Archive | August, 2013

Thoughts on the Text of the Obama Administration’s Proposed Authorization to Use Military Force in Syria

Co-blogger Dale Carpenter rightly poses the question of what an authorization to use military force in Syria would actually authorize. The Obama Administration has just released the text of its proposed congressional resolution, which might help answer that question. Here is the most important part:


(a) Authorization. — The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to —

(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or

(2) protect the United States and its allies and partners against the threat posed by such weapons.

This wording is narrow in one sense, but very broad in another. It is narrow in so far as the purpose is limited to dealing with chemical weapons and other WMDs, as opposed to pursuing broader objectives such as the overthrow of the Assad regime. It’s broad, however, in the sense that it allows the president to use force against a wide range of possible adversaries, not just Assad and his government. For example, it is certainly broad enough to allow Obama to target the Syrian rebels if he determines that they have chemical weapons or are likely to acquire them soon. The radical Islamist terrorists among the rebels surely qualify as “terrorist groups or other state or non-state actors” that the resolution would allow the president to target if it seems likely that Syrian WMDs [...]

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What Will A Proposed Authorization for Military Force in Syria Authorize?

Now that the president has vowed to seek Congress’s approval even for what he promises will be very limited military action in Syria, an interesting question arises. What will the authorization authorize him to do? 

The president will want an expansive resolution, allowing him maximum flexibility to do what he thinks necessary to accomplish what he determines to be the goals of military action.  Skeptics on the right and left will push for a narrower authorization, carefully circumscribing his authority to a limited response to the use of chemical weapons by Syria.  Some of the issues that may arise relate to the purpose, scope, and duration of the intervention.  Will the authorization state the purposes of the intervention (punishment, deterrence, disabling the regime’s ability to use chemical or other forbidden weapons, protecting civilians, etc.) and then try to limit the authorization to those purposes?  How much flexibility will the president have to respond to unexpected developments, like a post-bombing retaliation by Syria against its neighbors or retaliation by terrorist groups or nations like Iran?  Will the authorization be sunsetted, or will it be temporally open-ended?  Will Congress attempt to select the type or magnitude of force that might be used by, for example, limiting it to air strikes rather than to the introduction of ground troops? 

As we’ve already seen in the run-up to this proposed intervention in Syria, the specter of the Bush era will hang over the debate.  After 9/11 there was some debate over the substance of the eventual Authorization for the Use of Military Force (AUMF).  The Bush administration wanted maximum executive power, including a specific provision authorizing the president to order military force within the United States itself.  While that language was ultimately omitted, the final version of the AUMF opted for breadth:

[T]he President

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Obama Will Seek Congressional Approval for Military Intervention in Syria

President Obama announced today that he will seek congressional approval for US military action against Syria in retaliation for the Assad regime’s use of chemical weapons [BUT SEE IMPORTANT UPDATE BELOW]:

President Barack Obama said that the United States “should take military action against Syrian targets” in a Rose Garden address Saturday. However, he said he would seek congressional authorization when federal lawmakers return from recess.

The president appealed for congressional leaders to consider their responsibilities and values in debating U.S. military action in Syria over its alleged chemical weapons use.”Some things are more important than partisan differences or the politics of the moment,” he said. “Today I’m asking Congress to send a message to the world that we are united as one nation.”

In previous posts (e.g. – here and here), I have argued that congressional approval is constitutionally required for anything more than an extremely small attack. In addition, congressional authorization would strengthen the political support for any intervention, and thereby increase the chances of success. So I very much welcome Obama’s decision to seek congressional authorization. This wise decision stands in sharp contrast with the administration’s approach to the Libya intervention in 2011, where Obama violated both the Constitution and the 1973 War Powers Act by failing to secure congressional authorization.

If Obama fails to get congressional authorization, that might damage US credibility. Obama would then have to retreat from his threat that the use of chemical weapons by Assad crosses e a “red line” that would result in military retaliation. But, as Charles Krauthammer suggests, such a setback would be less harmful than a small-scale strike that fails to achieve any real benefit because it is not enough to deter Assad from future atrocities or accomplish any other worthwhile goal.

Republican senators John McCain [...]

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Events in Salt Lake City and Chicago Next Week

If you’re in Salt Lake City, you might be interested in this event: Next Thursday at noon, I’ll be speaking at a CLE luncheon for the Constitutional Law Section of the Utah Bar. I’ll be joined by co-conspirator and University of Utah law professor Paul Cassell, as well as professors Carissa Hessick and Amy Wildermuth, and we’ll be talking about interesting cases likely to be decided by the Supreme Court next term. Details are on the Utah bar website.

If you’re in Chicago, you might instead be interested in this other event: Next Monday at 7, I’ll be attending the final performance of “Men and Dogs,” a play written and directed my brother Jonathan Baude as part of the Chicago Fringe Festival. It’s a play about Leon Czolgosz, who assassinated President McKinley in the name of anarchism but whose true motivations are surprisingly obscure. [...]

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VA Must Extend Benefits to Married Same-Sex Couples, District Court Says

In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status.  So far, in contrast to their almost open resistance to Lawrence v. Texas, lower federal courts are also reading the decision expansively.  Today, a district court in California granted summary judgment to a married lesbian veteran who was denied added disability benefits that would have been available if she had been married to a man, even though the denial did not rest on DOMA.  The brief opinion is here

The Department of Veterans Affairs had taken the position that Windsor struck down only DOMA, not the specific provision of federal law under which veterans’ benefits are determined and that independently defined a “spouse” as “a person of the opposite sex.”  38 U.S.C. Section 101 (c) .  The law stood, said the VA, until Congress changed it or a court struck it down as unconstitutional.  (The Bi-Partisan Legal Advisory Group withdrew its defense of litigation like this after Windsor.)

The district judge determined that, in light of Windsor, Title 38’s limitation of benefits to opposite-sex spouses was not rationally related to the federal government’s interests in promoting gender equality, expanding veterans’ benefits, ensuring that servicemembers reach their maximum potential, promoting unit readiness and cohesion, or enhancing recruiting and retention. 

Quite aside from its significance on the issue of same-sex marriage, one consequence of Windsor could be that federal courts are gradually accepting heightened scrutiny when it comes to discrimination against homosexuals.  A second possibility is that, apart from increased skepticism of anti-gay discrimination, Windsor will lead to a further erosion [...]

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“Nine Questions About Syria You Were Too Embarrassed To Ask”

A very helpful explanation from Max Fisher at The Washington Post. From the introduction:

The United States and allies are preparing for a possibly imminent series of limited military strikes against Syria, the first direct U.S. intervention in the two-year civil war, in retaliation for President Bashar al-Assad’s suspected use of chemical weapons against civilians.

If you found the above sentence kind of confusing, or aren’t exactly sure why Syria is fighting a civil war, or even where Syria is located, then this is the article for you. What’s happening in Syria is really important, but it can also be confusing and difficult to follow even for those of us glued to it.

Here, then, are the most basic answers to your most basic questions. First, a disclaimer: Syria and its history are really complicated; this is not an exhaustive or definitive account of that entire story, just some background, written so that anyone can understand it.

UPDATE: I have expanded the post to give readers a better idea of the contents of the link. [...]

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Pawn Shops Boom as Consumer Retail Banking Retreats

Well, its not like I didn’t predict that a boom time for pawn shops would be coming in the wake of the Durbin Amendment, Credit Card Act, restrictions on overdraft protection, CFPB, etc.  And now the New York Times reports that the past few years have in fact boomed as an increasing number of consumers, including higher-income consumers, have been pushed out of the mainstream financial system:

How fast the pawnshop industry is growing is unclear, but the industry association estimates there were 10,000 pawnshops in early 2012, the latest figures available, compared with about 6,400 in 2007. That expansion is, in part, fed by the rising number of Americans whose tarnished credit effectively bars them from the mainstream financial system. The growth has attracted the attention of the Consumer Financial Protection Bureau, a recently formed regulator that has been scrutinizing pawnshops, along with other nonbank lenders like payday loan operators.

EZCorp, a publicly traded operator of pawnshops, reported that total loan balances swelled 22 percent to $44 million in its most recent quarter.

Another publicly traded lender, Cash America International, told investors in June that the company’s fortunes were growing as more “traditional consumer lenders are exiting the market.”

This being the Times, of course no mention is made of the Durbin Amendment or these other regulations that have taken away higher-quality options for many consumers.

One idiosyncratic factor that is not mentioned in the Times article that has also contributed to pawnshop growth specifically has been the consistently high gold prices over the past few years.   Of course, recognizing the role of high gold prices also would implicitly require the Times to believe that consumers who use alternative financial services act in a somewhat rational manner given their constraints, so it may have simply not occurred [...]

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Liability for Texting Driver

Kubert v. Best (N.J. Super. Ct. App. Div. Aug. 27, 2013) holds:

We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.

I’ve been critical of various extensions of tort liability in the past, but this decision strikes me as quite sensible. Say Sally sends a message to Don, who is driving; Don reads the message, is distracted by it, and hits and injures Paul.

Don has a responsibility to act reasonably when his conduct — driving and reading text messages — foreseeably creates a risk of harm to others, so he’s liable for reading the message when he should have been paying attention. But Sally also has a responsibility to act reasonably when her conduct (sending text messages) foreseeably creates a risk of harm to others, and that’s so even though the risk is produced only as a result of the combination of her conduct and Don’s.

If Sally were sitting in the passenger seat and doing things that she knew would likely seriously distract Don, and Don got into an accident as a result, both she and Don would be liable. That Sally is distracting Don remotely doesn’t, I think, change the analysis, if she knows or has special reason to know that Don would view the text while driving. To quote the court,

One form of [tortious] interference with a driver might be obstructing his view or otherwise diverting his attention from the tasks of driving. It would be reasonable to hold a passenger liable for causing an accident if the passenger obstructed the driver’s view of the road, for example, by

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Four Points on Syria

1. “Internal” Separation of Powers. Forget whether President Obama went through Congress, or the Security Council, or even our NATO friends. The real question is if the Administration wants to prevent atrocities in Syria, why turn to the Navy? Isn’t this the job of the Atrocities Prevention Board?

2. More Evidence of Evolution.

Barack Obama put the Bush era decisively behind him today in a speech to the United Nations in which he rejected unilateralism in favour of countries working together to tackle problems ranging from the Middle East to Iran and North Korea.

… At the heart of his speech, he promised to work with the UN in a way that Bush had not.
From 2009.

And in 2008: “President-elect Barack Obama on Monday emphasized diplomacy, internationalism and alliances as he laid out a national security outlook far from President George W. Bush’s more unilateral approach..”

3. I do not understand the obsession with chemical weapons. It is a grisly way to kill people. So are machetes. I assume the only reasons the Syrian rebels aren’t using them (if they are not) are technical: they make the hearts and livers taste bad afterwards.

4. The most damaging news from Britain yesterday was that Assad had used such weapons 14 times. If true, it is hard to imagine the deterrent or punitive message a U.S. attack now could serve. First baker’s dozen of gassings come free? For weapons of mass destruction, 13 is a lucky number? [...]

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Does Congress Have the Power to Enact A General Ban on the Use of Bugging Devices?

Since 1968, federal law has prohibited the use of bugging devices — secret microphones — to record private conversations. Here’s the relevant text:

[A]ny person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . . oral . . . communication [is guilty of a crime and commits a civil violation] [18 U.S.C. 2511(1)(a)]

Here are the definitions of two key terms, “oral communication” and “intercept”:

“oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation [18 U.S.C. 2510(2)]

“intercept” means the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device [18 U.S.C. 2510(4)]

The basic idea is to criminalize listening in on someone’s private conversation using a recording device. The law applies both to the government and to private parties, and it provides for both criminal and civil remedies. On the whole, it’s a sensible criminal and civil law.

But is it constitutional? Does Congress have the power to broadly prohibit the use of bugging devices? I don’t think it does. In this post I’ll explain why.

It’s helpful to start in a somewhat unusual place, with the legislative history. It’s helpful because it shows that the drafters of this provision knew perfectly well that they were on constitutional thin ice with this law. Here’s the remarkable discussion from the 1968 Senate Report:

The broad prohibition of [18 U.S.C. 2511(1)(a)] is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress

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“Country Music is … Like Benjamin Franklin.”

Pseudonymous blogger and political theorist “Miss Self-Important” has an interesting and entertaining post in defense of country music that I thought I’d share. My two favorite passages:

Country music’s virtue is its adherence to the view that music has real emotional power, and that lyrics are part of that power. If a song bothers with lyrics, the lyrics must be coherent. They don’t have to be sophisticated or edgy (in fact, they should probably never be so), but they should assume a language-enabled audience that connects words to music and can be moved … by the combination.


The “closedness” argument that country music is about fearing change and clinging to the good ol’ way of living assumes that it’s completely sincere (as angsty pop music is) — it’s really by and for naive rubes who’ve never left Festus, Missourah and are terrified by all the cosmopolitan modernity swirling around them. But country music is much more like Benjamin Franklin at Paris in his fur cap posing as the simple colonial that the French imagined all Americans must be, while securing war loans from them and bagging their wives for good measure. … Country music has in fact heard of and experienced Manhattan and corporate finance and divorce and the importance of whole grains in a healthy diet, and it is not impressed or convinced that these things supersede its own narratives.

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Obama May Plan Only a Very Limited Intervention in Syria

In reaction to Britain’s refusal to take part in military operations against the Syria government, Obama administration officials are saying that the operation they plan is so limited that they won’t need much allied support:

President Barack Obama is prepared to act without Britain, officials said, noting that unlike U.S. involvement in the 2011 military operation in Libya, the options under consideration in Syria are smaller-scale and wouldn’t require a coalition to be effective.

“Here, what’s being contemplated is of such a limited and narrow nature that it’s not as if there’s a similar imperative for bringing in different capabilities from different countries,” a senior administration official said. “We believe it’s important that there be diplomatic support from key allies, and we think we’re getting that.”

If the operation is “limited and narrow” enough, it could obviate not only the need for British support, but also the constitutional requirement of congressional authorization, which only applies to offensive action large-scale enough to qualify as a “war” (setting aside the difficult question of the exact point at which a military engagement becomes big enough to be a “war.”) The problem is that a very small-scale action might not actually be enough to accomplish anything – especially if Assad and his government know in advance that a small-scale attack is all they have to worry about. If Assad believes that using chemical weapons and killing large numbers of civilians are necessary for him to stay in power, he’s unlikely to stop just because we hit him with a minor attack that he knows will soon end. If, on the other hand, Obama intends to launch a larger offensive should the small one fail, then both proper constitutional authorization and allied support would be desirable.

It’s hard for me to say whether [...]

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It’s a Been a Hard Day for Distinguishing the Satirical Pieces from the Real Ones

So says my friend Walter Olson.

Here are two examples:

(1) Slate: If You Send Your Kid to Private School, You Are a Bad Person “Reading Walt Whitman in ninth grade changed the way you see the world? Well, getting drunk before basketball games with kids who lived at the trailer park near my house did the same for me. In fact it’s part of the reason I feel so strongly about public schools.”

(2) New Yorker: OBAMA PROMISES SYRIA STRIKE WILL HAVE NO OBJECTIVE “Attempting to quell criticism of his proposal for a limited military mission in Syria, President Obama floated a more modest strategy today, saying that any U.S. action in Syria would have ‘no objective whatsoever.'”

Only one of these is satire. [...]

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Size Still Matters in the Federal Government’s War on Marijuana

Co-blogger Will Baude makes a good point in noting that the Justice Department’s new memo on federal marijuana enforcement takes a more favorable tone towards large state-licensed marijuana businesses than its 2011 predecessor. Unfortunately, however, this is only a very minor shift.

The new memo states that prosecutors should not use “the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities.” But that means that size can still be emphasized – even very heavily – so long as it is considered in conjunction with other “available information and evidence.” Thus, US attorneys who want to target large marijuana operations can still do so. This is especially true once we remember that, even in states where marijuana is now legal, the memo actively encourages prosecutors to go after marijuana enterprises that impinge on any of eight broadly worded “federal priorities,” or any other “important federal interest.” With respect to many of those interests, it is easy to argue that a larger enterprise might threaten them more than a smaller one. For example, the larger the commercial operation, the more likely it is to produce at least some marijuana that might be “diverted, directly or indirectly, and purposefully or otherwise, to minors,” or result in the “diversion” of some marijuana to states where it is still illegal.

The new memo’s less hostile tone towards large producers might make a difference at the margin. Prosecutors who already prefer to avoid marijuana prosecutions might feel slightly more empowered to do so. But the new memo provides little real protection for large-scale commercial marijuana operations in states where they are now legal. [...]

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