The Volokh Conspiracy

This week’s National Journal poll of political bloggers started off by asking them to rank the importance of various media that the political blogger himself uses to stay informed. On both the Right and the Left, “websites/blogs” came in first. However, on the Left, daily print newspapers were second, while on the Right, they were fifth. Print magazines were third on the Left, and last on the Right. For me, the web comes first, and print newspapers (Wall St. Journal, NY Times, Denver Post, and Boulder Daily Camera) are second.

The next question was to give a grade to White House Press Secretary Robert Gibbs. The Left gave him a B-, while the Right voted for D+. I gave him a B, and explained, “He’s said some silly things, but some missteps are inevitable when one talks to the media that much. Overall, he comes across as a likable guy. The failed policies he has to defend aren’t his fault.”

The final question was “Do think it’s a good idea for struggling newspapers to become nonprofits in order to receive tax breaks?” Sixty-nine percent of the Right, but only 16 percent of the Left liked the idea. I thought it was a fine idea, as long as a particular newspaper meets the legal standards to be a non-profit: “Why not? The country is better off with daily print newspapers than without them.”

There are plenty of reasons to oppose the cap-and-trade legislation working its way through Congress, but the claim that  a “nasty bureaucratic provision” will require “President Obama to act like Venezuelan strong man Hugo Chavez” is not one of them.

The provision at issue — Section 707 in the bill approved by the Senate Environment Committee — reads as follows:

SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDATIONS

Not later than July 1, 2015, and every 4 years thereafter—

(1) the President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706 and to address any shortfalls identified in such reports; and

(2) in the event that the National Academy of Sciences has concluded, in the most recent report submitted under section 706, that the United States will not achieve the necessary domestic greenhouse gas emission reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

This provision would clearly require the federal government to step up its efforts to reduce greenhouse gas emissions, and could well be triggered rather quickly if the bill is passed.  It’s also possible, as Senator David Vitter warns, that it could limit the award of carbon reduction offsets and permits under this and other regulatory programs.  (See also here.) But “strong man powers”?  Please.

The above provision grants no new powers to the federal government, let alone the President.  None.  Zero.  Zilch.  Rather, it directs the President to have agencies use “existing statutory authority” to ensure greater greenhouse gas emission reductions.  In other words, it requires the President to ensure that agencies are using all the tools Congress has already delegated to them to reduce greenhouse gas emissions — tools that such agencies could use even if the section is not triggered — and demands the President “submit to Congress” a request for additional authorities the President believes are necessary to ensure greater emission reductions.  Moreover, insofar as this provision constrains the Executive Branch’s discretion over what emission-reduction measures it wants to take, it actually reduces executive authority.

That said, Section 707 could be worrisome to interest groups bullish about their ability to influence EPA implementation of a cap-and-trade regime, particularly those anticipating they will be able to take advantage of a flexible administrative approach to emission reduction offsets.  The farm lobby, for instance, pushed hard to shift responsibility for monitoring agricultural offsets from the EPA to the Agriculture Department, as they expect the Ag Department to be more favorable to their interests when evaluating offsets.  The EPA has been too ambivalent about the environmental benefits of ethanol and other biofuels for the farm lobby’s tastes.  Once triggered, Section 707 might tie Ag’s hands, insofar as it would require the Department to adopt a more restrictive approach to evaluating offsets.  This could leave the farm lobby quite disappointed.  So, while Section 707 may provide reasons for offset-seeking interests and other rent-seekers to take a second-look at bill, it’s hardly a stalking horse for climate Chavistas.

In one of my recent Constitutional Law classes, I had occasion to quote a much-neglected legal authority: He-Man. Like many presidents, especially in wartime, He-Man claims that he has “fabulous secret powers” and even summarizes his legal position with the immortal words “I have the power.” It’s the best short summary of the late Bush Administration’s theory of executive power that I have seen so far.

The Vanderbilt Law Review’s “En Banc” online supplement has published a roundtable on Free Enterprise Fund v. PCAOB, an important separation of powers case the Supreme Court will hear later this term.  The case concerns the constitutionality of the Public Company Accounting Oversight Board, an independent entity appointed by the Securities and Exchange Commission.  The roundtable features an impressive line up of constitutional and administrative law scholars: Peter Strauss, Richard Pildes, Stephen Calabresi and Christopher Yoo, Harold Bruff, and Gary Lawson.  Prior VC posts on this important case can be found here.

Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition.  The AP story is unusually detailed for a wire story and bears reading.  I am in the middle of something and can’t stop to comment  on the substance.

However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.”  It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.

Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently.  Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters — given the relatively little interest that Republican members of Congress show.  Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.

My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian prosecutions, threatened Spanish actions, and other places to sum up policy) but instead simply an inability to travel abroad.  On reason I believe this is what key players in the Obama administration think is simply because I’ve heard it so often over the last three or four years.  I have heard it said in many conversations among international law academics, advocates, NGO activists, and so on, that this is a good way both to appropriately punish, for example, John Yoo — and to deter future government lawyers or actors, many of whom do contemplate active professional and personal lives outside of government that might involve travel abroad.  I don’t doubt that this is a reasonably widely held view, for example, among professional and academic readers of the international law blog Opinio Juris, where I also blog.  Heck, it wouldn’t surprise me if it had been urged as its own policy in some paper somewhere on SSRN, although I haven’t actually seen anything like this.  It’s not an accusation of bad faith; it’s just a fairly pedestrian trope in this particular community.

But whether the psychological motivations are as I believe they are or not — whether I’m right or wrong about what the increasingly ‘visible and noisy college of international law’ thinks is a pretty appealing backdoor way of punishing Yoo, et al. — the biggest reason I think this is the wave of the future is the strategic logic of the situation.  Filling out what I said above, it seems to me likely that these prosecutions, threatened or actual, will target Republicans over time and not Democrats, even when the behavior is quite obviously the same.  Targeted killing using Predators seems to me very, very likely — just as soon as there is a Republican in the White House.  Meanwhile, nothing actually happens, but the legal and soft-law groundwork is put in place so that upon a change of administration, somehow things change, at least as far as the legal characterizations and then later how prosecutors like Spain’s Baltasar Garzon see them.

Why one party and not the other, if based on anything other than claimed psychological affinities?  If the advocates, NGOs, activists, European prosecutors, UN folks, etc., were to go after both Democrats and Republicans — for, after all, the same behavior — then Democrats targeted from the Obama administration would hang together with Republicans of President Ummm.  A threat against American behavior as such, behavior undertaken by both administrations, would force the Americans to hang together as Americans.  So if you are the international law community, and even if you would in principle like to go equally after everyone engaging in the same behavior, you get 0%.  That’s so whether or not you have the same appetite for going after people in any administration.

If, on the other hand, you go only after Republicans, you can reasonably count on Democrats, if they know they are not going to be targeted, to hang with you in going after Republicans.  So you don’t get 100%, but you don’t automatically get zero, either, and you might get 50%.  That seems to me a reasonably rational strategic argument, at least from the foreign standpoint.  (There’s a further question about why Democrats would go along with this ‘international law community’ rather than siding with their fellow Americans that does involve extra-strategic preferences.)

I also predict that the behaviors at issue in targeted killing with Predators will suddenly turn out to have mysterious, hithertofor unidentified legal characteristics that make it one kind of thing when it is the Obama administration, and something else — and suddenly legally liable — when it is the next Republican administration.  And that some of those arguing that it was one thing under Obama and another under the next administration will be the current administration’s transnationalist lawyers, out of office and back in the academy or think tanks or NGOs.

I happen to think it is a good thing, however, if Americans hang together as Americans when it comes to successive presidential administrations — national politics and the water’s edge, in that apparently old-fashioned and out-of-fashion and un-cosmopolitan formulation.  So unsurprisingly I think it would be a good thing if Republicans and, even better, some Democrats would take account of this emerging path of international soft-law, and perhaps start taking steps to stop it.  I’m not holding my breath.

(After a couple of annoying/uncivil emails on this, I decided to delete and close the thread as well.  Apologies to any non-abusive commenters whose comments I deleted.)

This week’s National Journal poll of political bloggers asked “What will be the top two issues in the midterm elections?” Enormous majorities on both the Left and the Right picked “Economy/jobs” as the expected top issue. On the Left, “health care reform” came in second, far ahead of the third-place “deficit/big government.” The issues of Afghanistan and Cap & Trade were very far behind. The picks on the Right were similar, expect that “deficit/government” was the choice for 2d place, with health care in third.

I wrote: “All these will be big, but the ballooning deficit and the unemployment rate will probably be of interest to the largest number of voters. Afghanistan/cap-and-trade/health care will probably motivate lots of base activists from both sides.”

The second question was “On balance, does the White House’s decision to take on Fox News help or hurt President Obama?” Eighty-seven percent of the Left, but only 18% of the Right thought it helped. I was among them: “It turns out that all those folks with ‘dissent is patriotic’ bumper stickers who worried about the president trying to shut down criticism were just a little ahead of their time. Obama’s stature is diminished in the short run, but Fox’s reporting is so harmful to the WH (Van Jones, Anita Dunn, etc.) that they may have figured some short-term cost is worth it if they can convince the more pliant folks in the MSM not to follow up those stories.”

Rep. Ginny Brown-Waite, Rep. Cliff Stearns, and Rep. Ron Paul say “no,” and have sent a letter to the President asking him to request congressional consent, which they expect would be speedily given. They point to the example of President Theodore Roosevelt, who created  a committee, including the Chief Justice, to hold Roosevelt’s Nobel Peace Prize money in trust until he left office. After leaving office, Roosevelt asked for congressional consent to disburse the money to particular charities.

Article I, § 9, clause 8, of the Constitution states that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

When Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC § 7342 (titled “Receipt and disposition of foreign gifts and decorations”) sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an “employee,” which includes “the President and the Vice President.”

A “foreign government” includes ” any agent or representative of any such [foreign] unit or such organization, while acting as such.” Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A “gift”  is “a tangible or intangible present (other than a decoration) .” A “decoration” includes a ” medal, badge, insignia, emblem, or award.”

By the statute, Congress explicitly consents to employee receipt of gifts of  “minimal value,” which is “means a retail value in the United States at the time of acceptance of $100 or less.” The statute authorizes the Administrator of General Services to make regulations to adjust “minimal value” to reflect changes in the Consumer Price Index, beginning in 1981, and reflecting CPI changes in the previous three years. Roughly speaking, $100 in 1978 is about $327 today.

A Peace Prize laureate receives a diploma, a 196-gram gold medal, and a large check (10 million Swedish crowns in 2007). The spot price of gold is $33 a gram, so the medal and the check obviously do not qualify for the “minimal value” exception. The diploma, as a piece of paper, could, although not if it were delivered with an expensive frame.

In the statute, Congress also formally “consents” to an employee receiving and keeping “a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.” The diploma and the medal both fit within the definition of “decoration.” As President, Obama is the head of his own “employing agency,” and therefore can approve his receipt of the medal and the diploma.

The check is not a “decoration” and is of much more than “minimal value.” Employees may not accept gifts of more than minimal value. However, there are various exceptions, and the relevant one is that a gift may be accepted “when it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that– (i) a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.” It would seem to be within the foreign policy discretion of President Obama to determine that refusing the Nobel check could cause offense, embarrassment, or an adverse effect on foreign relations.

Then, “Within 60 days after accepting a tangible gift of more than minimal value,...an employee shall– (A) deposit the gift for disposal with his or her employing agency; or (B) subject to the approval of the employing agency, deposit the gift with that agency for official use.” Accordingly, it would appear that President Obama must turn the check over to the United States government, for official use. I have not researched whether there are regulations detailing precisely how gifts which a President receives are to be disposed. It would appear that President Obama cannot personally give the Nobel money to charity.

Thus, it seems clear that the statute already supplies the constitutionally-required congressional consent for President Obama to accept the Nobel Peace Prize, and no further action by Congress is needed, provided that President Obama signs the check over the government, as the statute requires.

 UPDATE: One disadvantage of VC’s new platform is that we can no longer award the coveted Green Border to especially good comments. Such honor is due to the commenter who brought up 5 C.F.R. sec. 2635.204(d). This is part of a regulation covering all gifts received by federal employees–not just gifts covered by the Constitution’s requirement of Congressional approval of gifts from foreign princes. The relevant portion of the regulation states that a federal employee can keep money from an achievement prize he is awarded, if the award is given regularly according to written standards. An example in the regulation is “an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.”

I don’t think this regulation helps Obama, although, as I explained above, the statute provides him with all he needs. First, keeping the prize money is allowed only if the prize is awarded “by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties or by an association or other organization the majority of whose members do not have such interests.” As has been widely discussed on the Internet, the Norwegian committee is obviously trying to influence U.S. foreign policy in a particular direction, and is making the award in part to further those interests. Second, the Nobel Prize for Medicine is awarded by an institute affiliated with a Swedish university hospital.  This is very different from the Peace Prize committee, which is picked by the Norwegian Parliament. Alternatively, if the Institute counts as a Swedish government agent because the Swedish government owns the hospital (I don’t know if they do), then the example in the regulation is wrong. A regulation cannot over-ride a statute or the Constitution. The Constitution requires congressional permission; the statute provides congressional permission in certain circumstances. The executive branch, by writing a regulation for itself, cannot expand the scope of the congressional permission.

The New York Times reports on the continuing speculation over whether White House Counsel Greg Craig is on the way out.

As President Obama’s top lawyer, Mr. Craig has been at the center of thorny decisions on closing the prison at Guantánamo Bay, Cuba, and revising interrogation and detention policies, problems that have bedeviled the new administration and generated fierce battles inside and outside the White House. And for months now, he has endured speculation in print and around the White House about whether he is on the way out.

Mr. Craig said he had no plans to leave, and White House officials said the president still had faith in him. But colleagues and Democrats close to the White House said they expected him to move on around the end of the year, and they have been talking about possible replacements. Whether Mr. Craig leaves or not, the discussion of his fate has grown so persistent and the situation so awkward that one supporter calls it “the Greg Craig watch.”

A large number of senior law-related positions in the Administration that remain open.  Having to search for another White House Counsel will hardly help.

The Washington Post reports on how the Obama Administration is increasing regulatory efforts on many fronts.  There’s no question Obama appointees are more enthusiastic regulators than their Bush counterparts (with the possible exception of those at Homeland Security), but it would be a mistake to place all the credit/blame for increased regulation on the Obama Administration.  In some cases, as with the CPSIA, Obama appointees are merely implementing regualtory statutes enacted, and signed into law, under President Bush.

William Galston, writing on TNR’s The Plank, argues Bruce Ackerman and others are wrong to suggest that General Stanley McChrystal’s public comments somehow threaten the principle of civilian control of the military.

Liberal pundits, Defense Secretary Robert Gates, and National Security Advisor James Jones are in agreement: General Stanley McChrystal, commander of U.S. and NATO forces in Afghanistan, was wrong to give public voice to his views about the best way forward in that beleaguered country. Yale law professor Bruce Ackerman accused McChrystal of “a plain violation of the principle of civilian control.” Washington Post columnist Eugene Robinson put it most bluntly: “The men with the stars on their shoulders … need to shut up and salute.” Some are even drawing parallels between McChrystal and Douglas MacArthur. All these critics are wrong.

The principle of civilian control means that once the competent civilian authorities have made a binding decision, military leaders are obligated to support it and carry it out. If they cannot in good conscience do so, they should resign. The principle does not mean that military leaders are barred from publicly expressing their best judgment as to the strategy and tactics best suited to the problem at hand before the civilian authorities have made their decision.

He notes further that the arguments for muzzling McChrystal are the same arguments used to justify the Bush Administration’s effort to silence General Eric Shinseki before the invasion of Iraq.  Further, insofar as McChrystal’s comments put pressure on the President — pressure to either deploy more troops or redefine the mission in Afghanistan — Galston believes it’s a good thing, as it limits the President’s ability to “fudge” the decision.

Bruce Ackerman’s weekend Washington Post article criticizing General Stanley McChrystal was not the first time he has raised concerns about the involvement of currently serving military leaders in political debates about national security policy.  In 2007, he wrote this article for the Financial Times criticizing comments by Major General Rick Lynch and President Bush’s use of General David Petraeus to deflect Congressional criticism of the Adminsitration’s policies in Iraq.  These incidents, Ackerman warned, were threats to the principle of civilian control of the military.

I still think Professor Ackerman is overstating his case.  I agree that it can be inappropriate for active military officers to criticize their superiors, particularly the commander-in-chief.  And it’s possible that McChrystal’s comments crossed that line (though my understanding is that his speech had been approved).  Remarks like those of Major General Lynch, had they been directed at the President (rather than a Senator), might even constitute insubordination.  But I am not convinced that either Lynch’s or McChrystal’s comments  “represent[ed] an assault on the principle of civilian control.”  It seems to me that we all benefit if public debate over military policy to be informed by the opinions and analyses of military leaders, and I would be more concerned about an overly restrictive policy, in which only the President and his closest advisors could hear the views of top military brass, than the opposite.

If the President sets a given policy goal, I think Congress and the public at large should know what military leaders think is necessary to achieve that goal.  So, for instance, if General McChrystal believes that current United States’ policy in Afghanistan would require particular measures — more troops, shifts in deployment, different rules of engagement, whatever — I think it’s a good thing if such information is public.  This makes it easier for civilians to evaluate the choices on the table.  I see this as less of a threat to civilian control as a way to ensure that military policy decisions are more transparent and our political leaders are more accountable.  If the current military leadership believes we will not be able to achieve a given goal on the cheap — and our political leaders know this — shouldn’t the public know this as well?  Perhaps this will result in a greater investment in achieving the given policy — such as sending more troops to Afghanistan.  But it also seems possible that it could result in a reconsideration of the stated policy, and perhaps a reduction in U.S. involvement.  That is, I don’t think this approach undermines civilian control in the military or makes our military policy decisions less responsive to public opinion.  Indeed, I am inclined to think it could do the opposite.  And insofar as it could “box in” the commander-in-chief, and make it more difficult to take certain actions, I am notsure why this is a bad thing.

Yale law professor Bruce Ackerman argues in the Washington Post that it was inappropriate for General Stanley McChrystal to announce his preferred Afghanistan strategy and publicly disagree with Vice President Joe Biden.  Such statements, Ackerman said, were “a plain violation of the principle of civilian control.”  The New America Foundation’s Michael Cohen makes a similar argument.

According to Ackerman,

As commanding general in Afghanistan, McChrystal has no business making such public pronouncements. Under law, he doesn’t have the right to attend the National Security Council as it decides our strategy. To the contrary, the Goldwater-Nichols Act of 1986 explicitly names the chairman of the Joint Chiefs of Staff as the National Security Council’s exclusive military adviser. If the president wanted McChrystal’s advice, he was perfectly free to ask him to accompany Adm. Mike Mullen, chairman of the Joint Chiefs, when the council held its first meeting on Afghanistan this week.

McChrystal’s “breach,” Ackerman argues, “should provoke a broader discussion of the meaning of civilian control in the 21st century.”

Ackerman’s essay raises some interesting issues, but I wonder if he’s making too much of McChrystal’s comments (as is Cohen).  There’s ample precedent for Cabinet Secretaries and other presidential appointees making policy statements in advance of a Presidential decision.  While the military is, and should, be different, I also seem to recall other instances in which it was widely known that military leaders disagreed with their civilian leadership, and yet no one saw any threat to the principle of civilian control or the President’s authority as commander-in-chief.  Presidents have removed military leaders over strategy and policy disagreements in the past, and no doubt will again, and not every general who disagrees with the President is another General MacArthur.

Benjamin Wittes is not happy with President Obama’s approach to detention and Guantanamo Bay.

President Obama’s decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism. It is bad for the country, for national security and for civil liberties. It represents a virtually wholesale adoption of the failed policies of his predecessor — who, with equal obtuseness, refused to root American detention practices in clear law approved by the legislature and similarly failed to learn from repeated Supreme Court rebukes to this unilateral approach. It violates Obama’s much-noted statement this spring that he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.” And it delegates a profound and difficult policymaking exercise to the judiciary and, ultimately, to a single man on the Supreme Court.

The article’s called “Obama’s Dick Cheney Moment.”   I wonder who’s more upset with the comparison — Obama or Cheney?

This week’s National Journal poll of political bloggers asked “What is the most likely outcome of President Obama’s health care reform initiative?” Ninety-three percent of the Left and 82 percent of the Right expected either “major” or “scaled back” legislation to be enacted in 2009. The Left was roughly split between major and scaled back. I was part of the only 12% on the Right who expect some major. I wrote: “‘Scaled back’ in the sense of no public option. The legislation will still impose huge, and mostly harmful, changes on American health care.”

The second question asked for a grade on President Obama’s foreign policy so far. The Left gave him a B, while the Right awarded a D-.  I voted for D, and explained: “From Poland to Israel to Iran to Honduras, the President has made it clear that it is safer to be America’s enemy than its friend. His crackdown on the pro-democracy government in Honduras for obeying the Honduran Constitution, and his active support for Zelaya, who is trying to become another Castro/Chavez, is despicable. Obama is much more popular than Bush among Belgians and many other Western Europeans, but Obama has been unable to translate that popularity into any results for American diplomacy.”

[Note to commenters: It appears to me that comments have to be specifically approved before they become visible. There are several comments which I have “approved”, but which are not displaying. I don’t know what the problem is. Presumably we eventually figure out how to use WordPress. ]