is generally not. But that to me is something of a tangent; I don't see any basis for how the contents of the letter can even be subject to subsequent punishment, much less a prior restraint.

Thanks to InstaPundit for the pointer.

Related Posts (on one page):

  1. The Humana Controversy and Government Funding:
  2. Government Instructing Private Corporation To Stop Expressing Certain Opinions About Health Care Reform?

Memo to Police: Your Power To Coercively Stop People Shouldn't Be Used for Tourism Gimmicks:

The Chicago Tribune [UPDATE: link fixed] reports:

Last week [Kalona, Iowa's] Chamber of Commerce and Washington County sheriff pulled over people with out-of-state license plates and offered them an all-expense paid visit ... to the town of 2,300, about 20 miles southwest of Iowa City....

[L]ast Thursday chamber member Larry Moeller and Sheriff Jerry Dunbar set out to find a tourist to "arrest."

"We'll go up to the car and ask them if they have about 20 hours to spend with us here in Kalona," Moeller said.

Armed with binoculars and flashing red lights, the pair began looking for an unsuspecting passer-by....

It didn't take long before [one couple] were persuaded to take the detour into Kalona, where they were given a basket full of goodies from local businesses, toured the local attractions and met the town's mayor.

They also were treated to dinner and even a night's stay.

"It's interesting, it's fun. He probably pulled over the right people. We didn't really have an agenda," said Cheri Cunningham. "Everybody's been so nice, so friendly, and the little downtown area here is darling."

Well, I'm pleased that the Cunninghams aren't personally upset by this. But it seems like an abuse of power, and a Fourth Amendment violation. As I wrote about a similar program, a police officer's flashing red lights at a driver, which causes the driver to support, constitutes a seizure — a situation "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Under the Fourth Amendment, such seizures must be reasonable, which generally means (for brief seizures) either that there's reasonable suspicion that the seized person has committed a crime (including a traffic infraction), or that there's some administrative need mandating a particular non-law-enforcement search or seizure system (such as airport screening). Neither is present here — the desire to promote tourism is surely not enough of an "administrative need" to justify seizures — so the stop violates the Fourth Amendment.

More broadly, a police officer is giving you a fright, taking up your time, and likely slowing down other drivers (who are concerned about safety, or who are stuck behind other drivers who are gawking). As importantly, the police officer is exercising his coercive authority over you. That he's doing it for a good motive doesn't change the fact that for the few moments that you're being pulled over, your liberty is being restrained, however briefly. Some such restraints on liberty have to be tolerated, but it seems to me that for each there should be a very good reason. An invitation to stay in town, even combined with free goodies does not, I think, qualify as a very good reason.

For yet another similar story from five years ago, see here. Thanks for the pointer to PopeHat, which has more thoughts on the case.


Student Group Suspended, Faculty Advisor Removed Because Faculty Advisor Expressed Willingness To Defend Himself:

This strikes me as quite a bad reaction on UNC's part, assuming the facts in the News & Observer story are correct:

UNC Chancellor Holden Thorp shut down a campus anti-immigration group Friday after an anonymous flier targeted its faculty adviser, who then joked about his skills with a Colt .45.

Activists put out the flier at UNC-Chapel Hill this week revealing the home address of Youth for Western Civilization faculty adviser Elliot Cramer. Protests at speeches sponsored by the group led to seven arrests and a broken classroom window last spring.

On Thursday night, chapter President Nikhil Patel warned Cramer by e-mail that the flier included his name, photograph, home address and telephone number with the caption, "Why is your professor supporting white supremacy?" It encouraged students, faculty and community members to urge Cramer to withdraw from organization.

"I thought I'd let you know so that you can plan for some sort of protection," wrote Patel, an Indian-American who denies the group is white-supremacist. "It seems like an indirect threat to your safety."

"Thanks for your concern," Cramer replied just after midnight, copying Thorp. "I have a Colt .45, and I know how to use it. I used to be able to hit a quarter at 50 feet seven times out of ten."

By Friday afternoon, Thorp asked Cramer to step down as the group's adviser.

"This email is highly inappropriate," Thorp wrote to Cramer. "It is certainly not consistent with the civil discourse we are trying to promote."

Thorp said Youth for Western Civilization is out of business until it can replace Cramer.

"We're trying to come up with a way to have civil discourse and for different points of view to be shared," Thorp said in an interview Friday. "Somebody who's the faculty adviser has to show some restraint."

Cramer said that the flier didn't feel like a real threat and that his response to Patel was "off-hand" and "light-hearted." He complied with Thorp's request to resign.

"I'm sorry that I placed [the chancellor] in an awkward position," said Cramer, who retired from the psychology department 15 years ago....

In April, Students for a Democratic Society and other protesters had shut down a speech by the group's founder, Tom Tancredo, a former Colorado congressman, calling his group racist and white-supremacist.

This week, Thorp, who apologized to Tancredo personally in April, offered up to $3,000 for the group to invite another speaker to campus. Youth for Western Civilization had been planning to sponsor a speech in October by former conservative commentator Bay Buchanan in a reprise of her appearance in March....

Now it may well be that publishing a person's home address is protected speech; I have so argued, and some courts agree, though there's controversy about that. But surely publishing a group advisor's home address -- against a backdrop of criminal thuggery (albeit short of deadly violence) aimed at that group -- is indeed potentially threatening. It seems to me that a professor, no less than anyone else, is entitled to respond by expressing a willingness to defend himself. (Things might be different if there were a statement or implication that he'd defend himself illegally, e.g., "if anyone shows up outside my house, I'll shoot them dead," but I think such an e-mail by a responsible person would normally be seen as an implicit assertion that he'd defend himself legally if seriously threatened.)

Nor is there anything uncivil about responding to the publication of a home address -- not a reasoned argument about why one is mistaken, but a statement that can reasonably be understood as a threat of personal attack -- with such a statement. And even if there were, I would think that a faculty member shouldn't be removed by an administration even from a post as advisor to a student group simply because of a perceived lack of "civility," at least on this level.

On top of this, leaving the group unable to function because of the faculty member's alleged incivility -- an incivility prompted by thuggishness that apparently came from the group's enemies -- seems even more unsound. If the university were really committed to preserving debate, it would make sure that the group could continue to function, rather than giving the thugs a victory. And this is especially so since the anonymous flyer will likely further reduce faculty members' willingness to act as advisers, even if they want to make sure that the group has an opportunity to exist as a recognized group on campus.

More from the Daily Tarheel here and here. Thanks to Chad Stoop for the pointer.

(Note: The story does say, "Patel, a senior biology major, thinks Youth for Western Civilization has 30 days to remain active while seeking another adviser, and he thinks the group will find one," but the story reports that the group is suspended for now.)


The Supreme Court "Cert Pool" Criticized: Tony Mauro has coverage of a recent panel on the cert pool in which Mauro reports that several very prominent practitioners criticized the Supreme Court's existing "cert pool" on the ground that the Justices defer too much to the law clerk's recommendation.

  I didn't see the panel, so I can only comment on Mauro's summary. But to the extent the argument is that a law clerk's ultimate recommendations on whether to take or deny a case has a significant influence on what the Justices do, I tend to disagree. Pool memos play a tremendously important role in explaining whether a case is important, if an alleged split is real, and the like. At the same time, I tend to doubt the Justices pay a lot of attention to the ultimate recommendation of a law clerk on whether to take a case. It's true that David Stras found a correlation, but I suspect the causal arrow is in the other direction: There is a connection between law clerk recommendations and what the Justices do because the law clerk recommendations are designed to try to predict what the Justices will do. That's my sense, at least.

  As for why the number of cases the Court takes has dropped, I think changes in personnnel explains a lot. Two decades ago, a few of the Justices had much less strict standards for what cases to take. In particular, I understand that Justices White and Blackmun thought the Court should take a lot more cases, and they often voted to grant cert. When these Justices retired, the number of cases the Court took dropped.

  UPDATE: I have expanded the post a bit to clarify it, partially in response to Roy Englert's comment.

Buddhists and Moslems arm against terrorists:

StrategyPage, which is always one of the best websites for information on military activities around the world, reports on the terrorist war going in southern Thailand:

The Moslem south is turning into the Wild West. There are more guns per capita among the two million southerners, than anywhere else in the country. The 20 percent of the southerners who are not Moslem are particularly well armed, with shotguns, rifles, pistols and even some automatic weapons. Most of the guns carried by non-Moslems are legal, for defense against Islamic terrorists. But many Moslems have legal weapons as well, also for defense against Islamic radicals (who are increasingly violent against Moslems they deem disloyal.) The police are slowly winning, as they have done in the past. But Islamic radicalism is popular among many of the young men, so the violence will continue for a while, despite the opposition of most Thai Moslems. Thus violence has been increasing in the south, with 27 bombings and eight arson attacks in the past month. In that period, there were a hundred terrorist attacks, which left 51 dead and 83 wounded.


Small Contribution to the Debate Over the Constituitonality of Mandatory Health Insurance:

My small contribution is that the Supreme Court would be much more likely to invalidate elements of Obamacare on which there is no firm, direct precedent if the Republicans sweep the 2010 midterm elections than if they don't. In my view, it's no coincidence that Lopez, the first case to invalidate the a federal law on commerce grounds since the 1930s, came after the Republican sweep in 1994, and no coincidence that Raich backtracked on federalism at a time when neither the incumbent Republicans nor certainly the Democrats were spending any political capital on either limited government in general or federalism specifically, and indeed, when these issues seemed passe. The Supreme Court, institutionally, does not like to be exposed on controversial issues without any support from the political branches. The most ideological Justices (e.g., Thomas) may not care, but the swing voters do. So one thing I think we can be pretty sure of: if the Democrats still control the House and Senate in 2011, any constitutional challenge to health care reform will go nowhere.

UPDATE: Oh, and by the way, I wrote something for Cato in 1992 suggesting that there might be five votes on the Court to revive the Commmerce Clause to some degree ("given the changes in the ideological composition of the Court since 1981, Rehnquist might one day find himself leading a Court whose opinions take the requirements of the commerce clause seriously, with potentially salutary results"). At the time, in mainstream con law circles the notion that the Commerce Clause had, or would soon have, any bite at all was considered absurd, about as likely as the Supreme Court declaring Texas to be an independent republic. Ya never know.


Really: In his post below, my co-blogger Randy channels Seth Myers and asks if those who follow the Supreme Court closely think that the Court would actually uphold hypothetical legislation requiring a person to have health care coverage:
[I]n the absence of any clear super precedent, are my more realist colleagues absolutely confident that the four more "conservative" justices--and maybe even Justice Kennedy who cares something about liberty when it does not involve drugs--won't see some "principled" difference between a federal prohibition against growing something both fungible and intoxicating and a universal federal mandate to buy a service from a private company? Really? Really??
   I can't speak or everyone, of course, but I am personally confident that the current Supreme Court would not strike down such legislation. The Supreme Court's federalism decisions in the last 15 years have followed a relatively predictable trend, and such a ruling would be dramatically out of step with that trend. As I wrote over at SCOTUSblog on the day Gonzales v. Raich was handed down in 2005:
I don’t think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it’s been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost.

More broadly, it seems to me that the theme of the Rehnquist Court’s federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn’t have a lot of practical importance, there’s a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.

As soon as the issue takes on practical importance, however, the votes generally aren’t there. If anything, the surprise today was that there were three votes for the pro-federalism side.
  I would think the personnel changes at the Court since I wrote that post would make this more true rather than less.

Middle East News--The Lighter Side:

'Gay' vulture couple split up at Jerusalem zoo, then become fathers

Really? Really?? OK, I totally get the whole IS-OUGHT distinction thing. The Constitution IS what the Supreme Court says it is. The Constitution OUGHT TO BE what the text says. Although a little jurisprudentially sophisticated for my taste, I think I grasp this.

But let me ask what has to be a simple question for my more "realist" compadres. Do they see no difference between using the power over interstate commerce to prohibit the growing of an intoxicating plant and mandating that every man, woman and child buy a service from a private company or face a hefty fine? Not make the purchase of this service a condition of engaging in some activity--like driving--but a condition of breathing itself. Not make you "contribute" to tax you for a universal government social welfare program--like Social Security or Medicare--but buy a service from a private company. What if these companies all happen to be restricted to operating intrastate? Still all the same?

Is there a clear precedent for exercising this kind of power over all individual citizens--hey and noncitizens too!--by virtue of them being alive? No? Well then maybe this case would not be dictated by the "law" of Gonzales v. Raich governing the production of fungible goods that Congress is seeking to ban from interstate commerce. But supposing there is a precedent--which for all I know there is--do my realist friends think the justices always follow their own "law" when they really don't want to? Really?

So what "constitutionality" really comes down to is whether five Justice have the, er, nerve to strike down a popular act of popular Congress a la the Evil Old Lochner Court. Fair enough. But how about a not-so-popular act of a not-so-popular Congress by the time the case reaches the High Court? What if the Repubs take back the Congress by then? Or just the House and knock off the Senate Majority Leader? Do all realist predictions about "constitutionality" remain the same? And if, to assess its constitutionality, we have to calibrate the popularity of the law and/or law maker--count the election returns, as it were, in advance of an election--before making our prediction on what the Constitution "says," does this tell us anything about the constitutional law game in our fair republic?

Of course, the safe money is always on the Supreme Court upholding an act of Congress. ALWAYS. And the even safer money is on the four "liberal" justices upholding ANY exercise of federal power that liberals happen at the moment to favor. OK, "conservatives" too with respect to executive power when their guy is in the White House--or laws that liberals happen to favor at the moment. All our justices are New Dealers; they all repudiate Lochner (or Schechter Poultry).

I realize this is all very legalful and constitutionally and all, with its irrebuttable "presumptions" and hypothetical "rational bases" and myriad whatnot. Let's all crack open our virtual copies of the United States Reports and figure this sucker out. However, in the absence of any clear super precedent, are my more realist colleagues absolutely confident that the four more "conservative" justices--and maybe even Justice Kennedy who cares something about liberty when it does not involve drugs--won't see some "principled" difference between a federal prohibition against growing something both fungible and intoxicating and a universal federal mandate to buy a service from a private company? Really? Really??

"Christian Hotel Owners Hauled Before Court After Defending Their Beliefs in Discussion With Muslim Guest,"

reports the Daily Mail (UK). Note that this sort of thing is hard to evaluate without knowing exactly what was said, and that in turn is hard to do when there are just recollections of what was said in extemporaneous conversation. Nonetheless, the breadth of the law, which covers "abusive or insulting words" generally -- which would potentially include speech that condemns a religion -- and not just threats and personalized insults, is enough to give cause for worry:

A Christian couple have been charged with a criminal offence after taking part in what they regarded as a reasonable discussion about religion with guests at their hotel.

Ben and Sharon Vogelenzang were arrested after a Muslim woman complained to police that she had been offended by their comments.

They have been charged under public order laws with using ‘threatening, abusive or insulting words’ that were ‘religiously aggravated’....

Although the facts are disputed, it is thought that during the conversation the couple were challenged over their Christian beliefs.

It is understood that they suggested that Mohammed, the founder of Islam, was a warlord and that traditional Muslim dress for women was a form of bondage.

They deny, however, that their comments were threatening and argue that they had every right to defend and explain their beliefs....

If anyone can point me to any more specific details on the case, I'd love to see them. Thanks to Victor Steinbok for the pointer.


Conference Where We Get to Sit Around And Talk About Facebook: On October 23, Berkeley Law will be hosting a conference on the legal and ethical implications of social networking sites. I'll be speaking on one of the panels, as will ATL's David Lat and others. The schedule, with descriptions of the panels and the list of speakers, is here.

Sunday, September 20, 2009

More Wright and Zywicki on the Consumer Financial Protection Agency:

In a recent post on proposals for paternalistic regulation intended to correct consumer cognitive errors, I linked to my colleague Josh Wright and co-blogger Todd Zywicki's critique of the Obama Administration's proposal for a Consumer Financial Protection Agency. Those interested in the issue might want to check out Todd's podcast on the subject for Reason TV. Josh, in turn, has a Truth on the Market post on the CFPA, which criticizes President Obama's rationale for the agency.

Related Posts (on one page):

  1. More Wright and Zywicki on the Consumer Financial Protection Agency:
  2. Political Ignorance and the Case Against Paternalistic Regulation:

Does a Federal Mandate Requiring the Purchase of Health Insurance Exceed Congress' Powers Under the Commerce Clause?

I come late to the debate over whether a federal law requiring people to purchase health insurance exceeds Congress' powers under the Commerce Clause. In my view, the answer under current precedent is clearly "no." At the same time, I do think that such a law would be unconstitutional under the correct interpretation of the Commerce Clause - or any interpretation that takes the constitutional text seriously.

I. The Health Insurance Mandate Under Current Supreme Court Precedent.

Current Supreme Court precedent allows Congress regulate virtually anything that has even a remote connection to interstate commerce, so long as it has a "substantial effect" on it. The most recent major precedent in this field is Gonzales v. Raich, where the Court held that Congress' power to regulate interstate commerce was broad enough to uphold a ban on the use of medical marijuana that was never sold in any market and never left the confines of the state where it was grown. This regulation was upheld under the "substantial effects" rule noted above. As I describe in great detail in this article, Raich renders Congress' power under the substantial effects test virtually unlimited in three different ways:

1. Raich holds that Congress can regulate virtually any "economic activity," and adopts an extraordinarily broad definition of "economic," which according to the Court of encompasses anything that involves the "production, distribution, and consumption of commodities."

2. Raich makes it easy for Congress to impose controls on even "non-economic" activity by claiming that it is part of a broader regulatory scheme aimed at something economic.

3. Raich adopts so-called "rational basis" test as the standard for Commerce Clause cases, holding that "[w]e need not determine whether [the] activities [being regulated], taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding." In legal jargon, a "rational basis" can be almost any non-completely moronic reason for believing that a particular claim might be true.

Any of these three holdings could easily justify a federal requirement forcing people to purchase health insurance. The decision to purchase or not purchase health insurance is probably "economic activity," as Raich defines it, since it involves the distribution and consumption of commodities such as medicine. When you buy health insurance, you are contracting with the insurance company to provide you with medicine and other needed commodities should you get sick.

Even if the purchase of health insurance is "non-economic" in nature, it could easily be upheld as part of a broader regulatory scheme aimed at economic activity - in this case regulation of the health care industry. As I discuss on pp. 516-18 of my article on Raich, The Court makes it very easy to prove that virtually any regulation can be considered part of a broader regulatory scheme by not requiring any proof that the regulation in question really is needed to make the broader scheme work. Finally, even if a court concludes that the government was wrong to assume that the decision to buy health insurance is "economic activity" under Raich's broad definition and wrong to believe that the mandatory purchase requirement was part of a broader regulatory scheme, the requirement could still be upheld because there was a "rational basis" for these ultimately mistaken beliefs.

II. Why Current Doctrine is Wrong.

For reasons laid out in my article, I think that Raich and other decisions interpreting the Commerce Clause very broadly were wrongly decided. I also agree with most of Randy Barnett's arguments to that effect in this post. Looking at the text of the Constitution, the Commerce Clause merely grants Congress the power to regulate "Commerce ... among the several states." Choosing to purchase (or not purchase) health insurance is not interstate commerce, if only because nearly all insurance purchases are conducted within the confines of a single state. Obviously, the decision to purchase health insurance may well have an impact on interstate commerce, and modern doctrine even before Raich allowed congressional regulation of any activities that have such a "substantial effect." However, this "effects" test is badly misguided. If the Commerce Clause really gave Congress the power to regulate any activity that merely affects interstate commerce, most of Congress' other powers listed in Article I of the Constitution would be redundant. For example, the very same phrase that enumerates Congress' power to regulate interstate commerce also gives it the power to regulate "Commerce with foreign Nations" and "with the Indian tribes." Foreign trade and trade with Indian tribes (which was a much more important part of the economy at the time of the Founding than today) clearly have major effects on interstate trade. Yet these two powers are separately enumerated, which strongly suggests that the power to regulate interstate commerce doesn't give Congress the power to regulate any activity that merely has an effect - substantial or otherwise - on that commerce.

Be that as it may, it is highly unlikely that the Supreme Court would invalidate a major provision of the health care bill, should it pass Congress. In addition to requiring the overruling of Raich and considerable revision of other precedents, such a decision would lead to a major confrontation with Congress and the president. The Court is unlikely to pick a massive fight with a still-popular president backed by a large congressional majority. Of course, it is still possible that the Court could invalidate some minor portion of the bill on Commerce Clause grounds. But even that is unlikely so long as the majority of justices remain committed to Raich. Five of the six justices who voted with the majority in that case are still on the Court. The only exception - Justice David Souter - has been replaced by a liberal justice who is unlikely to be any more willing to impose meaningful limits on congressional power than Souter was.


Founder of Jedi Religion Claims to be Victim of Religious Discrimination:

The new "Jedi" religion, based on the Star Wars movies, has grown rapidly to the point where it may be the fourth largest religion in Britain. However, no religion has really arrived until its adherents can claim to be victims of religious discrimination. And it seems that the Dark Side of the Force has finally gotten around to discriminating against the Jedi:

Tesco [a British supermarket chain] has been accused of religious discrimination after the company ordered the founder of a Jedi religion to remove his hood or leave a branch of the supermarket in north Wales.

Daniel Jones, founder of the religion inspired by the Star Wars films, says he was humiliated and victimised for his beliefs following the incident at a Tesco store in Bangor.

The 23-year-old, who founded the International Church of Jediism, which has 500,000 followers worldwide, was told the hood flouted store rules...

Jones, from Holyhead, who is known by the Jedi name Morda Hehol, said his religion dictated that he should wear the hood in public places and is considering legal action against the chain.

"It states in our Jedi doctrination that I can wear headwear. It just covers the back of my head," he said.

"You have a choice of wearing headwear in your home or at work but you have to wear a cover for your head when you are in public."

He said he'd gone to the store to buy something to eat during his lunch break when staff approached him and ordered him to the checkout where they explained he would have to remove the offending hood or leave the store.

"They said: 'Take it off', and I said: 'No, its part of my religion. It's part of my religious right.' I gave them a Jedi church business card....

Tesco said: "He hasn't been banned. Jedis are very welcome to shop in our stores although we would ask them to remove their hoods."

"Obi-Wan Kenobi, Yoda and Luke Skywalker all appeared hoodless without ever going over to the Dark Side and we are only aware of the Emperor as one who never removed his hood."

I don't know if Jones has a serious case under British antidiscrimination law. It's unlikely that a suit like this could succeed in the US. Title II of the Civil Rights of 1964 forbids discrimination on the grounds of religion in "places of public accommodation" (including stores). However, a general store rule like the ban on hoods that happens to constrain a particular religion without deliberately targeting them is usually considered legal under Title II. Otherwise, stores would be unable to to adopt any customer dress restrictions at all. Any such code would violate the rules of at least some religions. Things might be different if the Jedi could prove that the ban on hoods was a deliberate effort to target their religious group. But that seems unlikely, though it may be that I just don't understand the true extent of the Dark Side's power.


Two More OLC Opinions Published:

I spent the weekend in idyllic Orkney Springs, VA. After I left on Friday, the Office of Legal Counsel released two more opinions, both concerning "Einstein 2.0," which sounds a little like a kid movie sequel ("Beethoven's 2d," anyone?), but actually is a cybersecurity initiative used to protect civilian unclassified networks in the Executive Branch against malicious network activity.

The first opinion is a 35 pager signed during the waning days of the Bush Administration, which concludes that Einstein 2.0 complies with the Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, FISA, the Stored Communications Act, and the pen register and trap and trace provisions of the U.S. Code, provided that log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by agencies using the system.

The second opinion, which is much shorter (just a hair over 5 pages), was signed August 14, 2009. It states that "[w]e have reviewed that opinion and agree that the operation of the EINSTEIN 2.0 program complies with" those provisions, which I guess isn't to be assumed nowadays, and also goes on to conclude that operation of Einstein does not run afoul of state wiretapping or communications privacy laws. Most of the opinion discusses the reasonable expectations of privacy of system users.

Publication of the August 14 opinion is the best indication yet that the current OLC is making it a priority to quickly publish those opinions it intends to publish.

The opinions received some press coverage. The most in-depth article was in the Washington Post.


Constitutional "Is" Versus Constitutional "Ought" -- A Brief Reply to Barnett and Jost: Looking over the exchange between Randy Barnett and Timothy Jost on what it means to say something is "unconstitutional," I wonder if their disagreement is primarily semantic. We all recognize that there is often a difference between how the Supreme Court has construed the Constitution and how a particular person thinks the Constitution should be construed. The question is, what label to use for those different approaches?

  My sense is that the most common labels distinguish between what the law "is" and what the law "ought" to be. The former is what the courts say the law is, and the latter is what a particular person thinks the law should be. This appears to be the approach Professor Jost follows. Randy offers a somewhat different approach: He would say that the Constitution "is" what a proper theory of Constitutional interpretation indicates it should be — proper, that is, according to Randy — while what the Supreme Court has said it is is merely "the opinions of justices" which may be right or wrong.

  I suppose which understanding is better depends on which community you're talking to and what your goals are. Among constitutional theorists, the question of what the Supreme Court has actually said is boring; whether the Supreme Court was right is the interesting question. On the other hand, if the audience is the public, my sense is that claims by experts about what is constitutional or not are generally understood as a prediction of what the courts should do under existing law. The expert is normally consulted for expertise on existing law, not for his or her own individual theory of constitutional meaning. For example, if a reporter calls me and asks for my view on whether a particular police investigation violated the Fourth Amendment, I understand that to be asking me what a court should do based on existing law, not to apply my personal normative theory of constitutional interpretation to the facts.

  On the other hand, if you are trying to sell a constitutional vision to the public, with the aim of having your own views become more widely shared, you might speak of that vision as what the Constitution "is" on the thinking that the strong statement will have more persuasive impact. In that context, the claim of what is constitutional or unconstitutional is less a claim about the particular legislation or action under consideration and more a normative claim about how we should interpret the Constitution. Such claims can be a little misleading, as the public generally isn't told of the author's normative goals. On the other hand, those sorts of claims are common in public discourse about the Constitution.

Tribute to Anatomy of a Murder: On Big Hollywood, Kurt Schlichter has a tribute to my all time favorite lawyer movie: Anatomy of a Murder. Read the whole thing, and watch the trailer, but here is a taste:
The plot is simple. Small-town lawyer Paul Biegler (Stewart), who is more concerned with fishing than his practice, is talked into meeting Army lieutenant Fred Manion, who is sitting in jail for the murder of the man the soldier claims raped his wife Laura (The hotter-than-hot Remick). Beigler takes the case, and faces off with Claude Dancer (Scott), the ace prosecutor sent in from the big city to chalk up yet another conviction. There is much more to the story – the movie is a brisk two hours forty minutes long – but there’s no sense in going into the details here. You just need to know this: Jimmy Stewart goes up against George C. Scott in court. Case closed.

The sparks fly in the courtroom under the direction of Otto Preminger, the enfant terrible of 50s and 60s Tinseltown, but the interesting part (at least for a lawyer) is that the film covers all aspects of the trial, in and out of the courtroom. Cases are often won not in front of the jury but hunched over a dusty book of old cases (or, today, in front of a computer screen looking at precedent online), and Anatomy doesn’t hesitate to show the hard work involved in putting up a defense.

That sounds dull as dirt, but Anatomy is anything but. Stewart is helped by his burned out, alcoholic mentor Parnell, played perfectly by Arthur O’Connell. His character is funny, irascible, sad and, in the end, redeemed. O’Connell even manages to steal scenes from Jimmy Stewart while snagging a best Supporting Actor nomination for himself (Stewart and Scott both earned Oscar nominations as well).

Preminger was known for the pushing boundaries, and he does it again here. This was 1959, and audiences must have been in for a shock not only hearing a frank discussion of topics like sexual climax and seminal fluid on the big screen but hearing it come from the mouth of George Bailey himself. But it’s not exploitation – it’s reality, and there is nothing wrong with adults viewing adult subject matter.
The trailer is just too good not to embed here

Will Congress Renew Patriot Provisions?

The NYT reports on the looming debate over reauthorizing portions of the Patriot Act.

Both the House and the Senate are set to hold their first committee hearings this week on whether to reauthorize three sections of the Patriot Act that expire at the end of this year. The provisions expanded the power of the F.B.I. to seize records and to eavesdrop on phone calls in the course of a counterterrorism investigation.

Laying down a marker ahead of those hearings, a group of senators who support greater privacy protections filed a bill on Thursday that would impose new safeguards on the Patriot Act while tightening restrictions on other surveillance policies. The measure is co-sponsored by nine Democrats and an independent.

Days before, the Obama administration called on Congress to reauthorize the three expiring Patriot Act provisions in a letter from Ronald Weich, assistant attorney general for legislative affairs. At the same time, he expressed a cautious open mind about imposing new surveillance restrictions as part of the legislative package.

“We are aware that members of Congress may propose modifications to provide additional protection for the privacy of law abiding Americans,” Mr. Weich wrote, adding that “the administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities.”

Prediction: Congress will enact superficial reforms that do not impose any significant limitations on existing authorities.


Sunday Song Lyric: The evolution of Green Day is quite remarkable. They were basically a punk revival band when I saw them in concert some fifteen years ago. I liked their stuff, but I would never have thought them capable of producing work like 2004's American Idiot and this year's 21st Century Breakdown. These two albums are particularly remarkable at a time when it seems most major, commercially successful artists have little interest in producing albums, that is records that work as coherent wholes, and are more than collections of potential singles interspersed with filler.

American Idiot is easily one of my favorite albums released in the past five years (though I think I'll pass on the musical). I haven't reached a final judgment on 21st Century Breakdown, but it's also quite good. The title track begins:

Born into Nixon I was raised in hell
A welfare child where the teamsters dwelled
The last one born and the first one to run
My town was blind from refinery sun

My generation is zero
I never made it as a working class hero

21st Century Breakdown
I once was lost but never was found
I think I'm losing what's left of my mind
To the 20th Century Deadline
Here are the full lyrics, and a live performance.

Judge Stephen Larson's Resignation Does Not Show that Federal Judges are Underpaid:

Federal District Judge Stephen Larson's recent resignation from the bench has led to renewed claims that federal judges are underpaid and should get a pay increase (see also here). Larson cited low pay as the main reason for his decision to resign. I can understand Larson's desire to for a higher salary. But the evidence strongly suggests that current pay rates are enough to maintain a high-quality judiciary. I have previously written several posts defending that view (see here, here, here, and here), and I remain unrepentant.

Currently, federal court of appeals judges make $179,500 per year and district judges $169,300; Supreme Court associate justices get $208,000 and the Chief Justice clocks in at $217,400. It is true that these salaries are less than what many judges could make as partners at big law firms. However, it's important to consider the total compensation of judges, not just their salaries. Once you factor in judges' imprssive nonsalary compensation - prestige, shorter working hours, interesting work, generous pensions, lifetime job security, and freedom from any need to deal with clients - the rewards of being a federal judge are quite competitive with the alternatives. That explains why so many talented lawyers lobby hard to get judgeships, and why judicial resignations are vanishingly rare. Between 1990 and 2005, only 21 federal judges resigned from the bench before reaching the retirement age, a rate of attrition less than 0.3% per year.

Judge Larson's early resignation made news in part because it is so extraordinarily unusual. He is also unusual for another reason: he has seven children. Unlike some of the commenters to Orin's post, I don't presume to tell Larson and and his wife how many children they should have. But it is obvious that a family with seven children faces more difficult financial challenges than one with the more typical one to three children. It is certainly possible to support seven children on a district judge's salary. I know several judges and legal scholars with that many or more children who seem to be doing fine on salaries comparable to the one Larson had. Still, it's not an easy task to support so many kids. However, very few prominent lawyers have as large a family as Judge Larson. Thus, even if judicial pay really is too low for his family, that still doesn't prove that we need a pay increase in order to ensure the overall quality of the federal judiciary.

Related Posts (on one page):

  1. Judge Stephen Larson's Resignation Does Not Show that Federal Judges are Underpaid:
  2. Federal Judge Resigns After 3 Years on Bench, Citing Low Judicial Salary: