an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Federal Power over Elections & the Hydraulics of Congressional Power
Today’s Supreme Court decision inArizona v. Inter Tribal Council of Arizona offers something important, and surprising, to both sides in the long war over procedural and substantive restrictions on voting in the United States. The holding of the case seems straightforward and modest: When Congress says every state has to “accept and use” a common, federal voter registration form, which is what it said in the 1993 National Voter Registration Act (the NVRA, the “motor voter” law), that means what it sounds like—the state of Arizona can’t say ‘oh, by the way, in Arizona you also need to submit additional documentation with your form proving you’re a citizen, or we’ll toss out your federal form.’
National Voter Registration Form
Indeed the holding looks even more modest than that: the Court notes that Arizona is free to ask the relevant federal agency, the Election Assistance Commission (EAC) (currently hobbled by Republicans in Congress who won't confirm any Commissioners) to please include its proposed citizenship documentation requirements on the federal form, in special instructions that apply only to Arizona residents; if the agency won’t do that, the Court says, Arizona could then sue. The Court says very little about how that case might be resolved. (In a little shout-out to administrative law final exam question writers everywhere, the majority raises but doesn’t answer the question of what admin law has to say about appealing the inaction of an agency that can’t say no because it can’t act at all. “It is a nice point,” the Court says.) So on the specific fight at issue in this litigation, the Court basically seems to have kicked the can down the road. Today’s ruling nonetheless stands for at least the modest proposition that the feds, rather than Arizona, are in charge of the voter registration form and its procedural requirements. Arizona can’t just impose additional documentation requirements on its own.
However, underneath this simple, modest holding we can see some deep movement in the tectonic plates, some shifts in the balance of federal power under the Elections Clause and under the Reconstruction Powers, that might have the effect of raising the stakes in Shelby County v. Holder (the blockbuster case still outstanding this term, regarding Section 5 of the Voting Rights Act) and other cases about the modern sweep of Congressional power under the Reconstruction Amendments. Congress only has so many different powers, and when you pare back one, you raise the stakes for others. You might call it the hydraulics of Congressional power. That’s how this case will really matter in the long run.
A key concept in Mike Greve's book is the idea of "surplus." This concept helps Greve explain the political motivations for the New Deal and the way that the New Deal inverted the proper form of federal-state relations.
Greve argues that the New Deal was not, as generally believed, an increase in federal power at the expense of the states. Rather, it was an increase in government at all levels. Increases in federal power served the interests of state political elites, because it allowed them to collect more "surplus." As he points out (p. 201), "Far from trampling on the states, the expansion of federal commerce powers enhanced their capacity to collect surplus. Even the Commerce Clause, exhibit A in every account of a supposedly nationalist New Deal, was a state-friendly doctrine and a response to state demand."
The expansion of state capacities during the New Deal lead to what Greve calls "cartel federalism." As he explains early in the book (p. 4) in this cartel version of federalism states do not lose power vis a vis the federal government. Rather, they actively collude with the federal government to maximize "surplus": States will accept increased federal power "only if the move promises to enhance their surplus capacity—very roughly, their ability to tax citizens in excess of the cost of providing public services."
In competitive federalism, by contrast, "states’ attempts to collect surplus will induce exploited citizens to exit—to 'vote with their feet.' This 'Tiebout competition' will discipline the junior governments in the same way in which market competition disciplines private producers." (p. 7)
Cooperative federalism is good for individual citizens "because it promises to reduce government abuse and exploitation all levels." But it is bad for states (or more correctly, state political elites), because they want to maximize their surplus. So states will use the federal government to form what are in effect regulatory cartels. They will do so in order "to improve their position—the `power, emolument and consequence of the[ir] offices,' in Hamilton’s words; their 'surplus,' in the parlance of public choice economists. Much like private producers in economic markets, states 'as states' seek supracompetitive returns. To that end, they need a central government that stands ready to prevent competition among states and to cartelize the political market." (p. 7)
So far, so good. But what exactly does Greve mean by "surplus?" This idea provides the central motivation in Greve's book for explaining why good states do bad things. However, the word is used in different ways in different parts of the book. As far as I can determine, the term "surplus" refers to three different kinds of phenomena: Read more » Posted
by JB [link]
Michael Greve’s The Upside Down Constitution: Parasitic Federalism and the Ambiguities of Constitutional Structure
Michael Greve’s The Upside Down Constitution offers a
refreshingly different take on constitutional federalism.Whereas the Supreme Court often treats
federalism as synonymous with protecting state interests and constitutional scholars
regularly write in praise of cooperative federalism and federal-state balance,
Greve thinks both have the Constitution exactly backwards.On his account, true constitutional
federalism is all about competition among governments and efforts to protect
state interests or link federal and state responsibilities represent a
fundamental inversion of our constitutional order.Yet oddly enough, despite its novelty, the
book also reinforces a well-established truism: Federalism is a second-order concern.At the end of the day, understandings of
federalism are parasitic on underlying views about the virtues and vices of
government.Greve’s account also
showcases the challenges of reasoning from and about constitutional structure,
as well as the broad room left open in the Constitution for adapting federalism
to meet the nation’s needs.
To his credit, Greve is open about his normative
priors.He begins the book with a
discussion about the kind of federalism prospective citizens would choose if
they were designing a federalist system from the get-go.His conclusion is that they would opt for a
competitive federalism arrangement, in which interjurisdictional mobility
serves to discipline junior level governments and prevent them from exploiting
their citizens.Limited grants of power,
in turn, prevent abuse at the national level.Moreover, the model they would reject is cartel federalism, the approach
Greve contends we have today as a matter of institutional practice.Under cartel federalism the national
government and states suppress interjurisdictional competition through
expansive national regulation and joint national-state run programs.
The key precept underlying Greve’s conclusions here is
that government is not to be trusted.In
his words, individuals “could put their trust in a benevolent government, but
that is a high-risk assumption; if it proves wrong, the losses will mount very
quickly.It is safer, then, to assume
that government will be prone to abuse.” (6)Perhaps, but the losses from hamstringing government can mount pretty
quickly too.At a minimum, decades of scholarship
on contractarian theories of justice demonstrate that citizens might rationally
opt for an arrangement where government is empowered to regulate and redistribute—to
the extent that it makes sense to think about citizens as making abstract
choices about government structure at all.Put differently, the choice
between competitive and cartel federalism is parasitic on our underlying
skepticism or faith in government; there is no way to make that choice in a
normatively neutral fashion.
The Guantanamo Quagmire: What Criminal Sentencing Can Teach Us
In last month's speech at the National Defense University, President Obama renewed his pledge to close the Guantanamo Bay detention center. As initial steps, Obama lifted his prior ban on transfers of detainees to Yemen (home to approximately half of the remaining 166 detainees) and announced that he would appoint a senior envoy from the State and Defense Departments to oversee the transfer of detainees to third countries. Obama also expressed his intention of ending the transnational armed conflict with al Qaeda and associated forces (i.e., the "war on terror"), which would eliminate the basis for the continued indefinite detention of Guantanamo detainees under the 2001 Authorization for Use of Military Force (AUMF). But the conflict does not appear to be ending anytime soon. And even if Obama can overcome the substantial political obstacles to moving Guantanamo detainees to the United States, it would not resolve the underlying problem of continued law-of-war detention under the AUMF. Indeed, that problem is likely to grow more acute in light of the recent statement by the military commissions' chief prosecutor that fewer Guantanamo detainees will face charges than originally expected.
I’ve just posted a forthcoming article that suggests a new approach to this issue—one that seeks to reexamine long-term AUMF detentions through the lens of criminal sentencing. As the article explains, criminal sentencing offers two main insights: first, it highlights the importance of a judicial proceeding focused not merely on whether a person may be detained (as the current habeas litigation does), but also on how long that confinement should last; and second, it underscores the value of examining multiple factors about an individual, including whether continued confinement is proportional to that individual’s past conduct, and not merely assessing future risk (as the administrative review process now does). These two proposals are severable, as adoption of a standard that considers a broader range of factors about an individual may be implemented whether review of continued detention is conducted by a court or an administrative body, such as the current Periodic Review Board.
Criminal sentencing might, at first blush, seem irrelevant to AUMF detention, which is premised on the non-punitive rationale underlying traditional law-of-war confinement (i.e., temporary confinement intended not to punish, but merely to prevent a combatant’s return to the battlefield). However, criminal law notions of culpability and individual responsibility permeate the detention of terrorism suspects under the AUMF. Criminal sentencing, with its potential for calibrated assessments and the imposition of liberty-restrictions proportionate to an individual’s conduct, also has a greater potential to curb over-detention. It is unnecessary to determine that AUMF confinement formally constitutes punishment—thus triggering the panoply of criminal trial rights—to acknowledge that criminal sentencing can inform the design and operation of a detention review system conducted pursuant to law-of-war principles. If, as Bobby Chesney and Jack Goldsmith have previously argued, the emerging model of national security detentions properly incorporates heightened procedural safeguards drawn from criminal law in determining who may be held, that hybrid model can likewise constructively draw upon other facets of the criminal law that bear on the question of how long the confinement should last.
The aim, in short, is not simply to provide new solutions to the seemingly intractable problems posed by Guantanamo. It is also to underscore the need for a normative and conceptual shift in the evolving jurisprudence of detention, one that more accurately reflects the nature of the armed conflict the U.S. is now waging. Posted
by Jonathan Hafetz [link]
Monday, June 10, 2013
Reflecting on PRISM: The Institutional Failures that Led to Surveillance Culture
We live in a culture of secret surveillance, a topic I have written about recently, here. PRISM and the Verizon order are instances of how such a culture can manifest. And though they are the focal point of current public outrage, they are merely symptoms - the visible manifestations of a more serious ailment: institutional failures that allow the development of secret surveillance.
There are two components of secret surveillance – the act of surveillance and the secrecy under which it takes place. Importantly, neither component is necessarily problematic. Surveillance and secrecy are in fact both necessary for effective law enforcement and national security. Law enforcement agencies surely do not have to publish the names of people they are investigating and wire-tapping (with warrants!) has led to numerous convictions. The problem arises in the secrecy of the process by which we arrive at PRISM and the Verizon order. Secrecy of process threatens both the deliberative process and public accountability. There are two important measures that have contributed to this secrecy of process. I’ll take each in turn.
On the importance of nomenclature: "Surveillance state" or "police state"
I find it extremely interesting that the term "surveillance state," which Jack and I first used in our own writing about half a dozen years ago--and I am positive we were not the first--has apparently entered into ordinary discourse. Thus the New York Times, in its story today about Edward Snowden, writes that
he said he had been selective in what he disclosed, releasing only what he found to be the greatest abuses of a surveillance state that he came to view as reckless and having grown beyond reasonable boundaries.... 'If you realize that that’s the world you helped create and it is going to get worse with the next generation and the next generation and extend the capabilities of this architecture of oppression, you realize that you might be willing to accept any risks and it doesn’t matter what the outcome is,' Mr. Snowden said.
Even more interesting in this regard is Ross Douthat's column in yesterday's Times, which not only uses the term "surveillance state," but also goes on to include the following remarkable paragraph:
For us, the age of surveillance is more likely to drift toward what Alexis de Tocqueville described as “soft despotism” or what the Forbes columnist James Poulos has dubbed “the pink police state.” Our government will enjoy extraordinary, potentially tyrannical powers, but most citizens will be monitored without feeling persecuted or coerced.
So my question for the day is this: Why has "surveillance state" apparently become so widely accepted as a "neutral" term describing the present United States (and, no doubt, other countries as well, and perhaps all that have the technological capacity), while "police state," even if modified by "soft" or "pink" or, to adopt an adjective from the 18th century referring to one type of despot, "benevolent," still presumably raises all sorts of hackles and undoubtedly would generate accusations of ideological shrillness (perhaps like using "constitutional dictatorship" to refer to at least aspects of the American system, even if most of it these days is dysfunctional and incapable of any cogent action regarding many of our most crucial challenges)?
I'm far more interested in the question of nomenclature than of debating the propriety of Mr. Snowden's actions. One might believe that it is and should be a criminal offense to disclose the secrets of a surveillance or police state. That's for another discussion. I simply want to know how the contemporary United States is best described by people seeking to understand the nature of the political regime (which is far more important in many respects, obviously, than the contingent identity of the person who happens to occupy, perhaps like the Wizard of Oz, the White House. Posted
by Sandy Levinson [link]
Saturday, June 08, 2013
Shelby County v. Holder: The Yale Law Journal Online Symposium
As we all wait to hear what the Supreme Court decides to do with Section 5 of the Voting Rights Act in Shelby County v. Holder, the Yale Law Journal Online has a symposium up with four short essays on the case and its implications:
— Ellen Katz starts things off with a question: will the Court conclude that Section 5 is “A Cure Worse Than the Disease?” She argues that that would be a mistake, and that reliance on this analogy is dangerous: it “threatens to leave the underlying condition unaddressed and Congress without the power to address it.” She argues that the aspects of Section 5 to which some Justices object are really a matter of statutory interpretation rather than the statute itself, and that the right solution here ought to be reinterpretation, not constitutional invalidation.
— Looking ahead, Guy-Uriel Charles and Luis Fuentes-Rohwer argue that it’s time to start “Mapping a Post-Shelby County Contingency Strategy.” The authors imagine a new regime in which what they call institutional intermediaries—public-interest groups, advocacy organizations, even political parties—could potentially take over some important roles that Section 5 plays today. They describe this “emerging ecosystem” and imagine changes that could make it more effective.
— Justin Levitt’s essay considers “Section 5 as Simulacrum”: the imaginary statute the Court appears poised to strike down—a sort of “editorial cartoon” of the statute—as distinct from the statute that actually exists. He maps out a number of important dimensions on which the two differ, from the machinery of the coverage rules to the role that “racial essentialism and racial entitlements” play in what Section 5 permits or requires.
— My own essay for the symposium focuses on “The Dignity of the South”: the striking claim by the Shelby County plaintiffs that singling out the covered (mostly Southern) states for special scrutiny is constitutionally suspect because it violates those states’ “equal dignity.” I argue that the best way to understand this claim—which the Civil War ought to have foreclosed—is in the context of the long and surprisingly robust tradition of Southern and ex-Confederate arguments that aim to restore the lost dignity of the South. Along the way the essay discusses Chief Justice Rehnquist the amateur historian, John C. Calhoun in a toga, and zombies. (Ok, not really, but sort of.)
I learned from all the other participants’ essays; I recommend them all.
Doesn't anyone think the maps showing which states have rejected the Medicaid expansion look a bit familiar? Subtract Oklahoma, and you are basically looking at a map of the Confederacy, at least as far as the south is concerned. (Note: some of the maps available on the web are inaccurate -- you have to verify the information state by state and some legislatures are still considering the matter). But I'm sure about my own state because the Louisiana legislature just finished its session without approving the Medicaid expansion -- opposed of course by our Republican Governor Bobby Jindal. There is no question that the vast majority of the people affected -- often described accurately as "poor" and "minority" are, in fact, also "African American" and "Hispanic" and, in the South at least, tend to vote Democratic in presidential elections. The Sebelius case itself highlighted how some states, particularly such as Alabama, historically had extremely low rates of reimbursement under Medicaid which tended to exclude poor blacks from the program. But opting out of a program that would have been initially totally federally-funded really takes the anti-minority cake in my humble opinion. It is not news that obeisance to the values of federalism have historically operated against the interests of blacks and minorities. I'm afraid that when Chief Justice Roberts and six other justices paid homage to those values and created the opt-out, that also created the opportunity for the white south (now the Republican white south) to rise again. But is anyone really proud of the result? Justice Kennedy likes to argue that federalism always promotes liberty. Has the "liberty" of poor blacks and Hispanics been enhanced by the benighted actions of state legislatures operating directly contrary to their interests, actions that may actually kill some of them (as Paul Krugman points out today)? I think not! Posted
by Stephen Griffin [link]
Thursday, June 06, 2013
A Nifty Legal Dance
Many questions remain about the revelations
that the NSA has been receiving the phone records of all of Verizon’s domestic
customers, almost in real-time, apparently for the past
seven years. Among them are the fact that while it’s the FBI that asked
the secretive Foreign Intelligence Surveillance Court to order Verizon to
provide the records, the leaked FISC
order indicates that all of the data goes the National Security
Agency. [A quick caution: Readers with security clearances who weren’t
permitted to review Wikileaks documents may not want to read the order, as it’s
So why do the documents go to the NSA? The obvious answer is
that the NSA has the biggest computing and data-crunching capacity around, and
this is a LOT of data. There are some interesting legal quirks that arise from
this bisected approach, though. This post attempts to walk through them – and I
welcome corrections or comments if I’ve gone off-course somewhere.
Without getting into the allegations now being made against Judge Edith Jones (of the Fifth Circuit), a pretty good argument can be made that George H.W. Bush's decision to nominate David Souter instead of her in 1990 was the most important constitutional action of the last two decades. According to media accounts, Souter and Jones were the two finalists, and the President made a list of "pros and cons" on a pad for each candidate before going with Souter. Imagine how different the Supreme Court's doctrine would look now if Justice Jones had been nominated and confirmed. Posted
by Gerard N. Magliocca [link]
Tuesday, June 04, 2013
The Curious Case of Professor Miller's Tweet
University of New Mexico psychology professor Geoffrey Miller recently asserted via his Twitter account that you have to be thin to complete a dissertation. Criticism was swift and loud. Inside Higher Ed quotes a nutrition professor at UC Davis--one Linda Bacon--urging the University of New Mexico to take "disciplinary action" because, among other sins, Miller's tweet showed allegiance to students "who may have discriminatory attitudes." In response to the numerous complaints about the tweet, the chair of Professor Miller's department has vowed (by video "interview" nonetheless) that "we"--presumably the university--"will investigate and take appropriate measures."
You don't have to have spent much time on a university campus to recognize the performers and performances of this oft-aired drama: Professor says something stupid. Offense is taken. Stupid comment is circulated, causing more offense. Complaints are filed. Demands for justice are made. Campus officials promise an investigation and (notwithstanding a little thing called the First Amendment) raise the possibility of punishment. Nothing of importance ultimately results. The incident is forgotten. Lather, rinse, repeat.
The only interesting question in this ritual is why, out of the surely millions of offensive (or potentially so) remarks made annually in educational settings, only some, like that by Professor Miller, generate widespread attention and condemnation.
Perhaps the amount of attention is purely random. But perhaps not. I see that Professor Miller has authored a series of articles that, at least according to their titles, are not likely to have earned him Colleague of the Year from those who populate modern American academia. A few of the post-tenure works listed on the CV of this evidently prolific author: "Ovulatory cycle effects on tip earnings by lap-dancers: Economic evidence for human estrus?;" Intelligence and semen quality are positively correlated;" "Humor ability reveals intelligence, predicts mating success, and is higher in males;" "Female orgasm rates are largely independent of other traits: Implications for 'female orgasmic disorder' and evolutionary theories of orgasm;" "Women who prefer longer penises are more likely to have vaginal orgasms (but not clitoral orgasms): Implications for an evolutionary theory of vaginal orgasm;" and "Ovulatory cycle effects on tip earnings by waitresses in family restaurants." I have no idea whether any of these studies are sound (and I definitely lack the inclination to find out). But I'd wager they made a lot of noise.
With the Supreme Court poised to decide Shelby County v. Holder, here is a question: why isn't Section 5 of the Voting Rights Act (the pre-clearance provision) a form of unconstitutional commandeering? Let's say a covered jurisdiction wants to shut down a polling location and send voters across town in order to save money. Section 5 prohibits that change unless the covered jurisdiction demonstrates to the satisfaction of the Attorney General (or the district court) that the change does not have a racially discriminatory purpose and will not have a racially discriminatory effect. If the proposed change is rejected, the jurisdiction must keep the polling place open. In other words, the VRA will require the state to operate, staff, and pay for a designated polling place--and the state will lack any ability to refuse the federal command. That would seem to be exactly what Printz and New York (the Court's anti-commandeering cases) forbid.
Is there a relevant distinction? Two possibilities come to mind. (1) Perhaps the anti-commandeering prohibition is confined to Congress's use of a power under Article I (Printz and New York involved federal statutes enacted under the Commerce Clause) and so does not apply to congressional power exercised under the Reconstruction Amendments. (2) Perhaps what matters is that under the VRA state government does have the ability to avoid compliance--through the pre-clearance procedure--and so the state is no more commandeered than is a state subject to a court-issued injunction in response to a finding of a constitutional violation.
Law Schools and the University: Who is Supporting Who
The financial model of most law schools has been subject to
extensive criticism recently.Many
commentators insist that high tuition is subsidizing professors who write
little, write little of importance, or, write little of importance for “practice-ready”
lawyers. Whatever merits the model had in the past, the way in which law
schools operate is no longer viable in light of a shrinking job market,
shrinking applications and the need for more scholarships.Prominent bloggers insist that when law
school deans beg university presidents for finance support, those presidents should
insist as a condition of support the dramatic revamping of the law school
curriculum and a serious rethinking of the place of scholarship at the law school.
conversations with colleagues at the 2013 annual meeting of the Law and
Society Association suggest that depicting law school deans as begging for substantial financial "support" from the broader university is seriously misleading. Most universities insist that the law school turn over a significant percentage of tuition revenue. The ABA recommends that universities take no more than 20% of tuition revenue, but that is a recommendation only and as universities have been in financial crisis, many have demanded an increasingly higher percentage of law school tuition revenue. This means that at a great many universities, law school
tuition does not simply subsidize scholarship.Instead, revenue from the law school subsidies the women’s field hockey
team, the opera workshop, scholarships for graduate students in classics, and
several research projects in the medical school.We are told by the powers to be that the tax
on our tuition is paid by all units on campus and all units benefit to some
degree from the central spending.Nevertheless, my conversations with law professors from other institutions suggests substantial concerns with both the method by which contributions to
the central administration are calculated and the method by which general
benefits are distributed. Many law schools seem to be in the position of rural communities forced to pay a state-wide tax on cows that is used primarily to pay for mass transit.
conditions will put law school finances under considerable stress and many
internal practices will no doubt have to be adjusted as many of institutions lower class size and increase scholarships.
Still, relationships between the law school and broader university community ought to be described accurately. At least in the cases I know, no one is asking for financial support from the university community. Rather, I suspect more law school deans are merely asking that in light of new financial realities, law schools be permitted to reduce the extent to which law school tuition supports and subsidizes other university activities.
The interweb comes through again. Two people identified, almost simultaneously, Justice McReynolds's opinion in George
W. Bush & Sons Co. v. Maloy (1925), a companion case to the better-known Buck v. Kuykendall, which refers to "the
sudden increase of motor vehicles" in the 1920s.Now the question is, What was George W. Bush & Sons (a trucking company), and any relation to that George W. Bush?!
A bleg on the Supreme Court and novel technologies
I recall reading (or reading about) a Supreme Court opinion in the 1920s that referred to automobiles as a then-new technology (not using that term, but clearly referring to the automobile's novelty). The case was probably a dormant commerce clause (regulatory or taxation) case or a preemption case in which the argument was that we (the Court) ought to give states regulatory leeway to figure out how to deal with this novelty. Can anyone identify the case? (I have a vague feeling that it was written by Peirce Butler, but maybe McReynolds or Sutherland.) E-mail to me [mtushnet at law.harvard.edu] is fine.
Obama's National Security Speech--Eloquence, Yes; Change, Less Certain
President Obama's speech today at the National Defense University represents a renewed effort to frame U.S. national security policy and to impose a sense of order and coherence amid mounting criticism of drone killings and Guantanamo. While the speech could help shift the direction of U.S. counter-terrorism policy, the President's rhetorical eloquence masks deep and unresolved divides.
The President sought to grapple with the related questions of "what war" and "how long." In terms of the former, the President spent considerable time contextualizing the fight against al Qaeda as part of a broader struggle against terrorism and extremist violence. This is important. If the "war on terror" is ever going to end (more on that point below), the U.S. must internalize the reality that terrorist violence comes in many shapes and sizes, and will not cease even if al Qaeda vanished from the Earth tomorrow. The President here wisely underscored that force alone is insufficient to fight terrorism and that other elements of "soft power" must be employed to win what he described as "a battle of wills and ideas."
President Obama also reiterated that the U.S. is not at war with terrorism but only with al Qaeda and associated forces. But while this point may bear repeating, it is not new. The Bush administration took the same position, its rhetoric of a global war on terror aside. The real question has always been--and remains today--how expansive this "limited" war is (and it has expanded under Obama), and how long it will last.
Two friends made important points about m previous post. Dennis Thompson, co-author of The Spirit of Compromise, notes that the term "rotten compromise," used by the Israeli philosopher Avashi Margalit in hid book On Compromise and Rotten Compromise, identifies those compromises that are truly evil and basically to be ruled out categorically save for truly exceptional circumstances. In my own book Framed, when discussing compromises, I distinguish between the compromises on slavery, arguably truly "rotten," and that on the Senate, which was simply truly awful, but not "rotten."
My friend Akhil Amar has made another point with regard to the compromises on slavery. The three-fifths clause, for example, was far worse than extending the slave trade until 1808, as awful as that was, precisely because the latter included a time limit--it was "sunsetted--whereas the 3/5 clause, like the fugitive slave clasue, afflicted our politics forever, or at least until destroyed by the slaughter of war.
So, to return to the capitulation of Senators Leahy, Shumer, and Franken to mean-minded Republican homophobia, how does one classify it? Is it truly "rotten," which means that one should condemn them? I have a hard time believing it meets the tests for ultimate "rottenness," though, frankly, I think it comes close. But it may be a mistake to assess any given compromise in terms of some acontextual metric of awfulness; it is necessary also to ask about the goodness of what one is getting in return. That is, one really does have to engage in cost/benefit analysis. Thus the alliance with Stalin is justified because the good of defeating Hitler, for which the alliance was absolutely necessary, dominated the evils of Stalin. So it probably is necessary, against my own desire not to, to discuss the merits of the immigration bill. I.e., is it really so good that it is worth betraying one's principles, or is it only a marginal improvement over the status quo (not least because it makes the necessary path to citizenship far too long)?
But Akhil's point is also absolutely crucial: The Democrats are not entrenching Graham's bigotry into the indefinite future. What they're doing is saying, "well, we don't have the votes now to prevail, but the minute we do, we will vote to welcome same-sex partners to the US on the same terms that we're willing to accept heterosexual partners of US citizens." So, again, on the scale of compromises, this is far less bad not only than the 3/5 compromise, which required an unattainable constitutional amendment to get rid of, but even the extension of the slave trade until 1808, which entrenched that for 20 long years. Here, the compromise is "entrenched" only so long as the Republicans have enough votes to be be obstructionists. Once the immigration act is passed, then there is nothing whatsoever that should prevent the senators in question from offering a free-standing bill and doing whatever it takes to break a filibuster. This compromise may be a lot like Bush v. Gore, good for this case (or case) only. That is surely easier to accept than something truly entrenched (though it is important to acknowledge that the costs of the compromise are paid for by others).
A final point: I remain truly uncertain why a decision striking down DOMA would automatically mean the end of the prohibition on same-sex partners, even if the decision is based, as it should be, on equal protection. If it's based on "federalism," then there's simply no reason to believe that the US has a constitutional duty to recognize marital status as defined by a foreign country's law. (If there were, this would generate a potential problem with regard to polygamous marriages recognized as thoroughly legal in other systems.) Posted
by Sandy Levinson [link]
Wednesday, May 22, 2013
How (and why) rotten compromises are made (and justified?)
The Times reported earlier today on the truly disgraceful decision of Senate Democrats on the House Judiciary Committee to capitulate to Republican homophobia by withdrawing an amendment by Senator Leahy that would have allowed, in the Times's language "United States citizens to apply for permanent resident status, known as a green card, on behalf of their same-sex partners."
Senator Charles E. Schumer, Democrat of New York and an author of the measure, said that not including the provision amounted to “rank discrimination.” But he ultimately concluded, “As much as it pains me, I cannot support this amendment if it will bring down the bill.”
Similarly, Senator Al Franken, Democrat of Minnesota, said: “This is the definition of a Hobson’s choice. In my bones, I believe in equality.”
But [South Carolina Republican Sen. Lindsay Graham, up for re-election in 2014 and desperately afraid that he will be "primaried" by Ted Cruz and his friends] reflected the view of his Republican colleagues when he said: “You’ve got me on immigration. You don’t have me on marriage. If you want to keep me on immigration, let’s stay on immigration.”
Ultimately, Mr. Leahy withheld his amendment “with a heavy heart,” though he can still bring it up on the Senate floor.
Friends, now we should understand why decent people agreed to the 3/5 Clause and why FDR adamantly refused to support a federal anti-lynching bill or, for that matter, was indifferent about the non-extension of the benefits of much of the New Deal to African-Americans in the South. As Ira Katznelson demonstrates in a brilliant book, Fear Itself, on the Roosevelt and Truman presidencies, FDR needed congressional support for the New Deal, and the only way he could get it from Southern economic liberals (and former Ku Klux Klan members, like Hugo Black) was to promise that it would be, as much as possible, a "whites only" affair. And, in 1787, the only way to get a Constitution was to capitulate to slaveowners and, for that matter, to the extortionate demands of Delaware and other small states for equal representation in the Senate. As Madison said with regard to the latter, it was a "less evil" than no Constitution at all, but an evil it remained, and he was absolutely right, as was, obviously, even more the case with the aspects of the Constitution that correctly led William Lloyd Garrison to describe it as a Covenant with Death and an Agreement with Hell. But, as I myself wrote in the Times during the kerfluffle a couple of months ago about the 3/5 Clause, one sometimes has "to accept some regrettable, even “evil,” means to achieve that end. That’s the way the world works. (Think of the altogether justified alliance with Stalin to defeat Hitler.)"
But, of course, this is far too facile. Most of the readers of this blog are not likely to be affected in the least by the withdrawal of the amendment, just as the whites who decided that slavery was "worth it to get the Constitution paid no price--to some extent, of course, Virginia did pay a price for submitting to Delaware's extortion). And most of those who counseled FDR to accommodate to racism paid little or no price themselves.
One should not gussy up the character of the people with whom mpromises were made in 1787 or in the ;30s. At worst, Lindsay Graham is simply a bigot; a "best," he is a cowardly opportunist, scared of losting re-election, who after re-election, may "discover" that someone in his family is gay and, like Sen. Portman, suddenly realizes that that person deserves to be treated as a full member of our community.
Should one be condemnatory of Shumer, Franken, or Leahy, who I assume are genuinely "heavy-hearted" about having to accommodate bigotry? Is the immigration bill worth selling out one's convictions for (at least until times are more propitious--I presume that FDR would have supported an anti-lynching bill by, say, 1948)? This is a genuine question. The answer may well be yes. The best is often the enemy of the good. And, let me say, I'm not at all interested in hearing from anyone who is opposed to the immigation bill, not because there's nothing that can be said against it, but becaues that's not really my topic. Perhaps another way of defining the topic is why should Democrats capitulate to an uncompromising bigot like Lindsay Graham and the faction of the Republican Party for which he speaks? Is it a good enough response to say that without getting their votes, there is no immigration bill, and one properly pays the "necessary" price to get the greater good (even if those actually bearing the cost are fellow American citizens who happen to be involved in same-sex relationships)?
UPDATE: This just in from Gail Collins's column in the Thursday, May 23, Times:
The most painful low point in the committee’s deliberations came at the end, when the Democrats gave up on an amendment allowing same-sex spouses the same right as heterosexuals to apply for permanent resident status for their partners. It’s not every day when you hear a senator announce that he had decided to support a move that involved “rank discrimination.” But the Republicans who were needed to get an immigration bill through the Senate had made it supremely clear that if any hint of gay marriage entered the legislation, they were going to take their toys and go home.
Decide for yourself how you feel about this one, people. Stand up for equality or finally get a major bill through the Senate? Defend equality or cave in and hope that the Supreme Court bails you out when it rules on the Defense of Marriage Act next month?
She makes a very good point. Presumably, if the Court does strike down 'DOMA, as most people seem to think it will--and if it does it, as it should, on equal protection rather than "federalism" grounds--then that might mean that such a bigoted provision of the revised law, assuming it passses, would be unconstitutional. I say might because existing doctrine is that the US, as a "sovereign power," has plenary (unfettered) discretion to determine who comes in to the country. Posted
by Sandy Levinson [link]
Thursday, May 16, 2013
"Declare Victory and Get Out?" The Future of the AUMF
Today the Senate Armed Services Committee is conducting a hearing into the future of the September 2001 AUMF. Over at the informative Lawfare blog, the two options on offer are to replace it with an authorization tailored to the new circumstances of a dispersed war against many different terrorist groups or, in the words of Steve Vladeck and Jennifer Daskal in yesterday's NYT, to "declare peace" and get out. In a world in which we did not have to contend with political parties, I would favor the latter option. What my book Long Wars and the Constitution calls the "9/11 War" against al-Qaeda and the Taliban is overdue for a breathing space in which we can assess it from a distance. Presidents Bush and Obama certainly haven't helped -- try to recall a fundamental policy statement in which either president set forth meaningful criteria for success or failure. It's as if the presidents don't want the war to end. Why might that be? In Long Wars, I reject answers based on eighteenth-century theories about presidential motivation. In other words, it's not because they are power-hungry or want to expand the so-called "imperial presidency."
My title is a reference to Vietnam. There may have been a moment during that war when key elements in both parties could have supported leaving South Vietnam, even knowing that this may have eventually guaranteed victory by the North. In addition, there is plenty of evidence we are now in a sort of post-Vietnam moment in which a war-weary public and substantial elements in both parties are questioning the purpose and costs of a permanent war against a now ill-defined terrorist threat. Hence declaring victory or peace or both is more realistic than many in the DC village might concede.
Yet the logic of the argument I present in Long Wars urges caution, since we still must contend with polarized political parties. This means concretely that President Obama knows he will be blamed for any future terrorist attack, when it succeeds or fails. That means to create the kind of breathing space we need, members of Congress would have to agree to, yes, blame themselves as much as the president in the case of a future terrorist strike. Or move beyond the politics of blame. Is this beyond them? If you think so, this counsels either reworking the AUMF along the lines suggested by Professors Chesney, Goldsmith and Waxman or at least staying with the current AUMF and admitting we want the president to do everything he can to protect us. If you (and I'm really talking to Congress here) can bring yourself to trust that the government is doing everything it can to prevent another terrorist strike and hence not go looking for someone to blame when it happens, we can all create a breathing space for peace together. If, however, you want to retain the option to blame the president and the executive branch, then you will have to give them the power to prevent those attacks. The best way to do this is openly and democratically. But if you can't bring yourself to do this, the president will remain in the same position, responsible for now covertly preventing an attack in a way that may result in a constitutional crisis in the future. That's the dilemma past presidents have faced, given the dysfunctional structure of what I call the post-1945 constitutional order.
David Ignatius is simply the latest leading pundit who demonstrates an incapaity to connect the dots relevant to his own analysis. In a column in the May 16 Washington Post, he says many altogether correct things. Writing of the current scandals, he says, "What should frighten the public is not the federal government’s monstrous power but its impotence....." The only thing that Congress can do is engage in highly partisan "investigations" most of which simply can't be taken seriously (such as the sudden emergence by non-libertarian Republicans as stalwart defenders of the press after earlier behaving like mad dogs with regard to "security leaks" and demanding that no stones be left unturned in efforts to catch leakers." No doubt there is some criminal stupidity worth investigating vis-a-vis the IRS, but equally worth investigating, of course, iw the ability of big money to game the IRS system by corrupting our political system and getting tax exemption for doing it. No doubt the response of the cowed IRS will be shutting down any serious investigation of 501(c)4) groups at all, so that the American taxpayer can in effect subsdizaie our own further descent into plutocracy.
What Congress cannot do, in any serious sense, is to legislate about the problems that face us. There are, lf course, many explanations, but surely a part of the explanation must be our 18th-century Constitution drafted by people who had literally no comprehension of what the American political process would fairly quickly become and foisted on us a byzantine system of "checks and balances" that allow well-located veto groups to make a sham of our pretense to being a "democracy" or, more seriously, to be able to confront the most serious problems that face us. It's so much easier for peoplel like Mr. Ignatius to complain that there's too much bickering in Washington and that we need more "adults" who can take charge. I see no reason to open this to comments since, as should be obvious, I'm clearly not making anything resembling a new point, but simply venting, once more, at the remarakble blinkers that even our best pundits (as Mr. Ignatius often is) seem to wear whenever they write about the dysfunctionalities plaguing the American political system.
UPDATE: The lead story in today's NYTimes is "An Onset of Woes Raises Questions on Obama Vision," by Peter Baker. Its theme is his inabilty to "master his own presidency," though there is one glimpse of recognition that he may be confronted "by partisanship and forces beyhond his control." It never occurs to Mr. Baker (or, for that matter, any of the NYTimes' political reporters) that one of those "forces" is the Constitution itself. And President Obama, as a well-trained Harvard lawyer, was, one suspects, never asked to question any of the structural features of the Constitution even as he got probably the best legal education available on how to analyze cases decided by the United States Supreme Court. I've compared myself on earlier occasions to Paul Revere or Cassandra. Perhaps a better comparison is Noah--don't you see the rainclouds accumulating?--but, alas, I can't build an ark because the problems facing us have to confronted collectively--rugged individualism is useless, unless you're a bitter-end survivalist who looks forward to nuts and berries--or not at all. A truly cogent "vision" would be altogether too scary, so better to pretend that the failings are Presidential detachment or Republican perfidy (both of which may well be part of the problem, to be sure) instead of anything more basic. Posted
by Sandy Levinson [link]
At today's press briefing by Jay Carney at the White House, one reporter stated, in a tone suggesting that he was making an important point, that "This administration has prosecuted twice as many leak cases as all previous presidents combined." (That's the version of the statement that I could find in quick search, but I don't vouch for its word-for-word accuracy.) Carney responded that some of the prosecutions were the culmination of investigations begun before the current administration took office, which could be true, for all I know.
The more important point is that the statistic is completely meaningless no matter what. After all, the premise is that prior administrations were conducting the "right" number of prosecutions. But, maybe they were failing to prosecute enough cases.