The Volokh Conspiracy

In the latest New Yorker, Hendrik Hertzberg endorses 18-year term limits for Supreme Court justices, relying on a paper that Steve Calabresi and I published in 2006.

Hertzberg considers this reform the one good idea put forward by the now-defunct campaign of Texas Governor Rick Perry:

This ingenious idea has been kicking around in legal circles for decades. It tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy. Justices would still get lifetime appointments. After their eighteen years with the Supremes, they could choose to serve on other federal courts, bringing their experience and, in some cases, their wisdom to the appellate bench. Even if they didn’t exercise that option, though, their salaries would continue for life. If a Justice died or retired before his or her eighteen years were up, a substitute would be appointed via the usual process—Presidential nomination, Senate confirmation—to serve out the remainder. The interim Justice would not be eligible for reappointment to the Supreme Court, but he or she would have the same sweet post-Court deal. And what lawyer wouldn’t jump at the chance to be a Justice of the highest of high courts, if only for a year? . . .

From 1789 through 1970, the average tenure of a Supreme Court Justice was about fifteen years. For Justices who have retired or died since then, the average tenure has been twenty-six years. This isn’t just an artifact of longer life spans. As the Court’s importance has grown—Marbury v. Madison made it the only one of the three federal command posts that is functionally sovereign, and the polarized gridlock of the elected branches has only made it more powerful—and as it has become more “political,” aging Justices have tended to hang on well into senescence, especially when the sitting President is of a different ideological persuasion. Presidents, for their part, seek to extend their influence into the far-distant future, by finding the youngest nominee they can get away with. (Another incentive: while younger is not always wiser, it does make for a shorter paper trail.) The prospect that a Justice will be handing down decisions for close to half a century [more accurately: a quarter-century or a third of a century--JL] turns confirmation fights into political Armageddons. The randomness of openings abets the now-or-never mentality. Richard Nixon named four Justices during his five years in the White House; Jimmy Carter, during his four years, named zero.

Under our proposal, slots would open in the summer of odd years, thus guaranteeing two appointments in a president’s four-year term.

According to the AP, 4 Republican state senators in Wisconsin have been re-elected, while 2 have lost their seats to Democrats. The Republicans thus continue to hold a majority in that chamber of the Wisconsin legislature.

The last race to be called was in the 8th District. Twelve Milwaukee precincts seem to have been withheld for a very long time, leaving open the possibility of the Democrat (Pasch) overtaking the Republican (Darling). But other Wisconsin news outlets have collected results from almost all of the outstanding precincts and Darling’s lead is holding up (tip to HuffPo relaying counts of the Patch).

UPDATE (2am ET): All but one of the Milwaukee precincts have now reported and Darling’s lead remains substantial. It’s over . . . .

Glenn Reynolds is celebrating the 10th anniversary of Instapundit by doing what he always does: keeping us up to date on what is going on in the world. Not only is Instapundit the first place I turn to every day for links to news and commentary, but Glenn’s efforts have meant a lot to me over the years. Thus it seems somewhat feeble merely to say a heartfelt
“Thank you.”

Just before 9pm ET on Sunday night, Dow Jones Industrial futures are up 178 points and S & P 500 futures are up 20 points.

UPDATE: On Monday in Asia (Sunday night in the US), the stock markets in Japan, China, Australia, and South Korea are up 1.3% to 1.9%.

2D UPDATE (Monday afternoon): Though the Dow hit 140 points UP shortly after the opening on Monday morning, it quickly reversed, hitting 140 points DOWN at the low. By 3:15pm ET, the Dow had recovered to down 39 points.

3D UPDATE (Monday market close): The Dow closed down only 11 points (0.09%), while the NASDAQ and S & P 500 closed down 0.4%.

To follow up on Eugene’s post on Governor Nikki Haley’s voter registration, here is Haley’s picture from Wikipedia:

A suspect has been arrested in the Norwegian terror attacks. According to VGNett, his name is Anders Behring Breivik:

Terror Suspect Anders Behring Breivik. Photo published by VGNett.

UPDATE:

An automated Google translation of a story at VG Nett (the web site of a national newspaper in Norway) includes this passage (sorry, I don’t read Norwegian, so I can’t vouch for the translation):

Critical of Islam

In online debates marks Anders Behring Breivik as well read, and one with strong opinions about Norwegian politics. He promotes a very conservative opinions, which he also called nationalist. He expresses himself strongly opposed to multiculturalism – that cultural differences can live together in a community.

Breivik has had many posts on the site Document.no, an Islam-critical site that publishes news and commentary.

In one of the posts he states that politics today no longer revolves around socialism against capitalism, but that the fight is between nationalism and internationalism. He expressed clear support for the nationalist mindset.

Anders Breivik Behring has also commented on the Swedish news articles, where he makes it clear that he believes the media have failed by not being “NOK” Islam-critical.

A couple of hours ago, the New York Times reported that a terrorist group took credit for the attack:

A terror group, Ansar al-Jihad al-Alami, or the Helpers of the Global Jihad, issued a statement claiming responsibility for the attack, according to Will McCants, a terrorism analyst at C.N.A., a research institute that studies terrorism. The message said the attack was a response to Norwegian forces’ presence in Afghanistan and to unspecified insults to the Prophet Muhammad. “We have warned since the Stockholm raid of more operations,” the group said, according to Mr. McCants’ translation, apparently referring to a bombing in Sweden in December 2010. “What you see is only the beginning, and there is more to come.” The claim could not be confirmed.

Now Will McCants, the Times’s source, reports that this claim of credit has been retracted:

This [claim of credit in Arabic] was posted by Abu Sulayman al-Nasir to the Arabic jihadi forum, Shmukh, around 10:30am EST (thread 118187). Shmukh is the main forum for Arabic-speaking jihadis who support al-Qaeda. Since the thread is now inaccessible (either locked or taken down), I am posting it here. I don’t have time at the moment to translate the whole thing but I translated the most important bits on twitter.

Update: Abu Sulayman has now issued a retraction, stating clearly that “Helpers” was not involved in the operation and that his statement was not an official statement. He says those who carried out the attacks “must surely be known to all.”

I assume that Abu Sulayman is implying that al-Qaeda (or an al-Qaeda-linked group) is responsible.

If you want to follow the results of Wisconsin’s Senate recall primary, you might go to the Journal-Sentinel’s site.

Early results show that the “real” Democratic candidates are beating the Republican-sponsored “fake” or “protest” Democratic candidates by about a 2-to-1 margin, except in District 14, where the real Democrat Fred Clark leads Rol Church by a still substantial 16% with 10% of precincts reporting.

UPDATE: With 3% reporting in District 8, the real Democrat, Sandy Pasch, is trailing Gladys Huber by 16%. The identities of the candidates in each race are set out here.

2D UPDATE: With 16% reporting in District 8, Sandy Pasch has taken a large 50% lead over Gladys Huber.

3D UPDATE: Only one race is now close: In District 10, the real Democrat, Shelly Moore, leads Isaac Weix by only 6%, with 35% [then 54%] of precincts reporting.

4TH UPDATE: Moore has extended the lead over Weix to 8% with 77% [then 84%] reporting.

5TH UPDATE: With 91% reporting, the Journal Sentinel calls the race for Moore, the real Democrat. Thus, all the regular Democrats appear to have won their primaries.

Professor Philip Hamburger of Columbia University appreciated the scholarly comments he received from Volokh Conspiracy readers last year when I blogged his Privileges or Immunities article. He therefore has now asked me to seek comments on another manuscript, this one called “Consent No Cure for Unconstitutional Conditions.” The abstract summarizes:

Although consent is said to justify unconstitutional conditions, consent is no cure. Of course, within the government’s constitutional authority, consent often is a measure of what the government can do. But outside such authority, it is another matter. Constitutional powers and rights are legal limits imposed by the people. Therefore the consent of mere individuals, states, or private institutions cannot justify the government in going beyond these limits.

Though I have just skimmed the piece, it appears very interesting and important, for it takes a new approach to unconstitutional conditions. In essence, it explores whether the federal government can cure an unconstitutional action by obtaining someone’s consent to do what it wants to do. The paper can be found at SSRN. If you have suggestions, you may email him at Columbia (his email address is listed at SSRN, if you click on his name in the abstract).

From Wisconsin Dept. of Administration (tip to Wheeler Report):

Thursday, March 10, 2011
Capitol opening delayed Thursday
Capitol opening delayed Thursday
The Wisconsin State Capitol did not open at 8 a.m. Thursday morning due to events the previous night when thousands of people entered the building after the Capitol was to have been closed for the evening and more than 200 people remained overnight.

The Capitol will not open until a law enforcement assessment of the building and today’s security requirements have been completed.

– Capitol Police

Questions have been raised whether the 2-hour notice given of the Wisconsin Senate committee meeting was adequate. Rob Marchant, the Clerk of the Senate issued this statement (tip to Wheeler Report):

There was some discussion today about the notice provided for the legislature’s conference committee. In special session, under Senate Rule 93, no advance notice is required other than posting on the legislative bulletin board. Despite this rule, it was decided to provide a 2 hour notice by posting on the bulletin board. My staff, as a courtesy, emailed a copy of the notice to all legislative offices at 4:10, which gave the impression that the notice may have been slightly less than 2 hours. Either way, the notice appears to have satisfied the requirements of the rules and statutes.

Since the Clerk is relying on Senate Rule 93, it’s worth a look. The provision is a special rule for special sessions, which tend to be more focused in topics and more time pressured in duration. Rule 93 in part provides:

Senate Rule 93 (2)
(2) A notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published.

Senate Rule 93 (3)
(3) The daily calendar is in effect immediately upon posting on the legislative bulletin boards. The calendar need not be distributed.

Senate Rule 93 (4)
(4) Any point of order shall be decided within one hour.

On its face, this rule would seem not to require even a 2-hour notice, just posting on the bulletin board, which is how the Clerk interprets it. This is consistent with the emphasis on speed implicit in several parts of Rule 93. Yet it is possible one could instead read the rule as merely covering the method of notice, not the timing of it, but I think that reading is neither the literal one nor the intended one.

The Wisconsin Open Meetings Law [see 2D update below] has an exception for inconsistent legislative rules so that is unlikely to come into play.

BTW, the best place to follow the legislative news in Wisconsin is The Wheeler Report.

UPDATE: Barry Pump raises another issue.

2D UPDATE: Here is the relevant provision of the Wisconsin Open Meetings Law:

19.87 Legislative meetings.
This subchapter shall apply to all meetings of the senate and assembly and the committees, subcommittees and other subunits thereof, except that:

(1) Section 19.84 shall not apply to any meeting of the legislature or a subunit thereof called solely for the purpose of scheduling business before the legislative body; or adopting resolutions of which the sole purpose is scheduling business before the senate or the assembly.

(2) No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.

3D UPDATE: Some commentators have suggested that the conference committee was a joint conference committee, involving Assembly members as well Senators [and it was]. Yet the Assembly has the same language in its own Rule 93, so I don’t see how that alone would change things.

I’d have to say that the legislature could do a better job of informing people of exactly what was done and under what legal authority.

4TH UPDATE: Representative Peter Barca’s complaint is online. One issue he raised caught my eye, and I certainly have no explanation for it: The bill was taken to a joint conference committee BEFORE it was passed by the Senate, when usually it must pass both houses before being sent to conference.

5TH UPDATE: A member of the nonpartisan staff of the legislature explained the last problem for me.

Joint Rule 3 provides in part:

Joint Rule 3 (1)
(1) In all cases of disagreement between the senate and assembly on amendments, adopted by either house to a bill or joint resolution passed by the other house, a committee of conference consisting of 3 members from each house may be requested by either house, and the other house shall appoint a similar committee. At least one member from each house shall be a member of the minority party.

There are two possible readings of this provision. Under the one apparently employed by the legislature and endorsed by at least parts of its nonpartisan staff, a conference can be called without a vote in the Senate first. If the Senate has a “disagreement” (i.e., a majority of senators disagree) with an “amendment, adopted by either house” (here the Assembly), the Senate can request a conference on a bill passed by the other house (here the Assembly, which had passed Assembly Bill 11 after amending it).

Under the second possible reading, the amendment causing disagreement has to have been adopted by the house other than the one that passed the bill. Under that reading, before the Senate could request a conference, it would have had to pass an amendment to the Assembly bill, which it did not do before the request.

My guess is that the second interpretation (not the first) was intended, but the first interpretation is also consistent with the language of the rule.

The 138-page substitute for Wisconsin Senate Bill 11 is only 6 pages shorter than the 144-page original Bill 11.

The senators seem to have left in everything that was not clearly fiscal. They even left in several sections near the end that (unwisely, IMO) still have “Fiscal” headings, though they contain no taxes or increases in appropriations, e.g.:

SECTION 9221. Fiscal changes; Health Services.

SECTION 9227. Fiscal changes; Joint Committee on Finance.

SECTION 9230. Fiscal changes; Legislature.

The Wisconsin Senate has passed a budget bill with the “non-fiscal” provisions stripped out, just as I proposed last week in a manuscript on SSRN, a post at Volokh (“Wisconsin Senate Does Not Need a 3/5ths Quorum to Pass Much of the Budget Bill”), and an op-ed at National Review Online. Those curious about the legalities of the definition of “fiscal” should download my paper at SSRN.

A source in the legislature informed me last week that this approach had been proposed early on, but had been rejected as too politically risky for Republicans friendly to labor and too procedurally hard to go through both houses again, given the rancor in the assembly. From what I’ve heard from several sources (including one journalist), I’m fairly certain that it was NOT under active consideration when I floated my proposal last week.

I haven’t been able to find a copy on the bill online yet, but it appears that the senators took a fairly aggressive line in determining what was fiscal, treating even provisions that have financial impact as not fiscal. For example, the Bill passed by the Senate is reported to contain the requirement that contracts require public workers to pay at least 12%. In this, as my op-ed and article showed, they are being consistent with the very narrow definition of fiscal in the Wisconsin Constitution and the Joint Rules of the legislature.

Here is the conclusion of my SSRN paper, Super Quorums Under the Wisconsin Constitution:

Article VII, §8 of the Wisconsin Constitution requires a three-fifths quorum only for statutes that are fiscal, that is, statutes that actually appropriate money, impose taxes, create a debt, or release a claim owed to the state. Even then, these categories have consistently been interpreted in the most limited form conceivable. Indeed, the Wisconsin attorney general in 1971 gave a formal opinion to the legislature that a bill that changed collective bargaining rights substantially was not fiscal in nature and was not subject to the three-fifths super quorum provision. Because collective bargaining rights and that very statutory chapter (ch. 111) are at the heart of the proposed Senate Bill 11, the most controversial portions of the bill could be passed constitutionally with just a simple majority of elected members present, without a three-fifths quorum.

Continue reading ‘Wisconsin Senate Splits and Passes Most of the Budget Bill’ »

Michael Stern has a thoughtful post at PointofOrder.com on the arrest clause of the Wisconsin and US constitutions.

He argues (in part):

As Akil Amar and Neal Katyal note in a 1995 law review article, modern cases have given the arrest clause such a narrow construction as to make it a “virtual nullity.” They suggest, however, that a broader interpretation of the clause that once prevailed may be more consistent with the original understanding. Specifically, they argue that “arrest” may be “understood more functionally as extending to various civil cases that interfere with– that arrest– a person’s performance of her duties in public office.” In support of this view, they cite, among other things, an 1840 decision of the Wisconsin Supreme Court which held that the privilege should be given a “liberal construction” to ensure “the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of congress.”

Even at the time when the privilege was given its broadest reading, however, there appears to be no case or commentator suggesting that the privilege would in any way inhibit a legislature from arresting its own members. Among other things, such an interpretation would render unconstitutional longstanding rules and practices of both the U.S. House and Senate. For example, a House rule provides that in the absence of a quorum, “a majority of those present may order the Sergeant-at-Arms to send officers appointed by him to arrest those Members for whom no sufficient excuse is made and shall secure and retain their attendance.”

Moreover, applying the arrest privilege to arrest by the legislature would stand the purpose of the privilege on its head. Rather than protecting against interference by outsiders that might prevent the legislature from fulfilling its functions, or prevent individual legislators from performing their constitutional duties at a session of the legislature, it would now prevent the legislature itself from ensuring that it has a quorum to conduct its business and would empower individual legislators who wished to absent themselves from performing their duties. It would also fly directly in the face of the quorum clauses of the U.S. and Wisconsin constitutions, which authorize each house to “compel the attendance of absent members, in such manner, and under such penalties, as each house may provide.” There is simply no warrant (so to speak) for such an interpretation.

From some private correspondence I received today from him, I suspect that we may both see the main potential problem with the Wisconsin resolution as being the contempt and disorderly conduct grounds. And I tend to think that arresting senators is a bad idea politically.

Does the Wisconsin Senate have the power to compel absent Democratic senators to return to the senate floor if they re-enter the state of Wisconsin? Yes. But the Senate Resolution, by focusing on contempt and disorderly conduct, weakens the basis for this action.

I think this question must be analyzed at four levels:

1. Constitutional Protections: Would the Wisconsin Constitution’s protection against being arrested in a case – that is, a court case – apply to this situation, which is not an arrest in a court case?

2. Enforcement: Who can or would enforce a legal senate order to compel attendance?

3. Statutory Problems: Do any statutes alter any power in the senate to compel attendance?

4. Adequacy of the Resolution: Does the Senate Resolution give an adequate legal basis for compelling attendance.

In this post, I take up the constitutional question.

Reading through a couple dozen news articles and blog posts on this matter, I have been appalled at the inability of the commentators to analyze the relevant Wisconsin constitutional provisions. Because I am not an expert in these matters, it is easy for me to make mistakes, but even a cursory glance at what’s out there suggests that genuine experts have not yet weighed in sufficiently to shape the debate. One blog even posted what purports to be a legal memo from some Madison attorneys.

Typical of the news reports is this one from CNN:

But whether the contempt measure is constitutional remains unclear. The state Constitution prohibits the arrest of lawmakers while the legislature is in session, except for “treason, felony and breach of the peace.”

CNN misreads the provision in part because they quote only part of the relevant language of the Wisconsin constitution:

SECTION 15. [Exemption from arrest and civil process.] Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

The exemption from arrest is a separation of powers provision. Traditionally, legislatures could police their own miscreant legislators, but the courts could not interfere with the ability of legislators to appear in the legislature. Two hundred years ago, “arrest” was something that occurred in criminal cases and most non-contract civil cases. Thus by its express terms, the Wisconsin privilege against arrest applies only to “cases.”

In 1770 Lord Mansfield advocated for a bill that allowed Members of Parliament to be arrested for crimes but not arrested for civil cases:

Members of both houses should be free in their persons in cases of civil suits, for there may come a time when the safety and welfare of this whole empire may depend upon their attendance in Parliament. God forbid that I should advise any measure that would in future endanger the state. But this bill has no such tendency. It expressly secures the persons of members from arrest in all civil suits. [as quoted in Williamson v. United States, 207 U.S. 425, 438 (1908)]

There it is. The purpose of the privilege against being arrested in a court case was to help facilitate attendance in Parliament, not to frustrate it. The idea that Mansfield would have been preventing Parliament from enforcing its own rules by outlawing compulsion would probably not even have occurred to him. Thus compelling attendance in the Wisconsin senate is consistent, not only with the letter of the Wisconsin Constitution’s arrest clause, but with its spirit and purpose as well.

I would hope that those who rely on the arrest clause of the state constitution would deal with the fact that the privilege against arrest applies “in all cases.” These commentators might try to argue that the drafters of the Wisconsin — and by implication, US – Constitutions meant “in all instances” when they wrote “in all cases.”

As implausible as this interpretation would be in the abstract, in context it would not pass the laugh test. After all, the phrase reads: “in all cases, except treason, felony and breach of the peace.” In context, the framers’ language clearly meant court cases. If there is some reason to think that the Constitutional arrest provision doesn’t mean what it says, I haven’t encountered it yet (but then I’ve been working on this issue for only a few hours and this is out of my main areas of expertise).

Another amazing defect of the analyses I’ve encountered is that they ignore — or are unable to reconcile sensibly – the compulsory attendance provision (Article IV, §7) of the constitution:

SECTION 7. [Organization of legislature; quorum; compulsory attendance.] Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide.

Reading the two constitutional sections together, the courts can’t meddle in legislative affairs by arresting legislators in a civil court case, but each house of the legislature “may compel the attendance of absent members in such manner and under such penalties as each house may provide.” Given that force was traditionally used to compel attendance and is still used in the US Senate (which operates under similar Constitutional provisions), there would have to be a reason that I haven’t seen yet why this provision does not authorize force if necessary.

As I noted this afternoon:

Historically, constitutional guarantees against the arrest of members of legislative bodies developed as protections against judicial or executive arrests, not against the power of a house of a legislature to seize and discipline its members. Indeed, this was considered a matter of legislative privilege, and when a house of a legislature remained within its privilege, its disciplinary decisions were considered beyond the review of the courts. The Wisconsin constitutional provision on the arrest of members (Art. IV, s. 15) follows this tradition . . . .

The privilege to compel attendance is just as much a legislative privilege as the privilege not to be arrested in court cases.

Why would commentators assume that the arrest clause and compulsory attendance clause were inconsistent — and that the drafters of both the US Constitution and the Wisconsin Constitution were too sloppy to notice it and resolve the tension — and that the arrest clause trumps the compulsory attendance clause? If you just read both clauses according to the language they actually used, they are not at all inconsistent. One applies to court cases in the judicial sphere, the other to house discipline in the legislative sphere. This interpretation is consistent with their language, their purpose, their history, and their logic.