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Saturday, November 29, 2008
Gun Policy Debate in West L.A. Between Charles Blek (of the Brady Campaign) and Me this Coming Friday, Dec. 5, 12 noon:
The Federalist Society's L.A. Lawyers Chapter and the Libertarian Law Council are putting it on; Judge Kozinski will be moderating. The debate will be at the Spark Wood Fire Grill, 9575 W. Pico Bl., and will give lawyers one hour of MCLE credit; the cost of the lunch and the debate is $38 in advance, $40 at the door, and $15 for "public employees, students and law clerks."
Please send checks (made payable to the Federalist Society) to [Jeremy Rosen] at Horvitz & Levy LLP, 15760 Ventura Boulevard, 18th Floor, Encino, California 91436. Prepayment must be received no later than Wednesday, December 3rd [might be tough given this late post, sorry about that -EV]. You may reserve a place for payment at the door by calling BJ Strand at (818) 995-0800.
Attendance at the luncheon is not restricted to lawyers, and we would be delighted to
welcome any of your colleagues or friends who might be interested in attending.
Prop 8 chilling SSM efforts elsewhere:
The passage of Prop 8 in California is hurting the prospects for gay marriage elsewhere.
Take New York, for example. Last year the state assembly easily passed an SSM bill. It seemed the state senate would surely follow if Democrats gained a majority on Nov. 4, as they did with considerable financial backing from gay supporters. But now The New York Times is reporting that senate Democrats are having second thoughts about pushing for a vote in the next legislative session:
“We want to get there, but we want to get there the right way or else we risk setting ourselves back another decade,” said Senator Liz Krueger, a Democrat who represents the Upper East Side. “I think the California proposition and the recognition that entities with large amounts of money who oppose same-sex marriage have decided to be large players in this have a lot of people going back to the drawing board.”
There may still be a vote next year but the likelihood is now only 50-50. There are many factors involved in this, but Prop 8 has not helped. Many Democratic legislators know they can count on gay support, financial and otherwise, and have little personal stake in how soon SSM comes about. At the same time, they don't want to risk a backlash from voters or face a well-funded opponent in the next election. (On the other hand, no state assembly supporter of SSM was defeated on Nov. 4.) SSM opponents proved they can mobilize significant force, in terms of money and volunteers, when it really matters.
Then there's Washington, D.C. Less than two weeks ago, an openly gay city council member was predicting a vote in favor of SSM when the council meets next in January. Now reality is setting in, and reality is taking the form of a potential referendum in a city that is almost 3/5 black, a group that voted overwhelmingly to ban gay marriage in California. According to the Washington Blade:
“There needs to be a discussion within the community with a diverse group of people to make sure there’s a consensus to move ahead with this,” said Darrin Glymph, vice president of the Gertrude Stein Democratic Club, the city’s largest gay political group.
“Then, if you decide to go forward, you need to reach out to the entire D.C. community, including the faith community and the African-American community.”
Glymph and other black gay activists pointed to the approval by voters in California of Proposition 8 as an example of a failed strategy for reaching out to minority voters. . . .
A CNN exit poll showed that 69 percent of black voters in California supported Proposition 8; subsequent reports have suggested the number might be closer to 57 percent. . . .
With blacks making up nearly 57 percent of the population in D.C., black gay activists said gay marriage supporters must redouble their efforts to reach out to blacks and other minorities in the District.
“I don’t know if we can obtain the allies to help us defeat a referendum in the District,” said Carlene Cheatam, one of the founding members of the D.C. Coalition of Black Lesbian, Gay, Bisexual & Transgender Men & Women.
Again, there may still be a vote in DC next year, but the prospects appear dimmer.
All of this suggests that Prop 8 has had a political effect beyond its immediate legal one. Now, not even the California Supreme Court can completely undo the nationwide damage to the movement.
Why Obama's Position on Kelo Matters - Even if he Doesn't Have One:
Some commenters on my post about Barack Obama's apparent silence about Kelo v. City of New London fail to understand why his position on the case matters. After all, they say, politicians don't have to take positions on every US Supreme Court case, do they? The problem with this reasoning is that Kelo wasn't just any case. It drew a broader political backlash (opposed by over 80% of the public) and a bigger legislative response (43 states and the federal government enacted reform legislation) than any other Supreme Court decision in decades, if not in the entire history of the Court. As I noted in the previous post, numerous politicians - including many of Obama's fellow liberal Democrats, and many African-American leaders - took positions on Kelo (mostly against it). Obama's general election opponent John McCain also came out against Kelo.
Thus, it is not unreasonable to expect Obama to have a position on Kelo. That is especially true when we remember that Obama is a former constitutional law professor and an expert on the history of race and the law. As he likely knows (or at least should know, given his academic specialty), "economic development" takings of the kind Kelo upheld have often been used against the minority poor, a point emphasized by the NAACP among others.
Doctrinally, it is true, Kelo was consistent with previous Supreme Court public use precedents, such as Berman v. Parker and Hawaii Housing Authority. Far from trying to hide this fact, as a few of my critics allege, I have noted it in several articles (e.g. here and here). However, those earlier precedents themselves represented major departures from constitutional text and history, and were particularly extreme manifestations of the post-New Deal tendency to defer to the government on virtually all "economic" matters (a point well summarized in this article on Kelo by Vanderbilt lawprof Jame Ely, a leading historian of constitutional property rights). Kelo represented a major opportunity to rethink these aberrational precedents, at least to the extent of cutting back on their more sweeping assertions of virtually unlimited deference to the government. Essentially, Berman, Midkiff, and Kelo interpreted the term "public use" in the Fifth Amendment to mean "any potential benefit to the public, even if there is no proof that the benefit will actually occur." Eleven state supreme courts have banned economic development condemnations under state constitutional public use provisions worded very similarly to the federal one. Thus, unless you are a believer in very stringent adherence to precedent in constitutional cases regardless of the quality of that precedent's reasoning or the practical impact of keeping it, Kelo cannot be regarded as a typical case whose outcome was predetermined by indisputable past decisions.
Obama's apparent silence on Kelo is therefore telling. If he simply didn't consider the case important enough to take a position on, that suggests that he assigns a very low priority to property rights issues generally. If so, he is unlikely to either appoint pro-property rights judges or support property rights in the political process, as other of his statements suggest he might be inclined to do. If he kept silent because actually agrees with Kelo but didn't want to say so out of fear of offending public opinion, that is even worse news for property rights. Because Kelo licenses virtually any condemnation undertaken for almost any reason, it's logically very hard to endorse this decision without also opposing constitutional property rights across the board. And in fact four of the five justices who voted with the Kelo majority have consistently opposed property rights in virtually every relevant case heard by the Court over the last twenty years (a point I discuss in this article).
I'm not saying that Kelo and related property rights issues should be one Obama's highest priorities. However, if he has indeed maintained complete silence about Kelo, it does have important implications for his broader position on property rights.
UPDATE: To make things absolutely clear, I am not claiming that Obama should be expected to have a position on Kelo because he is black, and economic development takings disproportionately hurt minorities. I am claiming that his being a former professor of constitutional law specializing in racial issues is one of several reasons one could legitimately expect him to have expressed a view on the case. That would be no less true if he were a white lawprof specializing in the same subjects.
Habeas Porpoise - Marine Mammals vs. Navy Sonar:
I never got around to posting on Winter v. NRDC, the Navy's challenge to a federal court injunction limiting its use of sonar in training activities due to its failure to adequately assess the potential impacts of sonar use on whales under the National Environmental Policy Act (NEPA). The result — a 7-2 or 6-3 victory for the Navy (depending on how one counts Justice Breyer) — was not much of a surprise. Nor was the narrowness of Chief Justice Roberts' majority opinion. The Court side-stepped the potentially thorny (and quite interesting) separation of powers issue, focusing instead on how the lower courts' should have balanced the equities and the public interest in weighing NRDC's request for injunctive relief.
While Winter was a fascinating case, I don't think it will have much impact outside of the national security context. Few NEPA cases involve equally weighty government interests, so I doubt Winter will effect how lower courts weigh NEPA claims in more ordinary contexts. Further, environmentalist groups have never had much success advancing NEPA claims before the High Court — indeed, I don't think they've ever won a NEPA case there — so I don't think Winter sets them back all that much.
For more on the case, check out Jamie Colburn's post at Dorf on Law (from which the title of this post is taken). Related Posts (on one page): - Navy, NRDC Settle Whale Suit:
- Habeas Porpoise - Marine Mammals vs. Navy Sonar:
David Leonhardt’s review of Gladwell’s Outliers explains why this book gets under people’s skin.
It turns out that luck, not pluck, explains success. This thesis mirrors the old battle over criminal responsibility between conservatives who blame criminals and liberals who blame society.
“We look at the young Bill Gates and marvel that our world allowed that 13-year-old to become a fabulously successful entrepreneur,” he writes at the end. “But that’s the wrong lesson. Our world only allowed one 13-year-old unlimited access to a time-sharing terminal in 1968. If a million teenagers had been given the same opportunity, how many more Microsofts would we have today?”
Social engineering ought to eliminate crime and turn all of us into Bill Gates-—a Lake Woebegone-ish notion that in all markets, everyone should be a monopolist.
Perverse Incentives and Historic Preservation:
The perverse incentives created by uncompensated environmental land-use controls are well documented. The Endangered Species Act (ESA), in particular, is notorious for encouraging the destruction of species habitat on private land. By restricting the use of land with ecologically desirable characteristics, the ESA effectively punishes private landowners for maintaining habitat on their land. As a consequence, landowners often engage in preemptive habitat destruction to avoid the Act's proscriptions. I've written on this subject at length (see here and here).
The ESA is hardly the only law creating such perverse incentives, and not the only law that encourages the destruction of resources it is supposed to protect. Today's NYT reports on the "preemptive demolition" of historic buildings in New York City before they can be classified as landmarks. Basically, when developers learn that a building may be designated as a landmark -- a status that will restrict their ability to modify or renovate the building -- they rush to destroy the historic aspects of the building, if not the building itself. The strategy has become wearyingly familiar to preservationists. A property owner — in this case Sylgar Properties, which was under contract to sell the site to Related — is notified by the landmarks commission that its building or the neighborhood is being considered for landmark status. The owner then rushes to obtain a demolition or stripping permit from the city’s Department of Buildings so that notable qualities can be removed, rendering the structure unworthy of protection. . . .
The number of pre-emptive demolitions across the city may be relatively small, but preservationists say the phenomenon is only one sign of problems with the city’s mechanism for protecting historic buildings. . . .
In an interview Robert B. Tierney, chairman of the Landmarks Preservation Commission, called end-run alterations and demolitions “a terrible situation and a complete misuse of the process.”
He added that the commission was trying to address the issue. Before putting a property on the calendar for landmark consideration, for example, Mr. Tierney or the commission’s staff members meet with owners to explain the potential benefits of landmark designation —a federal tax credit for repairs or improvements, for example — in the hope of enlisting cooperation or even support.
“Owner consent is not required, but I strongly try to obtain it whenever possible,” Mr. Tierney said. “It helps the process going forward. It’s not a continually contentious relationship.” To address this problem, some members of city council want to tighten restrictions on landowners and make it more difficult to preempt regulation through renovation and demolition. One bill would "require the buildings department not only to withhold demolition permits but also to suspend existing ones and issue a stop-work order when the commission schedules a hearing to consider landmark status for a structure." This won't solve the inventive problem. Indeed, it's likely to make it worse by increasing the negative consequences of maintaining a building's historic characteristics and encouraging even early preemptive action.
Friday, November 28, 2008
New Terms of Use for the Volokh Conspiracy:
In light of the verdict in the Lori Drew case, I have decided to promulgate new Terms of Use for the Volokh Conspiracy. You are only permitted to visit the Volokh Conspiracy if you are in compliance with the Terms of Use. Any accessing the Volokh Conspiracy in a way that violates these terms is unauthorized, and according to the Justice Department is a federal crime that can lead to your arrest and imprisonment for up to one year for every visit to the blog.
By visiting this blog, you promise that: 1. You will not post comments that are abusive, profane, or irrelevant. Civil and relevant comments only, as indicated by our comment policy.
2. You are not an employee of the U.S. government. Yes, that includes postal service employees, law clerks, judges, and interns. We're a libertarian-leaning blog, and we're for the private sector only. Government types, keep out.
3. Your middle name is not "Ralph." I've always thought Ralph was a funny name, and even odder as a middle name. No one with the middle name "Ralph" is welcome here.
4. You're super nice. We have strict civility rules here, and this blog is only for people who are super nice. If you are not super nice, as judged by me, your visit to this blog is unauthorized.
5. You have never visited Alaska. Okay, this one is totally arbitrary, but it's our blog and we can keep out who we want. Alaska visitors are out, too. If you post an abusive comment; you are an employee of the U.S. government; your middle name is Ralph; you're not super nice, as judged by me; or you have visited Alaska, I have kinda bad news for you: You are a criminal, as you have just violated 18 U.S.C. 1030(a)(2)(C) by accessing the Volokh Conspiracy's service without authorization or in excess of authorization. You are only authorized to visit the blog in compliance with the Terms of Use, and by violating these terms you have become a criminal by essentially "hacking in" to the Volokh Conspiracy. Anyway, those are our new Terms of Use; it's our service, so we get to set them as we want them. Meanwhile, have a safe and happy Thanksgiving weekend, everyone.
Second Amendment Sales Tax Holiday in South Carolina:
The State reports:
Hunters and collectors can save some money on gun purchases today and Saturday as the state waives sales taxes on firearms....
State Rep. Mike Pitts, R-Greenwood, said he proposed the tax-free sales to celebrate the Second Amendment and respond to a then-pending U.S. Supreme Court decision on a Washington, D.C., handgun ban, which the court overturned....
The tax-free days also coincide with the opening of the duck and small-game hunting seasons this week, Pitts said.
“It’s to bring recognition that the Second Amendment of the Constitution is every bit as important as the First Amendment,” which establishes freedom of religion and speech, Pitts said. “It’s very much symbolic.” ...
Thanks to InstaPundit for the pointer.
Thursday, November 27, 2008
Thursday Song Lyric: We Gather Together
The great Dutch hymn "We Gather Together" celebrates Dutch victory in a battle of the war of independence from Spain. The hymn was adopted by Americans because it resonated so much with their own circumstances. It's a very relevant song this year, too, as the war between freedom and tyranny continues. Here's my VC post on the song, including the full lyrics, from 2005. And here's a good version of the song, from YouTube.YouTube has plenty of other versions too, if you want to hear pure organ music, or a church performance in Spanish.
Wednesday, November 26, 2008
Barack Obama and Constitutional Property Rights II - Obama's Apparent Silence about Kelo:
As I mentioned in my previous post on the subject, Barack Obama has expressed at least rhetorically strong support for constitutional property rights. On the other hand, it is striking that - as far as I know - Obama has never said anything about the Supreme Court's decision in Kelo v. City of New London, by far the best known and most widely criticized of the Court's recent property rights decisions. Obama's apparent silence is all the more notable in light of the fact that the decision was harshly criticized by numerous other liberal politicians and activists, including Bill Clinton, Ralph Nader, Maxine Waters, and Howard Dean (See Part I of this article for the relevant cites). Many African-American leaders were particularly critical, because as the NAACP emphasized in its excellent amicus brief in the case, "blight" and "economic development" takings often target the property of the minority poor.
If Obama has indeed been silent on Kelo, that may be an indication that his true level of support for constitutional property rights is actually quite weak. After all, if he's not willing to oppose an anti-property rights decision widely reviled by other liberals, it's doubtful that he would ever support property rights in other, more controversial contexts. Silence could even indicate that he actually agrees with the Court's decision but does not want to say so for fear of angering public opinion.
My searches of the Westlaw and Lexis databases, as well as Obama's campaign website, don't reveal any statements on Kelo one way or the other. However, it's possible that I have missed something in my research. If any of our readers have spotted an Obama statement on Kelo that I might have overlooked, please let me know.
What Does the Lori Drew Verdict Mean?:
For those trying to make sense of the mixed verdict in the Lori Drew case, here's a quick (and somewhat simplified) guide to what it means.
The government's theory in the Lori Drew case is that it is a federal crime to intentionally violate the Terms of Service on a website, and that it becomes a more serious crime — a felony rather than a misdemeanor — if the Terms of Service are violated to further a criminal or tortious act. The tortious act the government alleged is intentional infliction of emotional distress, which in this case was alleged to have led to Meier's suicide.
The jury agreed that it is a federal crime to intentionally violate the Terms of Service on a website, and that Drew directly or indirectly did so, but it acquitted Drew of having violated Terms of Service in furtherance of the tortious act. That is, the jury ruled that Drew is guilty of relatively lower-level crimes for violating MySpacs Terms of Service (for being involved in the setting up of a fake MySpace account). It acquitted Drew for any role in inflicting distress on Meier or for anything related to Meier's suicide. The maximum allowed penalty for the misdemeanor violations are one year in prison for each violation, although the majority of federal misdemeanors result in a sentence of probation.
The next step in the case is that the trial judge will rule on whether there was enough evidence for the jury to find that Drew violated the Terms of Service intentionally, or whether the TOS violation was only negligent or reckless or knowing. If the judge agrees that there was enough evidence for the jury to find that Drew violated the Terms of Service intentionally, the case will go on to sentencing for the crime of having violated MySpace's Terms of Service.
After sentencing, if that happens, the sentence will be followed by an appeal before the Ninth Circuit on the legal question of whether it is in fact a federal crime to violate the Terms of Service of a website. For those not following my coverage of the case, I am one of Drew's attorneys, and yes, if there is an appeal, I will be very heavily involved in it.
Lori Drew Jury Reaches a Verdict:
According to the Associated Press. The verdict has not yet been announced, but should be announced as soon as the court can reconvene. Also, note that in the event of a guilty verdict on some or all counts, Judge Wu has still yet to rule on the Rule 29 motion to dismiss.
UPDATE: Fox News reports: A jury has convicted a Missouri mother of lesser, misdemeanor crimes in the MySpace cyber-bullying case linked to a 13-year-old girl's suicide.
The Los Angeles federal court jury on Wednesday rejected felony charges of accessing a computer without authorization to inflict emotional distress on young Megan Meier.
However, the jury found defendant Lori Drew guilty of three counts of the lesser offense of accessing a computer without authorization.
The jurors could not reach a verdict on a conspiracy count.
Now the attention will turn to Judge Wu, who has yet to rule on the Rule 29 motion to dismiss. Also, note that for purposes of appeal, which will follow if Judge Wu does not grant the Rule 29 motion, this verdict focuses attention on the proseuction's core theory in the case: the theory that violating Terms of Service of a website is itself a federal crime. That is, the nature of the jury's verdict -- if not set aside by Judge Wu -- will allow the appeal to focus directly on the computer crime issue rather than on the suicide and its admissibility.
A Fairly Detailed Discussion of the Second Amendment and Domestic Restraining Orders:
U.S. v. Luedtke (E.D. Wis. Nov. 18, 2008) upholds against a Second Amendment challenge the federal ban on possessing firearms while under a domestic restraining order, and offers more analysis than most district court Second Amendment decisions have provided. I'm not sure the analysis is entirely right, but it struck me as worth noting. Note also that the decision leaves open the door to challenging what strikes me as the most troublesome aspect of the federal ban, which is that in principle it could apply even in jurisdictions where courts may issue a boilerplate injunction that "explicitly prohibits the use, attempted use, or threatened use of force" without a finding that the target has indeed in the past already used, attempted to use, or threatened to use illegal force.
In the present case, defendant is charged with a violation of § 922(g)(8), which makes unlawful the possession of a firearm or ammunition by one:who is subject to a court order that--
(A) was issued after a hearing of which such person received actual notice, and
at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner or person, or engaging
in other conduct that would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the
physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of
physical force against such intimate partner or child that would reasonably be
expected to cause bodily injury[.] 18 U.S.C. § 922(g)(8)....
It is true that the Lautenberg Amendment does not represent a “longstanding prohibition[] on the possession of firearms,” but nothing in Heller suggests that the Court intended to permit only those precise regulations accepted at the founding. Rather, the Court’s examples are best understood as representing the types of regulations that pass constitutional muster. See United States v. Booker, 570 F. Supp. 2d 161, 163 (D. Me. 2008) (“A useful approach is to ask whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of ‘longstanding prohibitions’ that survive Second Amendment scrutiny.”). Sections 922(g)(8) and (9) are regulations of a type traditionally permitted in this nation.
Laws barring felons and the mentally ill from access to weapons have historically been
based on the societal determination that such individuals pose a particular danger. See, e.g., United States v. Lewis, 249 F.3d 793, 796 (8th Cir. 2001) (citing Barrett v. United States, 423 U.S. 212, 218-21 (1976); Huddleston v. United States, 415 U.S. 814, 824-25 (1974)). Such prohibitions on firearm possession by the potentially dangerous or unstable have deep roots in our history. In the classical republican political philosophy ascendant at the founding, the concept of a right to arms was tied to that of the “virtuous citizen.” Consistent with this emphasis on the virtuous citizen was that the right to arms did not preclude laws disarming the “unvirtuous” (i.e., criminals) or those who, like children or the mentally unbalanced, were deemed “incapable of virtue.” Thus, felons, children and the insane were excluded from the right to arms. Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995) (citing Don B. Kates Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986)).
The Gun Control Act of 1968 carried on this tradition. As Congressman Celler, the
House Manager of the Act, stated: [W]e are convinced that a strengthened system can significantly contribute to reducing the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses, from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons. Lewis, 249 F.3d at 796 (quoting 114 Cong. Rec. 21784 (daily ed. July 17, 1968); see also Barrett, 423 U.S. at 220 (“The history of the 1968 Act reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons.”); Huddleston, 415 U.S. at 824 (“The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’”) (quoting S. Rep. No. 1501, at 22 (1968), as reprinted in 1968 U.S.C.C.A.N. 4410).
Sections 922(g)(8) and (9) serve the same purpose. As Senator Lautenberg explained: Under current Federal law, it is illegal for persons convicted of felonies to possess firearms, yet, many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies. At the end of the day, due to outdated laws or thinking, perhaps after a plea bargain, they are, at most, convicted of a misdemeanor. In fact, most of those who commit family violence are never even prosecuted. But when they are, one-third of the cases that would be considered felonies, if committed by strangers, are instead filed as misdemeanors. The fact is that in many places domestic violence is not taken as seriously as other forms of brutal behavior. Often acts of serious spouse abuse are not even considered felonies.
...
There is no reason for [people] who beat[ ] their wives or abuse[ ] their children to own a gun ... This amendment would close this dangerous loophole and keep guns away from violent individuals who threaten their own families, people who have shown that they cannot control themselves and are prone to fits of violent rage directed, unbelievable enough, against their own loved ones. The amendment says: Abuse your wife, lose your gun; beat your child, lose your gun; assault your ex-wife, lose your gun; no ifs, ands, or buts. United States v. Smith, 964 F. Supp. 286, 292-93 (N.D. Iowa 1997) (quoting 142 Cong. Rec. S10377-01 (daily ed. May 16, 1997)), aff’d, 171 F. 3d 617 (8th Cir.1999).
Further, Congress possessed significant evidence that firearm violence by this category of persons presented a serious national problem. As the First Circuit stated: Observing that “nearly 65 percent of all murder victims known to have been killed by intimates were shot to death,” 142 Cong. Rec. S10379 (daily ed. Sept. 12, 1996) (statement of Sen. Murray), Congress hoped that closing this loophole would help to reduce the 150,000 instances of household violence involving firearms that are reported each year. 142 Cong. Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg).
United States v. Hartsock, 347 F.3d 1, 5 (1st Cir. 2003); see also United States v. Booker, 555 F. Supp. 2d 218, 225-26 (D. Me. 2008) (discussing the legislative history and purpose of the Lautenberg Amendment); United States v. Meade, 986 F. Supp. 66, 68 (D. Mass. 1997) (same), aff’d, 175 F. 3d 215 (1st Cir. 1999). Nothing in Heller suggests that Congress may not -- based on further experience and study -- close such loopholes, adding to the list of dangerous individuals historically barred from firearm possession. I therefore reject defendant’s argument that § 922(g)(8) is inconsistent with the historical practices discussed in Heller....
Defendant also argues that § 922(g)(8) sweeps too broadly, applying to persons not
found imminently dangerous by any court, and that the statute contains insufficient procedural protections. I address each contention in turn.
First, there is no requirement under the Second Amendment that only those persons found imminently likely to engage in gun violence may be dispossessed of their firearms. Indeed, under § 922(g)(1), all felons -– save those convicted of “antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,” 18 U.S.C. § 921(a)(20); see also United States v. Jester, 139 F.3d 1168, 1171 (7th Cir. 1998) (finding it reasonable for Congress to exempt this class of non-violent offenders) –- are prohibited from possessing guns, with no requirement of a specific finding of danger. One could argue that by requiring an individualized finding of danger or risk by a court, § 922(g)(8) actually more narrowly serves this salutary purpose than does the general ban on possession by (most) felons. Defendant offers no persuasive argument why the Second Amendment would permit application of a firearm ban to a person convicted of, say, mail fraud, see Dreher v. United States, 115 F.3d 330, 332 (5th Cir. 1997) (holding that mail and wire fraud offenses are not excluded by § 921(a)(20)(A)), but not one who “represents a credible threat to the physical safety of [his] intimate partner or child.” 18 U.S.C. § 922(g)(8)(C)(i).
Second, although the procedural protections under § 922(g)(8)(A) do not equal those afforded the criminally accused, defendant provides no authority for the proposition that counsel, a jury trial and/or proof beyond a reasonable doubt are always required before a
person may be stripped of a constitutional right. Indeed, even those courts which, pre-Heller, had adopted an “individual rights” interpretation of the Second Amendment rejected challenges to the procedures under § 922(g)(8)(A). United States v. Emerson, 270 F.3d 203, 261-62 (5th Cir. 2001). As the Emerson court stated: Section 922(g)(8)(A) requires an actual hearing with prior notice and an opportunity to participate, and section 922(g)(8)(C)(ii) requires that the order “explicitly” prohibit the use (actual, threatened or attempted) of physical force that would reasonably be expected to cause bodily injury. Congress legislated against the background of the almost universal rule of American law that for a temporary injunction to issue [there must be a likelihood that irreparable harm will occur]. Id. at 261-62; see also United States v. Lippman, 369 F.3d 1039, 1044 (8th Cir. 2004).
The domestic abuse order in the present case issued under Wisconsin law, which sets forth clear procedures for injunction matters, including the burden of proof, Wis. Stat. § 813.12(4)(a)3. (“reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner”); a limitation on the length of an injunction, Wis. Stat. § 813.12(4)(c) (up to four years); and a requirement that the respondent be advised of the applicable penalties under state law for firearm possession while under an injunction, and that he must “surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced,” Wis. Stat. § 813.12(4m). In Emerson, the court conclude[d] that Congress in enacting section 922(g)(8)(C)(ii) proceeded on the assumption that the laws of the several states were such that court orders, issued after notice and hearing, should not embrace the prohibitions of paragraph (C)(ii) unless such either were not contested or evidence credited by the court reflected a real threat or danger of injury to the protected party by the party enjoined. We do not imply that Congress intended to authorize collateral review of the particular state court predicate order in section 922(g)(8)(C)(ii) prosecutions to determine whether in that individual case the state court adequately followed state law in issuing the order. What we do suggest is that Congress did not have in mind orders issued under a legal system whose rules did not approximate the above stated general minimum standards for the issuance of contested injunctive orders after notice and hearing.
In any event, it is clear to us that Texas law meets these general minimum standards. 270 F.3d at 262. So does Wisconsin’s law. [Footnote: ... I can
leave for another day the issue of whether a viable constitutional challenge to § 922(g)(8) may be mounted if the applicable state law fails to provide the fundamentals of due process.] I therefore reject defendant’s argument that § 922(g)(8) is procedurally flawed.
The parties and the magistrate judge discuss the appropriate standard of review under the Second Amendment, with defendant arguing that I must subject the statute to strict scrutiny. It does not appear that the Heller majority endorsed any particular standard. Rather, it engaged in an historical analysis of the types of restrictions permitted by the Second Amendment. Therefore, I believe that the issue is best analyzed in the manner set forth above, i.e. by comparing the challenged regulation to those deemed permissible under the Court’s historical analysis.
However, even if I were to apply strict scrutiny, as defendant asks, the statute would
survive. As Judge Kahn recently explained: Reducing domestic violence is a compelling government interest, see, e.g., United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004), cert. denied, 543 U.S. 1080 (2005), United States v. Calor, 340 F.3d 428, 432 (6th Cir. 2003), Henderson v. City of Simi Valley, 305 F.3d 1052, 1057 (9th Cir. 2002), and 922(g)(8)’s temporary prohibition, while the state court order is outstanding, is narrowly tailored to that compelling interest. Accord United States v. Emerson, 270 F.3d 203, 262-63 (5th Cir. 2001) (finding that the Second Amendment protects individual rights, but nevertheless upholding § 922(g)(8)). The threatened conduct that is a prerequisite to the prohibition is serious: “harassing, stalking, threatening,” or other conduct that would cause “reasonable fear of bodily injury”; and the court order must make a specific finding of “a credible threat to the physical safety” of an intimate partner or child or an explicit prohibition on the use of force “that would reasonably be expected to cause bodily injury.” 18 U.S.C. § 922(g)(8). These are narrowly crafted limits on when a citizen may possess a firearm and well tuned to the legitimate concerns of avoiding serious physical injury to a partner or child. United States v. Erwin, No. 1:07-CR-556, 2008 WL 4534058, at *2 (N.D.N.Y. Oct. 6, 2008); see also Lippman, 369 F.3d at 1044 (“We also conclude that the restraining order issued against Lippman was narrowly tailored to restrict his firearm possession for a limited duration and to protect the individual applicant and that Congress had a compelling government interest in enacting § 922(g)(8) to decrease domestic violence.”). No court has found § 922(g)(8) wanting, even under strict scrutiny.
Obama: "understand where the vision for change comes from. First and foremost, it comes from me."
At his press conference this morning, Barack Obama was asked about whether he was appointing too many Clinton Administration retreads and what that means for change in his new Adminstration. He replied:
“understand where the vision for change comes from. First and foremost, it comes from me.”
[UPDATE: After my first posting, this quotation was conformed to the Canadian Press's version.]
"The Bagel":
I recently picked up Maria Balinska's new book from Yale University Press, "The Bagel: The Surprising History of a Modest Bread." I was hoping that the book would shed some light on the baking industry in early 20th-century New York City, given my interest in Lochner v. New York.
The book was only marginally helpful in that regard, but I am otherwise interested in bagels, one of my favorite foods, so I read the whole thing. Despite good reviews elsewhere, I found the book disappointing.
Balinska approaches the book more as a historian than as a sociologist or anthropologist. She provides some very interesting early history of the bagel. But thereafter she is limited by her sources. For exmaple, the book has a lot of detail about the New York Jewish bakers' union, but that story, while mildly interesting, is largely tangential to the history of the bagel. Moreover, because she relies on union sources, the story is completely one-sided; the reader doesn't get the perspective of any of the bagel bakery owners, just the workers. And, not surprisingly for work in this genre, Balinska attributes victories to the union, such as a nine-hour day, which are better attributed historically to generally rising standards of living. (UPDATE: Almost all bakers, unionized or not, already were working no more than nine-hour days when the Jewish bakers' union won this "concession.")
Balinskaaalso spends a great deal of time talking about the history of Lender's Bagels, which undoubtedly helped spread the bagel around the country through its frozen bagels. The Lender family was apparently quite generous with its time. But what about local bagel redoubts that kept the flame of bageldom alive in Jewish communities around the U.S.?
Anyway, as a native New York Jewish bagel afficiando, here are some things that I think the book should have covered:
(1) Why did bagels become so popular, while bialys (which I think are never mentioned in the book), were left in the dust? When I was a kid, an order of a dozen bagels would usually add a few bialys, and bagels set out for brunch were usually accompanied by a smaller number of bialys. Whither the bialy? (By the way, as of two years ago, there's an amazingly good bialy place still operating on the Lower East Side).
(2) How similar are modern bagels to the Polish-Jewish original?
(3) Given that hundreds of thousands of Polish Jews migrated to Palestine before and after WWII, why are bagels (not bagelehs, a pale Mideastern alternative) not native to Israel? Why are Israeli bagelries inevitably opened by immigrants from New York (until they inevitably fail?)
(4) Why has it historically been so difficult to find a decent bagel in the U.S. outside the New York Metro area? What about the folklore in the New York Jewish community that there is something in the New York water that's especially conducive to bagel-making?
(5) While bagels are associated with "Jewish food," the vast majority of the "Hot Bagels" stores I encountered growing up were run by Italians, with Italian appetizing available in store. How did the Jewish bagel become an Italian business?
(6) What, an entire book about bagels and no mention (except for an old picture) of H & H?
(7) The book reeks of bagel triumphalism, but is the round roll sold as a bagel in most of the U.S. really a bagel? The history of the bagel suggests that boiling before baking is the essence of a bagel, but I believe that most bread that passes for "bagel" nowadays is simply baked after some water is spritzed on the dough.
(8) The rise and fall of national bagel chains in the 1990s--Einstein Brothers, New York Bagel Bakery, etc.
(9) The growth in bagel girth in New York. (Bagels purchased at a proper bagel shop are now maybe twice the size as when I was a boy).
(10)More about Montreal bagels. Apparently, Montreal claims to have the best bagels in the world. I never even heard of a Montreal bagel until a very recent trip to Canada. But the author only discusses Montreal bagels briefly at the very end of the book.
(11) What about other traditional Jewish street food, such as the amazing knish? Why do we have "bagel and lox Judaism," not "sliced knish with spicy mustard in the center" Judaism? In other words, why did Jewish culture become associated with the bagel as opposed to knishes, or black and white cookies, or rugelach? How did the bagel displace chicken soup?
(12) How did McDonald's come to serve sausage, egg, and cheese bagels?
(13) We learn about the first cinnamon raisin bagel, but who invented the blueberry bagel? The asiago cheese bagel? The chocolate chip bagel? Were these advances in bagel versatility, or an example of the "pizza phemonenon" (good New York pizza needs no toppings; dreck like Pizza Hut requires enough toppings that you don't actually taste the pizza).
Bonus bagel information: For those of you who live in the D.C. area, there's a great, relatively new bagelry in Rockville, called Goldberg's. Their bagels are the only bagels I've ever had in the D.C. area that are worthy of the name. (Sorry Bagel City fans, those just don't cut it). Goldberg's is kosher, so it's not open on Saturday.
Tuesday, November 25, 2008
Susan Rice as UN ambassador?
So says ABC news. A good appointment? I don’t know. Enthusiasts say that the appointment of a close advisor of President-elect Obama shows that the United States will finally take the UN seriously. She is a “progressive” after all, or so they say. Do they know what Rice thinks of the UN Charter? About the unilateral use of military force? Read here:
History demonstrates that there is one language Khartoum understands: the credible threat or use of force....
After swift diplomatic consultations, the United States should press for a U.N. resolution that issues Sudan an ultimatum: accept unconditional deployment of the U.N. force within one week or face military consequences....
The United States, preferably with NATO involvement and African political support, would strike Sudanese airfields, aircraft and other military assets. It could blockade Port Sudan, through which Sudan's oil exports flow. Then U.N. troops would deploy — by force, if necessary, with U.S. and NATO backing.
If the United States fails to gain U.N. support, we should act without it. Impossible? No, the United States acted without U.N. blessing in 1999 in Kosovo to confront a lesser humanitarian crisis (perhaps 10,000 killed) and a more formidable adversary....
Others will insist that, without the consent of the United Nations or a relevant regional body, we would be breaking international law. Perhaps, but the Security Council recently codified a new international norm prescribing "the responsibility to protect." It commits U.N. members to decisive action, including enforcement, when peaceful measures fail to halt genocide or crimes against humanity.
Not “perhaps.” And not with NATO involvement or African political support. Sound familiar? Let the next adventure begin.
Jury Question in the Lori Drew Case:
The jury in the Lori Drew case spent the day deliberating, and a question asked by the jury suggests that a verdict may have been reached in some counts already: A Los Angeles federal court jury deliberating in the MySpace cyber-bullying trial of a Missouri mother has suggested in a note to the judge that it has reached verdicts on three of the four counts.
The note sent Tuesday during the first day of deliberations asked, "Can we be hung on one count but unanimous on the others?"
U.S. District Court Judge George Wu told the jurors to return Wednesday and resume deliberations.
How to Interpret the Constitution:
University of Montana Law Professor (and Independence Institute Senior Fellow) Rob Natelson explains it all in this 32 minute podcast. I interviewed Rob for the iVoices.org podcast series, and we talked about Ex Post Facto, Indian Commerce, Alexander Hamilton's duplicity, and, most of all, constitutional hermeneutics.
Sanders Admits to Being the Fed Soc Heckler:
Justice Sanders' non-denial no-comment was a rather strange response to the simple question of whether he had screamed "TYRANT!" at the Federalist Society dinner, but now he has admitted that he was in fact the yeller in question. Sanders told The Seattle Times that he'd simply reached the point where he couldn't remain silent.
"Never in my wildest dreams did I imagine there would be any mention of this in the press," he said. "But here we are."
I guess that's the problem with screaming at the top of your lungs in front of 2,000 people (several hundred of whom know who you are) at a speech covered by the national press: People kinda notice. Thanks to James Taranto for the link.
UPDATE: Justice Sanders has issued a statement about the events, via Howard.
"American Bar Association Recalls 230,000 Defective Lawyers":
The report is here. Thanks to Paul Milligan for the pointer.
Obama Chief of Staff Hopes to Exploit the Economic Crisis to Expand the Growth of Government:
In earlier posts (e.g. - here and here) I have emphasized the risk that the combination of economic crisis and unified Democratic control of Congress and the White House would lead to a vast expansion of government. It looks like key Obama advisers and congressional Democrats are thinking along the same lines. As Obama Chief of Staff Rahm Emanuel puts it, the crisis is "an opportunity to do things you could not do before . . . You never want a serious crisis to go to waste." The WSJ article from which the quote comes makes clear that the "things" Emanuel has in mind are government policies that "pick winners" by subsidizing particular industries on a massive scale - as Congress is already doing with the finance industry, auto industry and others (HT: David Boaz).
Given the serious flaws in this kind of central planning, it is highly unlikely that even a well-intentioned federal government could do a better job than the market in choosing which industries to fund. On this point, F.A. Hayek's critique of government planning is still relevant - even more so than I thought when I defended Hayek's continuing relevance earlier this year. In the real world, of course, it is highly unlikely that government planning decisions will be determined by experts whose only concern is the public good. Rather, politically powerful industries will use their influence to lobby for bailouts and other government assistance that will probably be denied to the politically weak - irrespective of the true merits of helping the industries in question.
Interest group pressure has already played a key role in the congressional vote on the finance industry bailout, and it is likely to be equally important in structuring the massive future bailouts to come. Once Obama takes office, we are likely to see some $500 billion to 1 trillion in additional bailout spending - and that may be just for starters. Interest groups will play a major role in allocating this money, and they are already ramping up their lobbying efforts.
The end result will probably be an enormous transfer of resources from taxpayers and wealth-producing industries to interest groups with political leverage. That is likely to serve the interests of those groups and of the political leaders in charge of doling out the government largesse. But it will also impede economic growth by transferring resources away from productive firms to those that are failing.
Judges Kozinski, Kleinfeld, and Rawlinson Weigh in on the Second Amendment on Airplanes:
From U.S. v. Davis (Nov. 21) (unpublished and unsigned); recall that Judges Kozinski and Kleinfeld endorsed the individual rights view of the Second Amendment even before D.C. v. Heller (in their dissents from denial of rehearing en banc in Silveira v. Lockyer, and in Judge Kleinfeld's similar dissent in Nordyke v. King):
We affirm James S. Davis's conviction and sentence for fraud and carrying a concealed weapon on an airplane. Davis got through security with a handgun underneath his jacket because he impersonated a federal Customs Agent.
Davis challenges the constitutionality of 49 U.S.C. § 46505, relying on District of Columbia v. Heller, 128 S. Ct. 2783 (2008). The Supreme Court specified that nothing in that opinion was intended to cast doubt on the prohibition of concealed weapons in sensitive places. Id. at 2816-17....
"Why Don't We Hang Pirates Anymore?"
Piracy appears to be on the rise in the Indian Ocean. Is it because international law and individual nations are too light on pirates? Bret Stephens thinks so.
By the 18th century, pirates knew exactly where they stood in relation to the law. A legal dictionary of the day spelled it out: "A piracy attempted on the Ocean, if the Pirates are overcome, the Takers may immediately inflict a Punishment by hanging them up at the Main-yard End; though this is understood where no legal judgment may be obtained."
Severe as the penalty may now seem (albeit necessary, since captured pirates were too dangerous to keep aboard on lengthy sea voyages), it succeeded in mostly eliminating piracy by the late 19th century — a civilizational achievement no less great than the elimination of smallpox a century later.
Today, by contrast, a Navy captain who takes captured pirates aboard his state-of-the-art warship will have a brig in which to keep them securely detained, and instantaneous communications through which he can obtain higher guidance and observe the rule of law.
Yet what ought to be a triumph for both justice and security has turned out closer to the opposite. Instead of greater security, we get the deteriorating situation described above. And in pursuit of a better form of justice — chiefly defined nowadays as keeping a clear conscience — we get (at best) a Kenyan jail. "We're humane warriors," says one U.S. Navy officer. "When the pirates put down their RPGs and raise their hands, we take them alive. And that's a lot tougher than taking bodies."
Does this mean we should return to 18th Century standards? Not at all. An automatic death sentence for pirates could cause violent escalation of confrontations and increase the loss of innocent life, among other things. But it may be time for the international community to take a more aggressive stance against piracy so as to defend freedom of the seas.
UPDATE: This story illustrates the perils of a shoot-first approach to piracy. A Thailand-based fishing company has claimed that the pirate ‘mother ship’ the Indian Navy destroyed in the Gulf of Aden last week was one of its deep sea fishing trawlers and was being hijacked by pirates when it was blown up by INS Tabar. To be clear, I have no concern for pirates. Piracy is one of the oldest, and most serious, crimes under international law, and should be treated as such. Yet it is important to ensure that anti-piracy actions do not harm innocents -- such as those mistakenly identified as pirates or those victimized by pirates.
Barack Obama and Constitutional Property Rights:
Columnist Steve Chapman quotes an interesting passage from Barack Obama's book The Audacity of Hope, where Obama praises constitutional property rights:
Our Constitution places the ownership of private property at the very heart of our system of liberty.... The result of this business culture has been a prosperity that's unmatched in human history.... Our greatest asset has been our system of social organization, a system that for generations has encouraged constant innovation, individual initiative and the efficient allocation of resources.
I. Judicial Protection for Property Rights and Obama's Legal Philsophy.
This is a fairly strong statement. Obama doesn't merely say that the Constitution offers some small degree of protection for property rights. He writes that it "places the ownership of private property at the very heart of our system of liberty." That implies that property rights should get more protection than the distinctly second-class status they have been relegated to under the Supreme Court's current jurisprudence.
Stronger protection for constitutional property rights would also be consistent with Obama's more famous statement calling for the appointment of judges who have "[t]he empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." As David Beito and I discussed in this article, African-Americans, the poor, and the politically weak tend to be the biggest victims of government violations of property rights. Since World War II, hundreds of thousands of people - most of them poor minorities - have been forcibly displaced by "blight" and "economic development" condemnations.
II. What Will Obama Actually Do?
Will Barack Obama actually appoint judges who adhere to the notion that the protection of property rights is a at "the very heart" of the Constitution, and whose "empathy" for the minority poor leads them to view takings with a skeptical eye? I have my doubts. Although the backlash against Kelo v. City of New London has stimulated support for property rights in many liberal and left-wing quarters (see Part I of this article), the liberal legal establishment remains strongly opposed to any increase in judicial protection for property rights.
Obama has said that he wants to appoint justices similar to Stephen Breyer and David Souter. These justices - like nearly all the other prominent liberals in the federal judiciary - have consistently voted against property rights in almost every major case for the last 20 years (see this article for the details). To find politically liberal jurists more sympathetic to property rights, Obama would have to look beyond the federal legal establishment and reach out to appoint judges from the state courts (where some liberal Democratic jurists have ruled in favor of stronger property rights protection under their state constitutions) or to activist groups such as the NAACP Legal Defense Fund, which filed a strong pro-property rights amicus brief in Kelo emphasizing the ways in which eminent domain abuse targets the minority poor. On balance, I doubt that Obama values property rights enough to go so far afield in choosing his judicial nominees.
There is also a lot the new president can do to strengthen protection for property rights through the political process. In this April op ed I noted several possibilities:
The [next] president can also help protect property rights through the legislative process. In 2005, the House of Representatives passed the Property Rights Protection Act, which would have denied federal economic-development funds to local governments that engage in Kelo-style takings. Unfortunately, the PRPA died in the Senate, and is now stuck in committee in the House. Strong presidential support could well force its passage. The next president should also work to broaden its scope, which in its current form would only apply to a very narrow range of federal grants. Denial of federal funds would create a strong incentive for states and localities to respect property rights.
Finally, the next president could strengthen President Bush’s June 2006 executive order on eminent domain, which forbade federal agencies from initiating condemnations intended to “merely . . . advance[e] the economic interest of private parties.” Unfortunately, Bush’s order did not actually prevent any economic-development takings because government officials can always argue that their goal is to benefit the general public. A new and stronger executive order would have limited impact. But it would send a valuable signal of presidential resolve to protect property rights.
Obama could also act to protect property rights in the field of "regulatory takings," where government actions often impose onerous burdens on property owners without compensation. For reasons co-blogger Jonathan Adler outlines in this excellent article, compensating property owners for regulatory restrictions on their rights can both strengthen property rights and improve the quality of environmental regulation.
If Obama appoints pro-property rights liberals to the federal judiciary or embraces pro-property rights policies, that will be a sign that he really meant what wrote about property rights and is not a typical big government left-winger. It would also allow him to compile a much better record on property rights issues than the Bush Administration did. If the paean to property rights in The Audacity of Hope turns out to be more than just hype, that would give us some change we can really believe in. I'm skeptical that Obama will actually do any of this. As he himself puts it, "hope is not blind optimism." But I'm not giving up hope completely. After all, in the same breath, Obama also said that "Hope is that thing inside of us that insists, despite all the evidence to the contrary, that there is something greater inside of us." Maybe Obama will yet find inside himself the audacity to strengthen protection for property rights.
More on Iraq and Humanitarian War.
Tim Lambert says that the UNICEF data that I rely on have been revised, and that child mortality was not higher during the sanctions regime than it is today. See his post for links to more recent reports. The case for the humanitarian effect of the war, then, would rest on the improvement in political freedoms and economic growth, which are more uncertain and harder to weigh against lives lost.
A number of people have raised the issue of refugees. The refugee problem is severe but it was also bad during the Saddam era (including massive internal displacement). A case can be made that it is worse now but likely to be better in the future if present trends in favor of security and political integration continue.
The other major criticism of my post was that the sanctions regime could have been eliminated, Saddam contained, and the Iraqi population adequately protected from him. I’m skeptical but have nothing new to offer this debate.
A number of people think that my post was meant as a defense of the Iraq war. I have long criticized the idea of humanitarian intervention and have never defended the Iraq war, which was certainly a mistake on the basis of national-interest considerations. But many people, including likely members of the Obama administration (such as Susan Rice, who has advocated a military intervention in Sudan), believe that humanitarian wars are justified. The humanitarian effect of a particular war is an empirical question. The answer in the Iraq case will help determine the Obama administration’s ability and willingness to launch humanitarian interventions in places like Sudan.
Who Was the Fed Soc Heckler?:
During Attorney General Mukasey's speech at the Federalist Society annual banquet last Thursday, an older gentleman seated in the middle of the room stood up and yelled at the top of his lungs, "TYRANT! YOU ARE A TYRANT!" Some in the crowd told the man to sit down, and he eventually did. Soon after, he left the room.
With word that the Attorney General has recovered from what apparently was just a fainting spell, blogospheric speculation has turned to identifying the heckler. James Taranto of the Wall Street Journal was just a few tables away, and he made the case yesterday that the heckler was none other than Washington State Supreme Court Justice Richard B. Sanders, who I have previously characterized as "one of the most libertarian state Supreme Court Justices." (For VC coverage of some of Sanders' recent solo opinions, see here and here.)
At it happens, I was at the same table as Taranto, but I couldn't identify the heckler. At the same time, this post at the WSJ Law Blog this morning seems to be pretty strong evidence that Sanders was in fact the individual in question: The Law Blog on Monday caught up with [Justice Sanders]. Sanders didn’t confirm that he was the one who shouted at Mukasey, but didn’t deny it, either. He said he had “no comment except to say that having reviewed the video of the speech” on the Federalist Society’s web site, “it doesn’t appear that whatever was said was heard by [Attorney] General Mukasey. I left the dinner before the General unfortunately collapsed.” He added that “in my mind a heckler is someone who is making repeated comments audible to the speaker [and] you’ll see that that just didn’t happen.” . . . . When asked why he left the room in the middle of Mukasey’s speech, Sanders told us he simply “wanted to go to my [hotel] room.”
Sanders, a Federalist Society member for several years, told the Law Blog: “Their war on terrorism is out of my professional department. We don’t hear cases on that. In that respect, I’m a private citizen and I have my views." Looking on the bright side, I suppose this means Justice Sanders won't mind if you show up at one of his many speeches and stand and yell at him from the audience. At least if you do not do it "repeatedly." Hat tip: How Appealing.
European attitudes toward international law.
By Jack Goldsmith and me, here.
Bailout oversight -- oh, well.
Remember how the oversight mechanisms were one of Congress's big contributions to Paulson's original three-page bill? See this Washington Post article by Amit R. Paley:
Yet for all this activity, no formal action has been taken to fill the independent oversight posts established by Congress when it approved the bailout to prevent corruption and government waste. Nor has the first monitoring report required by lawmakers been completed, though the initial deadline has passed.
"It's a mess," said Eric M. Thorson, the Treasury Department's inspector general, who has been working to oversee the bailout program until the newly created position of special inspector general is filled. "I don't think anyone understands right now how we're going to do proper oversight of this thing."
...
The legislation also created a body called the Financial Stability Oversight Board, whose five members include Paulson and Federal Reserve Chairman Ben S. Bernanke. But it has no staff of its own, and few expect that policymakers can conduct oversight of themselves. "It's sort of a joke in terms of oversight," a congressional aide said.
Speth's Green Bridge to Nowhere:
I reviewed The Bridge at the End of the World: Capitalism, the Environment, and Crossing from Crisis to Sustainability by James Gustave "Gus" Speth in the latest issue of The New Atlantis. It's an important book, if for no other reason than Speth's influence on contemporary environmental thought. But it fails to offer a viable agenda for environmental reform, let alone a roadmap to ecological sustainability.
Speth is the consummate environmental insider, former CEQ and UN official, founder of the World Resources Institute and now the Dean of the Yale School of Forestry and Environmental Studies. In his book, Speth argues that the environmental movement has failed to prevent continuing ecological deterioration. Now the world faces a global environmental crisis that requires remaking modern civilization. In his view, ecological sustainability requires abandoning modern democratic capitalism, adopting European-style social reforms, and transforming human consciousness. It's a radical agenda, to be sure, but it won't save the environment or ensure a sustainable future.
Here's a taste of the review. Speth’s call for radicalism is inspired, in part, by his belief that the environmental movement has failed to adopt and enact a sufficiently forward-looking agenda. The environmental movement is, in his view, overly “pragmatic and incrementalist” and too willing to accept compromises, naïvely believing that “the system can be made to work for the environment.” Insofar as Speth means that environmentalists are overly enamored of the regulatory state and the ability of expert bureaucracies to plan our way to a greener future, he’s onto something. But he means much more. Environmentalism, in his view, is too narrow and insufficiently radical. “Today’s environmentalism believes that problems can be solved at acceptable economic costs,” he laments, as if seeking to impose “unacceptable” costs on society would be worth doing.
Rather than acknowledging the inherent limitations of political institutions to manage economic and ecological concerns, he suggests it is the private sector’s fault that the public sector fails. Ecological central planning is a vastly more complex enterprise than economic central planning ever was, and that much more prone to failure. Thus it is to be expected that contemporary environmental protection efforts “have spawned a huge and impenetrable regulatory and management apparatus” and current regulations “are quite literally beyond comprehension.” Speth offers no reason why still more radical governmental efforts to restructure and reorient economic activity will not produce even greater problems, but he sees such controls as absolutely indispensable. In his view, the only environmentally sound corporation “is one that is required to be green by law.” . . .
To say I am skeptical of Speth’s agenda is an understatement. What begins as a well-intentioned (if blinkered) examination of sustainability transforms into a connect-the-dots radical jeremiad. While it is important to acknowledge the limits of existing institutions, one must also reflect on institutional successes. The relative vices of capitalism, or any other system, cannot be judged in isolation from its virtues. There’s nothing inherently wrong with seeking dramatic political change, but it seems disingenuous to wrap the entire progressive, social-democratic agenda in the mantle of environmental sustainability. Environmental policy should be about the environment, not income redistribution or the length of the workweek. Speth should put aside his elite ideological preferences for a European-style social welfare state if he truly wants to build a lasting “bridge” to environmental sustainability. As constructed, his bridge is not structurally sound—and it leads someplace nobody would really want to go. The full review is here.
"Alternative Fuels":
With gas prices plunging, the Obama team is still promising to have the government "invest" in green fuel technologies. What a recipe for wasting money! For all the obvious reasons, the odds that government will "invest" wisely are slim to none.
If green technologies must be invested in (and I think there is a sound case the government should encourage this, given the externalities (greenhouse, pollution, foreign policy) of fossil fuels), the way would be to slap a tax on fossil fuels. The money could be used to pay for Obama's promised income tax cut. Better to tax something we don't like (fossil fuels) than something we do (jobs). The tax on fossil fuels will keep prices relatively high, encouraging private investment in alternative sources of energy, free from the inevitable boondoggles of government "investment."
Akhil Amar on Heller:
In the Supreme Court issue of the Harvard Law Review, Akhil Amar has a case comment on DC v. Heller that begins in this amusing way: Well, the show sure ended with a bang. On the last day of the Term, the Court — for the first time ever, by a single vote, over vigorous dissents, and against the weight of circuit precedent — wielded the Second Amendment to strike down a federal gun control measure and to declare a robust individual right to use firearms for self-defense. Experts began parsing District of Columbia v. Heller within hours of the Court’s pronouncement. Over the ensuing weeks, sophisticated commentary blossomed in a rich profusion of blogs, wikis, posts, threads, and chats. Now, nearly five months after the decision, does anything remain to be said? In the Internet Age, does anyone still read law reviews? They seem so twentieth-century.
Yet the Justices apparently still do look at law reviews. Almost half the cases decided with signed opinions last Term cited at least one law review article. In Heller itself, the various opinions invoked over a dozen articles, including a 1940 classic from the Harvard Law Review. Indeed, last Term was a banner year not just for gun wielders like Dick Heller, but also for the editors of the Harvard Law Review. All told, the Justices cited fifteen different HLR articles — more than double the article count of any other legal periodical.
Monday, November 24, 2008
Bush Pardons 14, Commutes Two Sentences:
President Bush pardoned 14 individuals, and commuted the sentences of two others, today, including hip hop artist John Forte. Other prominent pardon seekers, including Michael Milken, and others seeking to have their sentences commuted, such as former Rep. Randy “Duke” Cunningham (R-CA) and former Gov. Edwin W. Edwards (D-LA), are still waiting.
President Bush has been relatively restrained in his use of the pardon power during his presidency. As the Washington Post reports: The president has used his broad pardon powers rarely during seven years in office, granting 157 pardons out of 2,064 petitions, and only six of 7,707 requests for commutations, according to an analysis by former Justice Department lawyer Margaret C. Love. Nonetheless, many expect he will preemptively pardon past and present government attorneys who authorized the use of coercive interrogation techniques or other, potentially unlawful, counter-terror policies. Again from the Post: In the background of the debate is how, if at all, Bush will respond to pressure from left-leaning interest groups and congressional Democrats, who are calling for criminal investigations of former administration lawyers and members of the intelligence community who eavesdropped on Americans without warrants and used harsh interrogation tactics against terrorism suspects.
President Abraham Lincoln bestowed such blanket amnesty on soldiers who took part in the Civil War, and President Jimmy Carter took similar action for people who resisted fighting in the Vietnam War between 1964 and 1973. But scholars disagree about whether the current president could preemptively pardon members of the intelligence community without naming them and specifying the conduct for which they would receive amnesty.
Immortality Through Words:
A lawprof friend of mine mentioned to me that he thought that "philandering" stemmed from Philander C. Knox, the late 19th-century and early 20th-century U.S. politician. This reminded me of the many such words said to be created from the names of people -- hooker (supposedly from Gen. Hooker), sideburn (from Gen. Burnside), cardigan (from the Earl of Cardigan, also a military man), crapper (supposedly from the plumber and toilet improver Thomas Crapper), and sandwich (from the Earl of Sandwich).
Here's what the Oxford English Dictionary tells me about these: Sideburn, cardigan, and sandwich, the OED reports, are indeed named (or, as to "sandwich," "said to be named") after the people. Not so for philandering, attested back to the 1700s, and stemming simply from "philo-" and "andro-," "loving or fond of men" (though the OED doesn't report any homosexual connotation). Likewise, the OED reports that "crapper" comes from "crap," which is attested to when Thomas Crapper was ten years old. And "hooker" appears in 1845; the story about the hooker-Hooker connection refers to Hooker's supposed tolerance for prostitute camp followers during the Civil War. It's possible that the term "hooker" was popularized in part by the Hooker story -- I don't know whether this is so -- but it certainly wasn't created as a result of Hooker's actions.
"Judge Postpones Ruling In Lori Drew Case":
Kim Zetter of Wired has the latest update in the Lori Drew case, namely that Judge Wu decided not to rule at this time on the defense's latest motion to dismiss (this one specifically raising the lack of evidence that any Terms of Service violation was intentional). Our legal briefing on the motion, briefing that Judge Wu sought following Friday's motion at the close of the government's case, is available here. The government's response is here. The evidence in the case has now been submitted, and closing arguments are being held this afternoon.
More on Hillary Clinton and the Emoluments Clause:
From Prof. Michael Stokes Paulsen, author of Is Lloyd Bentsen Unconstitutional?, 46 Stanford L. Rev. 907 (1994) (some paragraph breaks added, some glitches fixed with Prof. Paulsen's advance permission):
Thanks for alerting me to this fascinating (and fun) issue! I've played in this particular sandbox before [as to Lloyd Bentsen], and am amused to see it return in slightly different form.
So, "Is Hillary Clinton Unconstitutional?" In a word, Yes -- or, to be more precise, a Secretary of State Hillary Clinton would be unconstitutional.
The Emoluments Clause of Article I, section 6 provides "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time." As I understand it, President Bush's executive order from earlier this year "encreased" the "Emoluments" (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which "the Emoluments whereof shall have been encreased" during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment ... if the Constitution is taken seriously (which it more than occasionally isn't on these matters, of course).
Are there any legitimate escape hatches to this constitutional bar? Let's consider them quickly. First, does the fact that the emoluments of the office were increased by executive order, pursuant to a general authorizing statute, take the case out of the Emoluments Clause rule? Plainly not. The clause is written in the delightfully ambiguous passive voice that we always discourage in our law students. "shall have been encreased ... by whom, exactly?!" The clause does not limit the application of its rule to direct statutory enactments.
In the world in which legislation may be accomplished by delegation of general quasi-lawmaking authority to executive branch officials, there is no difference in legal principle between a direct legislative enactment and an executive order pursuant to specific legislative authorization. If pay increases may be accomplished, legally, by executive order, then those increases in emoluments fit within Article I, section 6's rule. If those increases occurred during the time for which Hillary Clinton was elected to the U.S. Senate, they disqualify her, regardless of when the general statutory authorization for such increases was enacted.
But wait! Wasn't the (probable) purpose of the Emoluments Clause to prevent congressional self-dealing in the form of creation of offices (or increasing their emoluments) and hoping to profit thereby by being appointed to such office? And isn't that purpose plainly inapplicable here? Perhaps. But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.
As I wrote in something of a sequel to Lloyd, if purposes were taken as rules, and if the meaning of texts "evolve" over time, then "thirty-five years of age" does not mean "thirty-five years of age" but stands instead for an evolving principle of maturity. In 1996, this would have meant that the lawful President of the United States was Strom Thurmond, not Bill Clinton. Michael Stokes Paulsen, Is Bill Clinton Unconstitutional? The Case for President Strom Thurmond, 13 Const. Comment. 217 (1996). So too, the fact that the Emoluments Clause catches in its snare the (possibly) blameless (for this at least) Hillary Clinton does not mean that its constitutional command can be ignored with impunity.
Then there's the infamous "Saxbe Fix" precedent, which I discuss in Lloyd. Couldn't Congress pass a repealing statute, or President Bush (or even President Obama) rescind the executive order, selectively, as to Hillary and make everybody happy? Nope: The clause forbids the appointment of someone to an office the emoluments whereof "shall have been encreased." A "fix" can rescind the salary, but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.
Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but "standards" or "principles" to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State. I wouldn't bet on this actually preventing the appointment, however. It didn't stop Lloyd Bentsen from becoming Secretary of State. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution's actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don't know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.
There is one last chance for Hillary. The Emoluments Clause provides that its rule applies to any senator or representative, "during the Time for which he was elected." Perhaps the rule of the Emoluments Clause does not apply to female U.S. Senators. It's an out-there argument, of course (Hillary and I both went to Yale Law School). But I think I would prefer even this (unpersuasive) pronoun pounce to the Saxbe Fix, or to ignoring the text of the Constitution entirely.
My views are somewhat different (and less certain), and I discuss them briefly at the end of the earlier post; but I thought that I would use this post to pass along Prof. Paulsen's views.
Encouragement for Student Authors:
By the way, John O'Connor, the author of the Emoluments Clause article I point to immediately below, reports:
I also should note that I wrote this article while a law student and shopped it around immediately after graduation. I know you have had posts on your site about the ability of law students to attract journal interest in their student-written works. It can be done (and because of the paucity of scholarship in this area, it's an article I get occasional inquiries about out of the blue).
So take heart, law students, and get those articles circulated. (Of course, it helps if they're original, well-reasoned, and well-written, as O'Connor's article is.)
Hillary Clinton and the Emoluments Clause:
There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Emoluments Clause:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ....
Adam Bonin's Daily Kos blog has a bit more on this, but the short version is that a Jan. 2008 executive order, promulgated pursuant to a 1990s cost of living adjustment statute, raised the salary of the Secretary of State, so the Emoluments Clause question is in play. I very recently read an article by John O'Connor on the subject, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), so I asked him what he thought. Here's his answer (some paragraph breaks added); please note that I have some comments at the end of this post that express a somewhat different view:
It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called “Saxbe Fix,” whereby the Secretary of State’s salary is reduced to the salary in effect before Senator Clinton’s current Senate term began.
I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility.
The Emoluments Clause provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.” As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton’s current Senate term, which does not end until 2012. Therefore, under a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.
I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.
The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.
It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which “have been encreased.” Even if the emoluments of the office are later reduced, it seems to me that they “have been encreased” during Senator Clinton’s current Senate term even if they are later decreased.
Professor Volokh suggested [in the e-mail requesting this response -EV] that the clause might be read so that the emoluments of an office “have been encreased” only if the salary at the time of appointment is higher than the salary at the beginning of the appointee’s congressional term. I do not think that is the best textual reading of the clause. The clause’s use of the past participle (I think that’s what it is) “have been encreased” focuses on acts prior to appointment, and not on where the office’s emoluments stand at the time of appointment as compared to some prior point in time.
This focus [on] a past act of increasing emoluments, rather than on the emoluments existing at the time of appointment suggests to me that the clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end.
In addition, one of the central theses of my law review article on the subject is that the purpose of the Emoluments Clause is disserved by the Saxbe Fix. The records of the federal constitutional convention indicate two purposes underlying the Emoluments Clause: (1) general anti-corruption, whereby Congress might conspire with the President to create offices, or to give existing offices exorbitant salaries, with the understanding that a Member of Congress would be appointed to the office; and (2) limiting the size, importance, and reach of the federal bureaucracy.
The general anti-corruption purpose of the Emoluments Clause might be served by ensuring that a Member of Congress does not get the benefit of any salary increases taking effect during his or her term. But the other purpose of the Emoluments Clause -– limiting the size and power of the federal government as compared to the states -– that purpose is disserved by he Saxbe Fix. The argument in favor of the Saxbe Fix focuses on the back end of the process, making sure the appointee does not benefit from a salary increase. But the purpose of the Emoluments Clause is furthered by the effect it has on the front end -– discouraging the creation of new offices or the increase in the salaries of federal offices by rendering Members of Congress ineligible for appointment, during their current terms, to any office created during their current terms or to any office the salary of which has been increased during their current terms. If, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices.
As they say, anyone wanting the full-blown version of my thought on the subject [which also includes a detailed discussion of the second rationale, "limiting the size, importance, and reach of the federal bureaucracy" -EV] should read the entire law review article I wrote, but this is the gist of it. I should also note that I am highly skeptical that a court would find anyone to have standing to challenge Senator Clinton’s appointment, so this is probably all just an academic exercise. And, I should add that, constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.
Here's my very tentative thinking: I think the phrase "the Emoluments whereof shall have been encreased during such time" is ambiguous. It could mean "shall have been increased at least once," or it could mean "shall have been increased on net." If you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me quite possible that you would mean "Has it been increased so that it now costs more than it cost a year ago?," rather than "Has it been increased at all, even if the price hike was entirely rolled back a month later?" In fact, the "on net" reading strikes me as more plausible than the rival reading. If that's so, then the question is how you resolve the ambiguity, in light of
the purpose of the Clause, the adjustment's being a cost-of-living adjustment that in practice prevents a real-world decrease in pay rather than being a real-world increase (irrelevant to the purely textual analysis that would apply if the text were clear but possibly relevant if the text is ambiguous and we have to resort to determining the purpose of the Clause), and the Saxbe fix precedent, which dates back to then-President William Howard Taft and Secretary of State Philander C. Knox and has been reinforced by President Nixon and Saxbe, President Carter and Secretary of State Edmund Muskie, and President Clinton and Secretary of the Treasury Lloyd Bentsen, though it has been dissented from during the Reagan Administration, when the Administration's conclusion that the Saxbe fix was unconstitutional apparently helped lead to the selection of Robert Bork (and then Douglas Ginsburg and finally Anthony Kennedy) in place of Senator Orrin Hatch.
I don't know what the answer is given all that, but those are the things that I'd think about. (I should add that I also agree with John O'Connor that "constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.")
Note also that Michael Stokes Paulsen's Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) suggests that someone might indeed have standing to challenge the Saxbe fix, though only after the appointment. Here's what Prof. Paulsen says about Secretary Bentsen in particular, though it would likely apply to a Secretary of State as well:
In the Lloyd Bentsen case, however, I would not be too sure that there is no litigation risk. While a direct taxpayer or citizen suit might be foreclosed by the Incompatibility Clause precedent, the unconstitutionality of Bentsen's appointment could always be invoked as a defense to some coercive action or order by the Treasury Secretary, much as the unconstitutionality of the Independent Counsel statute was asserted (unsuccessfully) as a defense to prosecutions brought pursuant to that statute. Indeed, the Lloyd Bentsen Relief from the Constitution Act of 1993, like earlier such relief acts, authorizes private civil actions contesting the unconstitutionality of Bentsen's appointment by "[a]ny person aggrieved by an action of the Secretary of the Treasury" and provides for expedited consideration and appeal of such a lawsuit. A person adversely affected by a Treasury Department regulation promulgated by Secretary Bentsen -- say, for example, new Treasury or IRS regulations implementing President Clinton's tax hikes -- would have standing to sue to have such regulations overturned on the ground that the Secretary of the Treasury was illegally appointed. Of course, there would be many collateral issues of jurisdiction and remedy. (Could an aggrieved individual also obtain injunctive relief against Bentsen's continuance in office? Could Treasury simply reissue the regulations under the authority of an Acting Secretary and make them retroactive?) But the short point is that Bentsen's unconstitutional appointment can be made the subject of a lawsuit and that a finding of unconstitutionality could create a real mess.
I could find no such challenges, however.
The Fourth Amendment Abroad:
The Second Circuit has just handed down a very important new Fourth Amendment case on how the Fourth Amendment applies overseas: In re Terrorist Bombings of U.S. Embassies (Fourth Amendment Challenges). In an opinion by Judge Cabranes, the court held that the warrant requirement does not apply to searches abroad conducted by U.S. officials: searches abroad are governed by a reasonableness standard instead of the warrant requirement.
It's interesting to compare the Second Circuit's approach with the rule that the Ninth Circuit has taken in cases involving joint investigations. In most criminal cases investigated abroad, the U.S. works closely with foreign law enforcement: the FBI and the foreign authorities conduct a joint investigation. In that setting, the Ninth Circuit has held that the Fourth Amendment requires reasonableness, and that the reasonableness of a joint investigation is governed by its compliance with the law where the search occurred. The basic idea is that if the U.S. law enforcement authorities are working with their foreign counterparts and conducting searches abroad, then the most you can expect is that the joint investigation will comply with the letter of the law where the search is occurring.
Today's decision by the Second Circuit deals with a different circumstance: Here the U.S. was acting alone, with intelligence agencies investigating in Kenya without the assistance of Kenyan authorities. Until today, there were no federal appellate decisions on this set of facts, and the only lower court decision (that I know of) was the district court decision below. The Second Circuit applied a different sort of reasonableness rule: It applied a totality of the circumstances test that generally balances the individual's privacy interest with the government's interest in collecting the information. Notably, in this case the test factored in the government's national security interests in investigating terrorism -- an interest that the court indicated was paramount and that the court was "loathe" to discount.
This is roughly the framework that it seems that U.S. intelligence agencies had been assuming applying to its surveillance of those with Fourth Amendment rights abroad, and if anything is more government-friendly than the very sparse precedents in this area would suggest -- certainly more so than Judge Sand's opinion for the district court. But this area has long been a question mark in the Fourth Amendment area: While there have been a number of "joint investigation" cases, the legal framework for U.S.-only monitoring of U.S. citizens abroad has long been a largely open question.
Finally, note that this opinion doesn't change the law that applies to the bulk of national security monitoring abroad. Most national security surveillance outside the U.S. is of individuals that have no Fourth Amendment rights at all under United States v Verdugo-Urquidez because they have no significant voluntary contact with the U.S. (such as would generally be the case with a foreigner abroad who doesn't live in the U.S. or have property here). The rules that apply to such monitoring is statutory rather than constitutional, and this decision (which applies in the case of a U.S. citizen) doesn't change that.
Davidoff & Zaring on the government’s response to the financial crisis.
Steven Davidoff and David Zaring have been among the most interesting law bloggers on the financial crisis. Here is an extremely useful draft that puts together and updates their earlier work, emphasizing the “regulation by deal” approach of the government. They see legal constraints where Adrian Vermeule and I see black and gray holes exploited by the executive branch and the Fed. You decide! The abstract is below.
How should we understand the federal government's response to the financial crisis? The government's team, largely staffed by investment bankers, pushed the limits of its statutory authority to authorize an ad hoc series of deals designed to mitigate that crisis. It then decided to seek comprehensive legislation that, as it turned out, paved the way for more deals. The result has not been particularly coherent, but it has married transactional practice to administrative law. In fact, we think that regulation by deal provides an organizing principle, albeit a loose one, to the government's response to the financial crisis. Dealmakers use contract to avoid some legal constraints, and often prefer to focus on arms-length negotiation, rather than regulatory authorization, as the source of legitimacy for their actions, though the law does provide a structure to their deals. They also do not always take the long view or place value on consistency, instead preferring to complete the latest deal at hand and move to the next transaction. In this paper, we offer a first look at the history of the financial crisis from the fall of Bear Stearns up to, and including, the initial implementation of the Economic Emergency Stability Act of 2008. We analyze in depth each deal the government concluded, and how it justified those deals within the constraints of the law, using its authority to sometimes stretch but never truly break that law. We consider what the government's response so far means for transactional and administrative law scholarship, as well as some of the broader implications of crisis governance by deal.
Two new books on the Heller case:
Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment, by Brian Doherty (an editor of Reason magazine), premieres this week. The book is published by the Cato Institute. Here's the Cato site for the book, including a good video commercial. I read a pre-publication draft in September, and thought it was a solid history of the case, including the broader context around the case.
This afternoon (4 p.m. Eastern Time) Cato will host a forum on the new book, which you can watch online.
The other book on Heller is co-authored by Alan Korwin and me. The Heller Case: Gun Rights Affirmed! is much larger in page count and narrower in focus than the Cato book. The Cato book is a journalistic story of an important case, similar to Gideon's Trumpet by Anthony Lewis. In contrast, The Heller Case is a reference book on Supreme Court jurisprudence. It's a sequel to the Kopel-Halbrook-Korwin book from 2003, Supreme Court Gun Cases. That book provided the text, along with commentary and analysis, for all 92 Supreme Court cases involving the Second Amendment (even in passing), firearms law, or self-defense law. The new book, The Heller Case, provides summaries of those 92 cases, plus the full text (the relevant parts) with analysis of three recent cases on firearms/self-defense (Brosseau, 2004; Small, 2004; Castle Rock, 2005). And then there is the full text of Heller itself, the 96th Supreme Court gun case. That's followed by 80 pages of analysis of the meaning and implications of Heller from scholars such as Glenn Reynolds (and me), and reactions from pro-rights groups, anti-rights groups, and also contrarian gun rights advocates who warn that the Heller will destroy the Second Amendment. Plus outline level summaries of every one of the 67 amicus briefs. And Alan Korwin's description of the scene on argument day, and life in Hellertown (the two-day camp-out scene outside the Court building).
Gun Control on Trial and The Heller Case would be, in my biased view, fine additions to your legal library, or great gifts for anyone who you know who is interested in Second Amendment issues.
Another District Court Upholds Ban on Firearms Possession by Unlawful Users of Controlled Substances:
The case is U.S. v. Chafin, 2008 WL 4951028 (S.D. W. Va. Nov. 18), and came about when Juan Chic and Cory Chafin tried to buy a gun while smelling of marijuana. The gun dealer refused to sell then gun and called law enforcement; law enforcement eventually learned that Chafin already had a gun, and Chafin was prosecuted for various crimes, including possessing a gun while "an unlawful user of or addicted to any controlled substance" (18 U.S.C. § 922(g)(3)). Here's how the court rejected Chafin's Second Amendment argument:
Following Heller, it is ... apparent ... that the individual right [to keep and bear arms] is "not unlimited, just as the First Amendment's right of free speech ... [is] not" unlimited. ("[W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.")Specifically, the Heller decision observes as follows:
From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
The Supreme Court stressed that these ... significant carve outs were "presumptively lawful regulatory measures" that were "examples[,]" rather than an "exhaustive" listing, of legitimate prohibitions.
The foregoing discussion suggests at least two reasons why defendant's reading of Heller is too broad. First, the Supreme Court addressed only the constitutionality of a sweeping District of Columbia firearm regulation -- one that included a total ban on handguns -- that was far more restrictive than the statutes [involved here]. Second, Heller sanctioned some well-rooted, public-safety-based exceptions to the Second Amendment right that appear consistent with Congress' determination that those unlawfully using or addicted to controlled substances should not have firearms at the ready.
An in-depth analysis is likewise unwarranted concerning defendant's contention that any post-Heller firearm restriction must satisfy strict constitutional scrutiny. The law appears otherwise. See Heller (Breyer, J., dissenting) ("Respondent proposes that the Court adopt a 'strict scrutiny' test, which would require reviewing with care each gun law to determine whether it is 'narrowly tailored to achieve a compelling governmental interest.' But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws -- prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales -- whose constitutionality under a strict scrutiny standard would be far from clear.").
The Iraq War – A Humanitarian Success?
See here. (I tried posting this originally on the VC website but the software handles tables very poorly.)
Update:
Correction here.
Update:
Tim Lambert says the UNICEF data I relied on have been revised and show no improvement from the sanctions regime.
Sunday, November 23, 2008
Lessons from the Great Depression:
Tyler Cowen on the lessons for today from FDR and the Great Depression:
In short, expansionary monetary policy and wartime orders from Europe, not the well-known policies of the New Deal, did the most to make the American economy climb out of the Depression. Our current downturn will end as well someday, and, as in the ’30s, the recovery will probably come for reasons that have little to do with most policy initiatives.
Eric Holder and the Marc Rich Pardon:
I have been unsure whether Eric Holder's role in the controversial pardon of billionaire fugitive Marc Rich should raise concerns about his nomination to be Attorney General. George Lardner, who covered the pardon for the Washington Post at the time, makes the case suggests Holder has been less-than-fully forthcoming about his role, and that the pardon "deserves more scrutiny" before Holder is confirmed as the nation's top law-enforcement official. His article concludes:
The precedent against pardons for fugitives was set more than 200 years ago by President John Adams. The charge, brought in 1799, was murder on the high seas against a ship’s captain who was clearly trying to put down a mutiny. But the mutineers made it back to the States, ready to testify against the captain, while his supporters were still at sea. The captain was afraid to return. Asked to approve a nolle prosequi (a notice that prosecution won’t be pursued, a procedure then treated as part of the pardon power), the president consulted his cabinet, which concluded that a trial should come first and a pardon, if justified, after that. Clemency, wrote Secretary of War James McHenry, should be exercised only with “great caution and on the fullest information.”
Mr. Holder never came close to meeting that standard. He had the last word at Justice on clemency petitions and he saw to it that he had the only word. He brokered one of the most unjustifiable pardons that an American president has ever granted.
Related Posts (on one page): - Eric Holder and the FALN Pardons:
- Eric Holder and the Marc Rich Pardon:
Will Free Enterprise Fund v. PCAOB Go Up?
Last Monday, the U.S. Court of Appeals for the D.C. Circuit denied the Free Enterprise Fund's petition for rehearing en banc in Free Enterprise Fund v. PCAOB, a challenge to the constitutionality of the Public Company Accounting Oversight Board created by the Sarbanes-Oxley Act, by a vote of 5-4. Chief Judge Sentelle and Judges Griffith, Kavanaugh, and Ginsburg voted for rehearing. Judges Henderson, Rogers, Tatel,
Garland, and Brown voted against. A copy of the order is here. The Fund's attorneys at Jones Day and the Competitive Enterprise Institute promise a petition for certiorari is forthcoming.
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