I am not, with this post, going to attempt a detailed exposition on Judge Vinson’s ruling that declared the individual mandate unconstitutional and, due to the lack of a severability clause, struck the whole law as unconstitutional. But I will give you a brief overview and direct you to other good sources.
Here are the basics you will need to start your day.
First, you need to understand that the case before Judge Vinson was not directed at whether the federal government can involve itself in healthcare. Instead, the case was whether the individual mandate is constitutional.
The individual mandate is the keystone to the whole legislation. Without it, the funding mechanisms of the law collapse in on themselves. Judge Vinson ruled that forcing people to buy healthcare insurance, whether they want it or not, is unconstitutional.
In short, if I read the opinion (plus this final judgment) correctly — quite apart from both the lofty philosophical principles I applaud Judge Vinson for adopting and the nitty-gritty technical details of his individual mandate analysis — Obamacare is dead in its tracks. Now, Judge Vinson himself or the Eleventh Circuit (or even the Supreme Court) may issue an emergency stay of this or any other part of the ruling, but as of right now, the federal government must stop implementing Obamacare.
Well, go ahead, see what happens if you try to implement Obamacare without actually overturning the decision.
And notice that term “activism.” The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals. They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air. Let’s suppose for the sake of argument that the judge’s opinion is supported by the constitution or precedent—they have no principled objection to that. So their objection is merely to losing.
And meanwhile anonymous White House officials had this to say:
White House officials said that sort of “surpassingly curious reading” called into question Judge Vinson‘s entire ruling.
“There’s something thoroughly odd and unconventional about the analysis,” said a White House official who briefed reporters late Monday afternoon, speaking on condition of anonymity.
Hmm. I think it’s a bit curious that the White House would send an “anonymous” official to criticize the ruling of an Article III judge, and surpassingly curious that a gaggle of reporters would agree to respect the aide’s anonymity in exchange for the “anonymous” quotes.
Shouldn’t the reporters either tell the official to go on the record, or refuse to take part in a “briefing” that amounts to simply a colorful attack on an unfavorable opinion?
Now let’s return to Judge Vinson’s analysis of the Necessary & Proper Clause. The words of the relevant Supreme Court cases point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.” Page 62. He writes:
[T]he Commerce Clause limitations on the federal government’s power would definitely be compromised by this assertion of federal power via the Necessary and Proper Clause. . . . .The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”
This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.
Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.
Anyway, I realize this argument will only resonate with readers who care about binding precedent, which at times seems like a vanishingly small group of readers. But it does seem to be the weak link in Judge Vinson’s opinion for the three of us who are interested in whether the decision is correct under existing law.
UPDATE: I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before.
ANOTHER UPDATE: My co-blogger Ilya Somin defends Judge Vinson by pointing out that the Supreme Court’s majority opinions insist that the federal government does not have completely unlimited power. Ilya’s argument is unpersuasive because the existence of nonzero limits in no way implies the existence of major limits. The current state of Commerce Clause doctrine is that there are certain largely symbolic limits on federal power but those limits are relatively minor: As Justice Thomas put it, Congress can regulate virtually anything. Judge Vinson says that this cannot be the law because it would make the federal government too powerful. But Judge Vinson does not consult existing doctrine before declaring the principle, and that’s the problem: If you take existing doctrine seriously, it readily fits the mandate under the Necessary and Proper clause.
Based on existing Supreme Court precedents, Judge Vinson’s opinion strikes me as well-reasoned. But this case is different from any that have yet come before the Court, and the Court could go either way. The final decision will be essentially political.
While everyone purports to agree in principle that our federal government is one of limited, enumerated powers, the true liberal position is that there are no limits at all on what the federal government can do, except as set forth in the Bill of Rights. Thus, the delineation of the role and powers of the national government, as laid out in the main body of the Constitution, is ignored. On the other hand, the amendments are selectively given an expansive reading where necessary to prevent the government from doing something that liberals do not think is appropriate (e.g., enforcing laws against abortion). Affirming Obamacare would represent a new high-water mark for that philosophy.
A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.
Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.
In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.
The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.
Suit was brought by Virginia attorney general Ken Cuccinelli.
“I am gratified we prevailed. This won’t be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution,” said Cuccinelli in a statement.
Cuccinelli has made the extraordinary request that the case bypass the regular appellate order and proceed directly to the highest court, arguing that the Obama administration, too, would benefit from a speedy resolution.
Hudson’s ruling is not unexpected. He is a Republican appointee with a history of conservative rulings. Nor is it definitive. Two other federal district judges, Democratic appointees both, have already ruled that the entire law passes constitutional muster. A fourth decision, by a judge in Florida, is expected by year’s end.
Most legal experts expect that, eventually, the case will come before the U.S. Supreme Court. Hudson himself acknowledged as much, writing “The final word will undoubtedly reside with a higher court.”
And how might the five Republican appointees and four Democratic appointees on the Surpeme Court rule? Most court observers I know believe that at least one of the Republican appointees, most likely Anthony Kennedy, would agree with the government that the Affordable Care Act falls well within traditional boundaries of the taxing and interstate commerce powers. (For an example of such logic, see the Michigan ruling from a few weeks ago.)
I tend to think those experts are right, for reasons I’ll get around to explaining one of these days. Then again, I recall hearing similar confidence about another highly anticipated court ruling–one about, oh, ten years ago.
For more on the mandate and some varied opinions on how an adverse ruling by the Supreme Court might affect the Affordable Care Act overall, see Aaron Caroll, Jonathan Gruber, Ezra Klein, and Igor Volsky.
Meantime, if you’re looking for a more generic primer on the individual mandate, I highly recommend this video from the Kaiser Family Foundation.
I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself. The key line is on page 18:
If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.
he real danger to health-care reform is not that the individual mandate will be struck down by the courts. That’d be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn’t penalize anyone for deciding not to do something (which is the core of the conservative’s legal argument against the provision). Here’s one suggestion from Paul Starr, for instance. The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that’s exactly what the plaintiff has asked Hudson to do.
Hudson pointedly refused. “The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.” That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for “1501.” It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make “specific reference” to the provision, even if you could argue that they are “directly dependent” on the provision. The attachment of the “specific reference” language appears to sharply limit the scope of the court’s action.
In this particular case, the next step on the appellate ladder would be the Court of Appeals for the Fourth Circuit, which has generally had a reputation of being among the more conservative Courts of Appeal. However, Virginia’s Attorney General has reportedly been mulling the idea of applying to the Supreme Court to leave to bypass the Court of Appeals and proceed directly to the final state of the appellate process. Even if such an application were made, there’s no guarantee it would be granted so the the case may end up in the 4th Circuit anyway, but this strikes me as mistake. It seems to me that a final hearing before the Supreme Court might have a better shot, for Virginia, if it had other rulings against the law from other Courts behind it.
In any event, it’s clear that the Federal Government was unable to overcome much of the initial skepticism that Judge Hudson expressed about the arguments in favor of the mandate in his ruling on the government’s Motion to Dismiss. On the Commerce Clause, Hudson ruled that the requirement that American citizens purchase health insurance or face a penalty to exceed even the relatively liberal bounds of Congressional authority as set forth in case likes Wickard v. Filburn and Gonzalez v. Raich and that failure to act cannot itself be considered an act occurring within interstate commerce. On the government’s backup argument that the mandate and it’s penalty are justified under Congress’s far broader authority to tax for the “general welfare,” Hudson essentially ruled that the taxing power cannot be used to accomplish a purpose not authorized under the specific grants of power given to Congress under Article I, Section 8, and that the Attorney General’s argument is undercut by the fact that both Congress and the President specifically denied during the build up to passage of the Affordable Care Act that the mandate was a tax (a relevant fact because it goes to the question of Congressional intent).
Finally, rather than declaring the entire ACA unconstitutional, Hudson’s decision merely enjoins enforcement of the individual mandate. However, given the fact that mandate is the centerpiece of the entire regulatory scheme, it is hard to see how the rest of the law could survive without it.
This case is obviously going to be appealed, but it’s nonetheless a victory for Virginia, and it’s noteworthy as one of the few times in recent memory that a Court has said to Congress — no, you can’t do that. For that reason alone, it’s a good thing.
Here’s what you need to know about Judge Vaughn Walker’s decision invalidating California’s Proposition 8, a referendum, passed by voters, that banned same-sex marriage. The decision itself will be appealed, and Walker’s reasoning could serve as the basis for argument at the appellate level — or, the appeals court could decide to argue the case a completely different way.
What matters are the facts that Walker finds. Why? As Chris Geidner notes, “[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker’s findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous.”
Walker, in his decision, writes that “Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license.” He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values.
“Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight,” Walker writes. “Blankenhorn gave absolutely no explanation why
manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.”
The arguments for banning gay marriage are so weak, Walker said, that they fail even the highly deferential “rational basis” test, which applies in equal protection cases that do not involve a “suspect classification” such as race. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples.”
The decision is bound to be appealed and may ultimately reach the Supreme Court. The text of Walker’s opinion is available here. The Los Angeles Times has excerpts here. I discussed the equal protection argument for federal recognition of state-approved gay marriages here and here. More to come.
In his findings of fact, Walker pointed out that California “has never required that individuals entering a marriage be willing or able to procreate.”
He also notes that slaves were unable to marry.
“The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained,” he wrote.
Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman’s identity is subsumed by her husband’s.
Great news for real conservatives who believe in the U.S. Constitution and its guarantee of equal protection under the law! A U.S. District Court Judge, first nominated by Ronald Reagan and then appointed under George H.W. Bush, has struck down CA’s Prop 8 which added an amendment to the state constitution banning same-sex marriage equality. The state’s majority Republican-appointed Supreme Court had previously found no basis for banning same-sex marriage in the CA constitution. That finding was, in effect, overturned at the ballot box in November 2008 by Prop 8 which ended same-sex marriage in the state and left thousands of marriages in limbo until today’s finding.
CNN is going to gay bars in San Francisco on TV right now, for reactions. (Update: No one was in the gay bars so they stopped. Lame empty gay bars!)
You can read the full decision here. The judge found it unconstitutional under both the due process and equal protection clauses. The ruling is expected to be appealed and could end up at the Supreme Court.
The full ruling from Judge Walker, an appointee of President H.W. Bush, is online here.
Note, the case will now go to the 9th Circuit Court of Appeals, which tends to be pretty progressive. Many legal experts I’ve spoken to expect the Supreme Court to eventually hear the case.
In the meantime, the decision is heartening. The arc of history is long, but it continues to bend towards justice.
Looking ahead, it will be interesting to see what kind of role the issue of same-sex marriage, so incendiary in California in 2008, will play in the midterm elections in the state this November. The Courage Campaign, a progressive online organizing network based in California and formed partly in response to the passage of Prop 8, has been busy pointing out the role of the National Organization of Marriage (NOM), the main nonprofit behind the passage of Prop 8, in backing California candidates like GOP senate hopeful Carly Fiorina.
“In NOM, Carly Fiorina has aligned herself with a fringe group that relies on lies and fear to advocate discrimination and second-class citizenship for millions of loving American families,” Courage Campaign Chairman and Founder Rick Jacobs said in a press release. “Bigotry is not a family value and it has no place in the United States Senate.”
The National Organization of Marriage, already under fire for failing to disclose its donors to state election officials in Iowa and Maine, has now joined up with the Latino Partnership for Conservative Principles, an initiative of American Principles in Action, and the Susan B. Anthony List, a pro-life women’s network, to back Fiorina through the “Tus Valories” (Your Values) Campaign, an independent expenditure on the part of American Principles in Action.
The common wisdom is that the prospects for upholding Judge Walker’s decision in the 9th Circuit are good. I agree. However, the common fear is that the ever more conservative and dogmatic Roberts Court will reverse and ingrain the discrimination, inequality and hatred of Proposition 8 and its supporters deep into American law and lore. I am much more optimistic this is not the case.
As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:
…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.
The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:
Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
……
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.
So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.
I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives. It is exactly what Vaughn Walker has ingrained in to and framed his extraordinary decision today on.
Today is one of those rare seminal days where something important and something good has occurred. Fantastic. The beauty and joy of equality, due process and equal protection under the Constitution of the United States of America.
Naturalized American citizen Faisal Shahzad, arrested late last night for the failed car bomb in Times Square, is in U.S. custody. Should he be read his Miranda rights? The question has a complicated recent history in U.S. policy.
In December, the Nigerian Umar Farouk Abdulmutallab was Mirandized after his failed attempt to blow up a U.S. flight, which provoked outrage among some Republican legislators. Critics insisted that the Miranda reading made Abdulmutallab less likely to share intelligence, although administration officials say he continued speaking openly. The current rift among some conservatives over Shahzad’s Miranda rights reveals a tension within the party between two core issues: Civil liberties, which is emphasized by those saying Shahzad’s rights as a citizen must be respected, and national security, which some Republicans say is better served by not Mirandizing.
Conservatives For Mirandizing
Glenn Beck: Read Him His Rights On Fox & Friends, Glenn Beck said, “He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens.” Fox New’s Brian Kilmeade pushed back, calling Shahzad “a threat to the country.” Beck sighed, “So are a lot of citizens. If you’re a citizen, you obey the law and follow the Constitution. He has all the rights, under the Constitution.” He added, “We don’t shred the Constitution when it’s popular. We do the right thing.” Kilmeade suggested that Beck’s approach could risk the lives of his family.
[…]
Sen. John McCain: ‘Serious Mistake’ Appearing on the radio show Imus In The Morning, McCain warned, “Obviously that would be a serious mistake…at least until we find out as much information we have. … Don’t give this guy his Miranda rights until we find out what it’s all about.”
Rep. Peter King: Should Have Talked to Intelligence Community First The New York Republican worries, “Did they Mirandize him? I know he’s an American citizen but still. … I hope that if they did read him his rights and if they are going for an indictment as opposed to a tribunal that he did discuss it with the Director of National Intelligence, the Central Intelligence Agency, all the component parts of the intelligence community.”
Sen. Joe Lieberman: Remove His Citizenship Appearing on Fox News, the Connecticut Independent suggested a process to strip “American citizens who choose to become affiliated with foreign terrorists” of their U.S. citizenship, which would presumable include their Miranda rights. He asked “whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.”
John McCain, who might have been elected President last year, thinks that according American citizens their constitutional rights is a “terrible mistake.” Presumably he still thinks so despite the fact that Faisal Sharad, after being given the Miranda warnings, promptly spilled his guts. Not merely did he confess, he apparently gave up the names of at least eight associates who have now been arrested by Pakistani police.
The fervent desire on the extreme right wing – which is to say, at the center of the Republican Party – to allow terrorists to bluff us out of our way of life ought to seem puzzling. The world is full of third-world dictatorships where the secret police get to hold enemies of the state incommunicado and torture them. I have no desire to live in such a place. If John McCain’s tastes are different, no doubt Saudi Arabia would be delighted to have him as a subject.
Look, I know McCain’s in a tough primary and has to prove himself to the far-right, but this Miranda-related demagoguery is growing stale.
Najibullah Zazi was Mirandized, and the entire case went beautifully. Umar Farouk Abdulmutallab was Mirandized, and the results have been excellent. When shoe bomber Richard Reid was taken into custody, the Bush/Cheney administration read him his rights five minutes after he was taken off the plane he tried to blow up, and McCain never said a word. It’s been standard practice, especially with American citizens upon their arrest, for years — spanning administrations of both parties.
Can’t McCain just let the grown-ups do what they do without offering suggestions from the peanut gallery? The Joint Terrorism Task Force caught the suspect 48 hours after the attempted bombing; the frequently-confused Arizonan should probably trust them to know how best to proceed.
“I hope that [Attorney General Eric] Holder did discuss this with the intelligence community. If they believe they got enough from him, how much more should they get? Did they Mirandize him? I know he’s an American citizen but still,” King told POLITICO.
“I know he’s and American citizen, but still” really says it all, doesn’t it?
Half our political leadership wants a banana Republic, and our media is just treating it like it is another opinion. At what point do we start calling these people what they are?
And I just don’ know what to say about the obviously insane John McCain. You would think that someone who spent half a decade in a cage with no rights whatsoever in the defense of this nation and our laws and legal tradition and way of life, would have the slightest bit of respect for the rule of law. You would, of course, be wrong.
Anyway, this isn’t a case of a non-citizen captured overseas as an illegal combatant, or even one of a non-citizen captured here: there are existing Constitutional mechanisms in place. Including this one:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
Of course, that assumes that this administration will seek to have this man charged and tried with what is unambiguously a capital crime. I leave it to the reader to contemplate the implications of a refusal to do so.
Shahzad is an American citizen, arrested by law enforcement in America. As a US citizen, Shahzad has the right to remain silent. In that sense, he differs from the EunuchBomber, who attempted to enter the country (our airspace) to conduct a sabotage mission for an enemy of the US. Ambdulmuttalab should have immediately been taken into custody by military and intelligence agencies, not the FBI, in order to make his status as an enemy combatant clear.
First of all, it is never a “mistake” to follow the law. Mr Shahzad is an American citizen, and even if he had murdered thousands, he would still be entitled to the protections guaranteed under our Constitution.
And yet, this is one instance where the “ticking bomb” scenario might very well be a reality. Newsweek reports there may be a connection between Shahzad and the Pakistani Taliban leader Hakimullah Mehsud:
A prominent expert on Jihadist media says there is an apparent link between the new video message in which Pakistani Taliban leader Hakimullah Mehsud, once thought to have been killed, proclaims he is still alive, and a message posted overnight Saturday in which the Pakistani Taliban appears to claim credit for the failed Times Square car bomb attack.
Rita Katz, founder of the Site Intelligence Group, a private organization that monitors and translates extremist Web postings, late on Monday outlined a timeline her organization put together that suggests that the Hakimullah video and the U.S. attack claim were both posted, at least on some sites, by the same person or persons.
Terrorists are notoriously full of bombast but just for the record, Meshud made some bloodthirsty threats toward America in his latest video:
In the videos, Hakimullah Mehsud vows attacks on U.S. cities, which he says his suicide bombers have penetrated. The videos provide the first solid evidence that he survived the missile strike, and they come after the Pakistani Taliban’s widely dismissed claim of responsibility for the failed attack in New York’s Times Square. In that case, authorities were zeroing in on a naturalized U.S. citizen from Pakistan. A suspect was arrested late Monday, though reports of his ties to extremist groups in Pakistan could not be substantiated.
Might there be other terrorists in other major American cities waiting to strike as I write this? And would that be a good enough excuse for the government to arbitrarily waive Mr. Shahzad’s Constitutional rights, designate him an “enemy combatant,” and interrogate him using all legal means at our disposal (I take it as a given that President Obama has rejected “enhanced interrogation” as an option)?
For some on both sides of the argument, this is an easy question to answer in the affirmative or negative. However, knee jerk ideological reactions from civil liberties absolutists or bloodthirsty right wingers are just not good enough in this situation.
The threat is real and immediate. Hundreds – perhaps thousands – of American lives may be at stake. Wouldn’t it be easier just to forget the Constitution in this one instance and treat this terrorist as the enemy he himself claims to be?
It would be easier. But would it be the right thing to do? I daresay if there is another terrorist attack – this one successful – and we followed the law to the letter by allowing the suspect to remain silent despite the fact that it is later revealed he could have given us information that would have stopped the attack, the political ramifications would be severe. And the fact that our police obeyed the Constitution would give cold comfort to the families of those who lost a loved on in a preventable attack.
It’s an easy choice – unless you lose someone because of that choice. Then it becomes a little more complicated, yes? Or, on the other side of the coin, if Mr. Shahzad knows nothing of any other attacks and precious little about his overseas connections, violating his constitutional rights would be seen as dramatic overkill. The law would have been violated for, what in retrospect, would be seen as no good reason.
You might argue that postulating outcomes is a fool’s game and that holding fast to Constitutional principles or making the exception in Shahzad’s case is a decision for the moment and no thought should be given to relative consequences. I disagree. This decision would be all about “relevant consequences.” If we violate the suspect’s Constitutional rights and the information we are able to wean out of him prevents an attack, is that justification for tossing the Constitution aside? Or if he has no information relevant to accomplices or other plots, must we automatically assume that what was done was a travesty?
Herein lies the conundrum over Mirandizing Shahzad. Whether we do or don’t, our actions will have profound consequences. Even if no other terrorist attacks are being planned, finding that out is almost as important as discovering another plot to kill Americans. And as with any other decisions made by policymakers, the potential harm must be weighed against any positive outcome to their actions.
First off, we can’t designate American citizens as “enemy combatants.” The Supreme Court has made that quite clear, in case it wasn’t absolutely obvious upon reading the Bill of Rights. Second, while the Constitution isn’t a suicide pact, it is supposed to limit government’s powers over its citizens. Rule of law and all that. Third, lest we forget, Shahzad is merely accused of a crime. The government not infrequently accuses the wrong people. Even, it turns out, for terrorism.
Now, I suppose, if the president or the attorney general felt strongly enough about the matter, they could order their subordinates to flout the law. But that would mean that Shahzad would be much harder to jail. And it would mean possible criminal charges against those ordering the unconstitutional acts and those carrying out those unlawful orders.
But let’s be clear: Just as I didn’t trust President Bush, for whom I voted twice, to decide when to deprive citizens of their rights, I don’t trust his successor. And neither should you. That is, after all, the very definition of absolute power. And we all know what that does.
Judge Walker just issued the following ruling in the al-Haramain case:
The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.
In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.
Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”
I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.
As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.
The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.
That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.
But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.
He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.
These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.
If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?
Four quick bullet points on Judge Vaughn R. Walker’s decision today in Al-Haramain Islamic Foundation v. Barack Obama. (See pdf of ruling here.)
1. The judge’s opinion is pointed and fiercely critical of the Obama Administration’s Justice Department lawyers. At one point the judge dismisses the government’s “impressive display of argumentative acrobatics.” At another point, the judge says the government’s arguments “take a flying leap and miss by a wide margin.”
2. The judge claims that the Obama Administration is attempting to place itself above the law. “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the [State Secrets Privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for the executive branch abuses of surveillance authority.” He dismisses this argument.
3. It is difficult to square the Justice Department’s use of State Secrets in this case with President Obama’s stated position on state secrets. In a press conference on April 30, 2009, Obama said the following:
I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.
On a positive note, the Obama administration suffered a major defeat today in its efforts to shield Bush lawbreaking from judicial scrutiny. As Marcy Wheeler reports, District Judge Vaughn Walker ruled today in favor of the plaintiffs in the Al-Haramain case, who allege that they were subject to Bush’s illegal eavesdropping program. For more on the background of this case and the Obama DOJ’s extraordinary efforts to compel dismissal of this lawsuit (on both secrecy and standing grounds), see here and here. I’ll likely have more on this shortly.
The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.
As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.
The case involved the Al-Haramain Islamic Foundation, an Islamic charity, and two of its lawyers, Wendell Belew and Asim Ghafoor, who alleged their conversations were illegally intercepted. The Court granted their motion for summary judgment finding the Government is liable for damages for illegally wiretapping their conversations without a FISA warrant.
Judge Walker likened the department’s legal tactics as “argumentative acrobatics.” He said counsel for attorneys Wendell Belew and Asim Gafoor are free to request monetary damages.
Their lawyer, Jon Eisenberg, said in a telephone interview that “the case is not about recovering money.”
“What this tells the president, or the next president, is, you don’t have the power to disregard an act of Congress in the name of national security,” Eisenberg said.
Because of the evocation of the state secrets privilege, Walker had ruled the lawyers must make their case without the classified document. So Eisenberg amended the case and cited a bevy of circumstantial evidence (.pdf). Walker ruled that evidence shows that the government illegally wiretapped the two lawyers as they spoke on U.S. soil to Saudi Arabia. Walker said the amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity for which the lawyers were working, including a speech about their case by an FBI official.
Under Bush’s so-called Terrorist Surveillance Program, which The New York Times disclosed in December 2005, the NSA was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Congress, with the vote of Obama — who was an Illinois senator at the time — subsequently authorized such warrantless spying in the summer of 2008.
The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the Bush administration in illegal wiretapping.
What seems immediately significant to me about this ruling, beyond calling into question the legality of the warrantless wiretapping program, is that unless the government appeals, it will be beyond argument that both administrations have been abusing the state-secrets privilege by using it to prevent scrutiny of illegal behavior by the government.
In 2006, Al-Haramain sued then-President George W. Bush and other top officials after the government mistakenly provided the charity with classified documents that supposedly prove it had been illegally surveilled. A district court judge initially ruled that Al-Haramain could use those documents in its case. Eventually, however, the courts decided that the “state secrets” clause precluded the charity from using the classified documents at trial—a defeat that some observers thought would be fatal to the lawsuit.
Instead of giving up, Al-Haramain and its lawyers tried a different tack, gathering ten times as much unclassified evidence as they had previously submitted. The government, in a tiff, refused to submit evidence contradicting the plaintiffs’ claims, and even tried to claim that it didn’t have to. Walker didn’t like that argument too much: Because the government refused to submit any evidence calling the plaintiffs’ case into question, he simply granted summary judgment—a sort of TKO.
A day after a conservative group released a video condemning the Justice Department for refusing to identify seven lawyers who previously represented or advocated for terror suspects, Fox News has uncovered the identities of the seven lawyers.
The names were confirmed by a Justice Department spokesman, who said “politics has overtaken facts and reality” in a tug-of-war over the lawyers’ identities.
“Department of Justice attorneys work around the clock to keep this country safe, and it is offensive that their patriotism is being questioned,” said Justice Department Spokesman Matt Miller.
The video by the group Keep America Safe, which dubbed the seven lawyers “The Al Qaeda 7,” is the latest salvo in a lengthty political battle.
For several months, Sen. Chuck Grassley (R-IA) has led an effort to uncover politically-appointed lawyers within the Justice Department who have advocated for Guantanamo Bay detainees or other terror suspects.
“The administration has made many highly questionable decisions when it comes to national security, ” Grassley said in a recent statement. “[Americans] have a right to know who advises the Attorney General and the President on these critical matters.”
An extensive review of court documents and media reports by Fox News suggests many of the seven lawyers in question played only minor or short-lived roles in advocating for detainees. However, it’s unclear what roles, if any, they have played in detainee-related matters since joining the Justice Department.
The names of the seven DOJ lawyers who represented or advocated for Guantanamo Bay detainees have been uncovered by Fox News and confirmed by the Justice Department. Looks like great investigative work from Fox. And they play it pretty even, saying that most of the lawyers in question “played only minor and short-lived roles in advocating for detainees,” and pointing out that the Bush Justice Department employed lawyers who had been similarly engaged.
The one exception might be Assistant Attorney General Tony West, who works in DOJ’s Civil Division. West represented “American Taliban” John Walker Lindh for several years.
In Liz Cheney’s worldview, Rudy Giuliani is a disloyal al Qaeda sympathizer.
Let us explain.
Yesterday, Cheney’s outfit, a group called Keep America Safe, went up with a blistering ad that attacked Justice Department lawyers who previously represented Guantanamo detainees and are now working on detainee issues. The ad dubbed the lawyers “the Al Qaeda Seven” and asked “whose values do they share?” while flashing an image of Osama bin Laden.
It turns out that among the many high-profile lawyers who have represented so-called “terrorist detainees” is a top attorney with Rudy Giuliani’s firm, Bracewell Giuliani, according to court documents examined by TPMmuckraker.
Bracewell Giuliani Attorney Carol Elder Bruce, a distinguished white collar litigator, is listed as counsel in two detainee habeas cases, EL-MASHAD et al v. BUSH et al and ALLADEEN et al v. BUSH et al. Both are in the U.S. District Court in the District of Columbia.
El-Mashad, an Egyptian national who was captured near the Pakistan-Afghanistan border in late 2001, was released to Albania late last month.
To be clear, there is absolutely nothing wrong with attorneys representing detainees. In fact, the work — usually done on a pro bono basis — is seen by many as admirable.
As the DOJ pointed out in a letter to Republican senators who argue that lawyers who represented detainees have a conflict of interest, at least 34 of the 50 largest U.S. law firms have either represented detainees or filed amicus briefs in support of detainees.
Senator Charles Grassley, Republican of Iowa, has been relentless in trying to determine which lawyers at the Department of Justice previously defended, advocated for or worked on issues pertaining to Guantanamo Bay detainees and other alleged terrorists. While he’s at it, he may want to expand his inquiry — to the halls of the White House itself.
At least two attorneys hired to serve in the White House counsel’s office — part of President Obama’s in-house team of legal advisers — represented Guantanamo detainees in their previous legal careers.
While an associate at the Washington office of the prestigious law firm Wilmer Cutler Pickering Hale & Dorr, Michael Gottlieb — tapped for a White House associate counsel position — was part of the team that successfully argued on behalf of alleged terrorist Lakhdar Boumediene (of Boumediene v. Bush fame).
And while a student at Yale Law School, one of Gottlieb’s fellow associate counsels, Jonathan Kravis, volunteered his time as part of the team that ultimately secured legal victory for alleged Yemeni terrorist Salim Hamdan in Hamdan v. Rumsfeld.
The “Gitmo Nine” aren’t terrorists. They weren’t captured fighting for the Taliban. They’ve made no attempts to kill Americans. They haven’t declared war on the United States, nor have they joined any group that has. The “Gitmo Nine” are lawyers working in the Department of Justice who fought the Bush administration’s treatment of suspected terrorists as unconstitutional. Now, conservatives are portraying them as agents of the enemy.
In the aftermath of September 11, the Bush administration tried to set up a military-commissions system to try suspected terrorists. The commissions offered few due process rights, denied the accused access to the evidence against them, and allowed the admission of hearsay — and even evidence gained through coercion or abuse. The Bush administration also sought to prevent detainees from challenging their detention in court. Conservatives argued that the nature of the war on terrorism justified the assertion of greater executive power. In case after case, the U.S. Supreme Court sided with the administration’s critics.
“These lawyers were advocating on behalf of our Constitution and our laws. The detention policies of the Bush administration were unconstitutional and illegal, and no higher a legal authority than the Supreme Court of the United States agreed,” says Ken Gude, a human-rights expert with the Center for American Progress, of the recent assault on the Justice Department. “The disgusting logic of these attacks is that the Supreme Court is in league with al-Qaeda.”
The attorneys who challenged the Bush administration’s national-security policies saw themselves as fulfilling their legal obligations by fighting an unconstitutional power grab. At heart, this was a disagreement over process: Should people accused of terrorism be afforded the same human rights and due process protections as anyone else in American custody? But rather than portray the dispute as a conflict over what is and isn’t within constitutional bounds, conservatives argue that anyone who opposed the Bush administration’s policies is a traitor set to undermine America’s safety from within the Justice Department.
“Terrorist sympathizers,” wroteNational Review‘s Andrew McCarthy in September, “have assumed positions throughout the Obama administration.”
[…]
By this point the rest of the conservative media had begun taking up the cause, referring to the lawyers Weisch had mentioned as “The Gitmo Nine.” At the Washington Examiner, Byron York accused Holder of “stonewalling” Congress. “Who are the Gitmo 9?” McCarthy demanded to know from his perch at National Review. Then, last Friday, Republicans responded to Weisch, accusing the Justice Department of being “at best nonresponsive and, at worst, intentionally evasive.” The Washington Times followed up, echoing McCarthy’s demand for the identities of the so-called Gitmo Nine. By that point, two Justice Department lawyers, Deputy Solicitor General Neal Katyal and Human Rights Watch former senior counsel Jennifer Daskal, had already been identified. Unlike the Republican senators, whose concerns were centered around “potential conflicts of interest,” the Times editorial argued that “the public has a right to know if past work for terrorist detainees has biased too many of Mr. Holder’s top advisers.” It was a delicate way of suggesting that lawyers who were holding the government to its constitutional obligations were in fact, if not agents of, sympathetic to al-Qaeda.
On Tuesday, all attempts at subtlety were abandoned. Keep America Safe, the conservative advocacy group which was founded by Liz Cheney to defend torture and oppose civilian trials for suspected terrorists and which has close ties to McCarthy, turned the “Gitmo Nine” into the “al-Qaeda Seven.” The group put out a Web video demanding that Holder name the other Justice Department lawyers who had previously represented terrorist detainees or worked on similar issues for groups that opposed the Bush administration’s near-limitless assumption of executive power. “Whose values do they share?” a voice asks ominously. “Americans have a right to know the identity of the al-Qaeda Seven.” The ad echoed McCarthy’s references to the “al-Qaeda bar” from months earlier.
“This is exactly what Joe McCarthy did,” said Gude. “Not kind of like McCarthyism; this is exactly McCarthyism.”
The attorneys who secured greater due process rights for detainees weren’t attempting to prevent terrorists from being punished — they were attempting to prevent the government from assuming limitless power to imprison people indefinitely based on mere suspicion. Not all of those fighting the Bush administration’s policies even believed that terrorists should be tried in civilian courts. Katyal, who litigated the 2006 Hamdan v. Rumsfeld case in which the Supreme Court decided in the detainees’ favor, advocated for using military courts martial — and later, authored an op-ed for TheNew York Times alongside former Bush lawyer Jack Goldsmith arguing for a new “national security court” to try terrorists. Still, Katyal held that Bush’s general policy for trying terrorists “closely resemble those of King George III.”
You have a right to know. Now you do, thanks to the news organization that the White House communications team has spent the last year trying to delegitimize.
“Neal in particular was and is one of the sharpest and hardest-working attorneys I’ve known in the 27 years I’ve been practicing law,” said Davis, who supervised prosecutions at Guantanamo from 2005 to 2007. “It is absolutely outrageous for the Cheney-Grassley crowd to try to tar and feather Neal and Jennifer and insinuate they are al-Qaeda supporters. You don’t hear anyone refer to John Adams as a turncoat for representing the Brits in the Boston Massacre trial.” Davis, of course, opposed Katyal on the famous case of Guantanamo Bay detainee Salim Ahmed Hamdan’s habeas corpus rights — a case that Katyal won in the Supreme Court, striking down the first iteration of the military commissions. “He was the epitome of professionalism, and I can’t say that about a lot of the folks involved” in the commissions, Davis continued.
“If you zealously represent a client, there’s nothing shameful about that,” said the retired Air Force colonel. “That’s the American way.”
Do “war on terror” detainees deserve full constitutional rights? My hunch is that most Americans would say no. And, ironically, so has Neal Katyal, when it comes to the detainees held at Bagram. Katyal has reportedly defended the indefinite detention of terrorist suspects as a member of the Obama administration.
This speaks well of Katyal as it shows he is capable of making a responsible national security argument. Katyal’s defenders say he has always seen a difference between Bagram and Guantanamo because, well, one is at an airbase in Cuba and the other is the middle of a warzone in Afghanistan.
But leave it to a lawyer to argue that the Constitution is under assault if detainees are tried by a military commission in Cuba, while everything is just fine if (all else equal) they are held indefinitely without habeas rights in Afghanistan.
One other note about Katyal: He has lamented the slow pace at which the military commissions moved during the Bush years. And they certainly did move at a snail’s pace. But as Time magazine has reported, Katyal helped build “a defense that delayed Hamdan’s military tribunal for years as it gradually made its way through the courts.” That is, those delays are owed, in large part, to Katyal’s handiwork.
[…]
Other lawyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees’ right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda’s secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).
Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.
We all have a tendency to look back on shameful events in our nation’s history — slavery, the internment of Japanese-Americans, the McCarthyite witch hunts — and like to believe that we would have been on the right side of those conflicts and would have vigorously opposed those responsible for the wrongs. Here we have real, live, contemporary McCarthyites in our midst — Liz Cheney and Bill Kristol — launching a repulsive smear campaign, and we’ll see what the reaction is and how they’re treated by our political and media elites.
Michael Oren, the Israeli ambassador to the U.S., tried to give a speech at UC Irvine but was shouted down by Muslim protesters, who apparently weren’t equipped to argue with Oren, just drive him from the stage. All this is par for the course, but I did find this one bit of information amusing:
The Muslim Student Union said in its statement: “We strongly condemn the university for cosponsoring, and therefore, inadvertently supporting the ambassador of a state that is condemned by more UN Human Rights Council resolutions than all other countries in the world combined.”
To the Muslim Student Union, the fact that the UN Human Rights Council has condemned Israel more than all the other countries of the world combined means that Israel is worse than all the other countries of the world combined. To more rational, less prejudiced people, this fact means that the UN Human Rights Council is not a serious organization, but one under the control of dictators and despots.
A young man began the outbursts with the slogan “Michael Oren! Propagating murder is not an expression of free speech!” As the Post’s report indicates, the man’s words echoed a statement released by the university’s Muslim Student Union prior to Oren’s appearance. The statement said: “As people of conscience, we oppose Michael Oren’s invitation to our campus. Propagating murder is not a responsible expression of free speech.” I rashly conclude that the agitators who disrupted Oren’s address were taking their cues from the Muslim Student Union.
The University of California Irvine has a severe free speech problem and has had one for a long time. Part of this stems from the school’s history of what is politely called multi-culturalism – actually a euphemism for cultural relativism, a bankrupt pseudo-philosophy that provides a phony intellectual veneer to totalitarian behavior. Another part is good, old-fashioned anti-Semitism, which seems to be cropping up everywhere these days. A third part is even more old-fashioned cowardice, working in tandem with the other two.
School officials say they were embarrassed. They should be a lot more than that. They should rectify this situation immediately and in a serious way, because this is a serious case of racism. The reputation of the whole University of California system is at risk here in an era when taxpayers are in a justifiably rebellious mood. Given what’s happened, outside the sciences, it’s hard to regard Irvine as a legitimate educational institution. Why would any of us pay for what is happening there? The California Board of Regents and the administration of UCI should think about that.
One of my fond memories from being an undergraduate in the early 1990s was the fervent conviction of the campus left that their opponents were not entitled to express their beliefs. Some of the more erudite among them, like Catherine MacKinnon, would formulate elaborate theories explaining why freedom of speech was a pernicious myth. But mostly the opinion took the form of slogans. Racism is not free speech. Sexism is not free speech. And since anybody to the right of, oh, Ralph Nader was a racist and a sexist, then that meant that nobody outside of the left-wing ought to be permitted to express themselves.
The principle, if you can call it that, was on display at Israeli Ambassador Michael Oren’s speech at the University of California-Irvine. I’m not a big Michael Oren fan, but this display of protesters disrupting his remarks is rather telling
It was a hastily written ruling by Supreme Court standards, and it carried a dissent almost equal in length to the majority’s opinion. But the 5 to 4 decision the court issued late Wednesday blocking the broadcast of a federal trial about the constitutionality of same-sex marriage is being scoured by legal analysts and activists for deeper meaning.
Many are finding a hint of sympathy for those who oppose same-sex marriage. An unmistakable worry about how cameras could transform what the ruling called the “orderly, decorous, rational traditions” of the courts. Some even detect a whiff of Bush v. Gore.
“It is almost classic Freudian,” said Andrew Koppelman, a law professor at Northwestern University, “in that it is talking about one thing, but really seems to mean something else.”
Although the ruling went out of its way to emphasize its own limits — “Our review is confined to a narrow legal issue,” the majority said — the ideological split in voting drew speculation about what it portended for a court that is likely to decide the constitutionality of same-sex marriage.
“If there had been a mixture of ideologies on each side, this would have been less remarkable,” said Dale Carpenter, a civil rights and constitutional law professor at the University of Minnesota.
The court held that federal judges in California had violated their own rules by allowing video feeds from a San Francisco trial examining a challenge to California’s Proposition 8, which voters approved in 2008 to amend the state constitution to forbid same-sex marriages.
The majority said the presiding judge, Vaughn R. Walker, and the chief judge for the U.S. Circuit Court of Appeals for the 9th Circuit, Alex Kozinski, had pushed through “eleventh-hour” changes to the court’s rules to transmit the proceedings to five courthouses around the nation and, perhaps, to post video on the court’s Web site.
Although the main opinion was unsigned, the facts that the order divided the Court 5-4, and that the dissenters were identified, indicated that Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas made up the majority. Justice Stephen G. Breyer, the only member of the Court to dissent from Monday’s order, wrote the dissenting opinion Wednesday, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and John Paul Stevens. Thus, the ruling split the Court along the customary conservative-liberal divide.
The main opinion sought to portray the Court’s action as limited in scope. Aside from saying that it was not taking any position “on the propriety of broadcasting court proceedings generally,” it said it was only blocking the streaming of video and audio of the trial proceedings to federal courthouses other than the one in San Francisco where the trial is being held. Thus, it added, it was not ruling on plans — not yet finalized — to permit broadcast on the Internet, through YouTube or otherwise, since “this may be premature.”
The ruling touched off a basic dispute within the Court over its power to take the action that it did. The majority opinion found the authority under its own Rules and under a more general “supervisory power” over lower courts. The Court said that it “may use its supervisory authority to invalidate local rules that were promulgated in violation of an Act of Congress.” The majority suggested that the trial judge had violated a law that requires public notice and a time to comment before federal court rules may be changed.
Prior to Wednesday’s decision, the only entity within the federal judiciary that had tried to stop the TV broadcasts of the trial was the U.S. Judicial Conference, through two of its officers, citing an anti-TV policy the Conference adopted years ago. But the main opinion of the Court conceded that Judicial Conference policies “may not be binding in the lower courts.” Even so, it added, those policies “are at the very least entitled to respectful consideration.” On Wednesday, the Court used its “supervisory authority” to make the anti-TV policy binding at least in this one instance.
The dissenters on Wednesday directly questioned whether the Court had the authority to block the broadcasting plan. Justice Breyer wrote that the new ruling was a move to “micromanage district court administrative procedures in the most detailed way.” He added that “it is inappropriate as well as unnecessary for this Court to intervene,” and went on to argue that there were other entities within the U.S. judiciary that should be handling such matters, “not this Court.”
Contending that the move was without precedent, Breyer wrote: ”I have not been able to find any other case in which this Court has previously” intervened in such matters of local court administration. He quoted a comment made in an earlier case by Justice Scalia, saying “I do not see any basis for any direct authority to supervise lower courts.”
The majority and dissent, of course, disagreed fundamentally on whether the Prop. 8 proponents had at this point made the case for even a temporary order to block the televised viewing outside the San Francisco federal courthouse. The majority found strong support for the claim, and the dissenters found none.
But the high court did accept the controversial claim by opponents of broadcasting the California trial that “irreparable harm” would result from wide broadcast of the trial, because of possible witness harassment and intimidation. Proponents of Proposition 8, who opposed the telecast, based their request for a stay on the potential harm to witnesses who they say have already been threatened for publicly opposing gay marriage. “It would be difficult — if not impossible — to reverse the harm from the broadcasts,” the Court wrote.
The Court noted that in 1996, the last time the Judicial Conference addressed the issue of cameras in the federal courts, it concluded that potential intimidation of witnesses and jurors was “cause for concern.” While the conference’s policy against broadcast of trials is not binding on the lower courts, the Supreme Court said, it was at least entitled to “respectful consideration” before the district court changed its rules.
Because of these observations among others in the Court’s ruling, it would be hard to interpret it as anything other than a setback for advocates of broadcast access to federal courts — except for the fact that four justices dissented.
Justice Stephen Breyer dissented, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor. Breyer wrote that the district court had given ample notice of its proposed rules, and received more than 130,000 comments in recent weeks favoring the plan to televise the trial. Breyer said it was “inappropriate as well as unnecessary” to interfere with local judicial administration. He also dismissed the Court’s claim of irreparable harm to witnesses, noting that 42 states and two federal trial courts have allowed broadcast of trials without empirical evidence of substantial harm.
“The public interest weighs in favor of providing access to the courts,” wrote Breyer, asserting that the public is interested in “observing trial proceedings to learn about this case and about how courts work.”
To be sure, there have been claims that some of the witnesses defending Proposition 8 have been harassed and embarrassed. But some of them are paid experts, and some have appeared on television. All will be named and quoted in the newspaper, radio, live-blogging, and Twittering that has poured out of Walker’s courtroom. And the law provides that any witness who feels particularly vulnerable about television broadcast has recourse to judicial protections. But the Supreme Court’s wholesale acceptance of the argument that every last one of these witnesses is a victim-in-waiting is daft—as well as bristling with hostility toward the American public.
Putting aside the merits of the gay-marriage trial itself, in this new decision the Supreme Court has revealed something profound about its view of the American people. One cannot argue that the majority of California citizens wanted to ban gay marriage and should be respected while also claiming that supporters of such an initiative are a fragile, oppressed minority who must testify in dark sunglasses in dark rooms. Opponents of gay marriage can’t have it both ways. If they want to say that unelected federal judges cannot subvert the will of John Q. Voter, then they cannot also insist that John Q. Voter be banned from witnessing federal judges at work. In the campaign over this ballot initiative, both sides spent close to $74 million on competing ads to “educate” voters about gay marriage. In many ways, broadcast and the masses caused Proposition 8 itself. It’s awfully late now to claim that there’s no place for broadcast television in this fight.
In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?
Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”
The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.
In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.
There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.
I’ll have more to say on the broader ramifications of this order on Bench Memos once I’ve reviewed it and the accompanying opinion. For now, I’ll just observe that this is a significant, and well-deserved, victory for counsel for the sponsors of Proposition 8, led by Charles J. Cooper of Cooper & Kirk.
Update: I’ve now read the excellent per curiam majority opinion. The majority (the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito) rules that Judge Walker’s broadcast order should be stayed “because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting” and because irreparable harm would result from the denial of the stay. I’m pleased to say that the Court’s analysis is very much along the lines that I’ve spelled out in my recent NRO essay—“Staging a Show Trial on Same-Sex Marriage”—and in my Bench Memos posts. (Those lines were, of course, developed much more elaborately in the brief filed by counsel for the sponsors of Proposition 8.)
Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws. In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.
The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.
It looks like we’ll soon find out; the Supreme Court has accepted cert on McDonald v. Chicago, a gun rights case brought by Alan Gura, the lawyer who won the Heller case. The court has been dodging the twin questions of whether the Second Amendment protects an individual right to bear arms, and whether it can be incorporated against the states, for decades. It looks like the question will finally be settled–at least as much as Supreme Court decisions ever settle things–in the next year.
Thus, the so-called incorporation doctrine will be at issue in this case – the question of whether the Fourteenth Amendment “incorporates” the guarantees of the Bill of Rights against the states. The Bill of Rights applied originally only against the federal government. But the Fourteenth Amendment, ratified in 1868, left open the question of which rights states were bound to recognize. The modern Court has incorporated most of the rights found in the Bill of Rights, but the Second Amendment’s guarantees have yet to be incorporated.
Moreover, a question that will arise in this case is whether the Court, if it does decide that the states are bound by the Second Amendment, will reach that conclusion under the Fourteenth Amendment’s Due Process Clause or under its Privileges or Immunities Clause, which has been moribund since the infamous Slaughterhouse Cases of 1873. In its brief urging the Court to hear the McDonald petition, the Cato Institute urged the Court to revive the Privileges or Immunities Clause.
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 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?
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.
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?
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.
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.
[…]
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.
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.
Just when you thought the debate about health care reform couldn’t get more obscure—is a co-op a public option? Will the CBO rescore the chairman’s mark?—the Senate finance committee turned Wednesday morning to an even more arcane subject. It spent more than an hour arguing about whether to use “conceptual” or “legislative” language in the bill they will, one day, perhaps even in the year 2009, vote on.
This may sound unimportant. Or, like discussions about fonts, it might seem deeply important to a fevered few. It’s not. The debate touches on a familiar complaint that members of Congress don’t read the legislation they vote on. Just because it’s familiar, however, doesn’t mean the complaint has merit.
By custom, the finance committee uses “conceptual language”—also known as plain English—for a couple of reasons. One, at least in this case, the legislative language doesn’t yet exist: There are 500-plus amendments to the bill, and they aren’t yet in final form. Two, it uses plain English because the issues it is talking about are complicated and technical. (See an example here.)
So using “conceptual language” (found here) actually makes it more likely that members (and the public) can understand what’s being debated. After everyone agrees, the concepts are sent to the Legislative Counsel’s office and put into legislative language, which is debated and voted on.
[…]
Whether members of Congress are able to read the legislation is a separate issue from whether they are given enough time to consider it. When Obama aides crafted the stimulus bill, it was being pasted together so quickly even members who were on the committees authorized to write the legislation didn’t know what was in it. That kind of rush to completion is likely to happen this time with health care. That should embarrass President Obama, who talked about transparency so much during the campaign, but every indication suggests the White House will be untroubled by this inconsistency.
I am also not making an argument for stupidity or laziness. Just because a member of Congress hasn’t read a bill doesn’t mean he is excused from knowing what’s in the bill. A good senator follows the principles of good management, learning how to delegate and then demanding results from those he’s tasked with sifting through the legislative language. Walking out of a meeting with a senator last night, I encountered half a dozen policy aides headed in to brief him. I had no doubt from the previous off-the-record conversation that the senator knew the details of policy proposals, not because he’d read all the legislative language but because he quizzed his staff. His questions were informed by other kinds of reading—expert testimony, academic journals, and even news articles, which, one hopes, dear reader, are worth sticking with all the way to the end.
How about this? How about not writing that law at all? Only by twisting the Commerce Clause entirely out of its original intent can you come up with a federal power to regulate private emails or ISPs in the first place. The real problem isn’t that laws are too complicated, or entirely unreadable (although both are contributory to a general disdain for law) but that there are too damned many of them!
Two things to keep in mind: The “job” of Congress is not to write laws but to represent constituents, and simply because you can do something doesn’t mean you should do it. This goes doubly for those cases where the Constitution say you can’t do it, too.
Around The Sphere 