Is Justice Scalia a Closet Purposivist?

In Part 2 of his critique of my FindLaw column on the Presidential Oath, Ed Whelan argues that I am mistaken in saying that self-proclaimed textualists like Justice Scalia cannot in good faith divine purposes in statutes. Whelan quotes Justice Scalia's essay/book A Matter of Interpretation, in which Justice Scalia says that judges engaged in statutory construction should look for a statute's "'objectified' intent," which, Whelan says---and I agree---is not different in substance from what I called a statute's "objective purpose." However, it's not entirely clear that Justice Scalia was saying judges should look for objective purpose; he may only have been saying that's what they in fact do seek, or what they traditionally have sought, when purporting to look for legislative intent. The relevant passage occurs at page 17 of Justice Scalia's essay/book, in the course of a critique of legislative intent. But I'm willing to grant Whelan this point and concede for argument's sake that Justice Scalia does say here that it's okay for judges to look for a statute's objective purpose.

Nonetheless, elsewhere Justice Scalia and other self-described textualists attack objective purpose. For example, here is what Justice Scalia says about the hunt for a legislative purpose on the very next page of his essay/book:

When you are told to decide, not on the basis of what the legislature said, but on the basis of what it meant, and are assured that there is no necessary connection between the two, your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant; and that will surely bring you to the conclusion that the law means what you think it ought to mean.

Now Whelan and others might say that in this passage Justice Scalia is only attacking a kind of purposivism that looks for a purpose that has "no necessary connection" to the text; by implication, he would be okay with deriving purpose from the statutory text itself. But that simply poses the question of how, if the text does not set forth its purpose expressly, a textualist judge is supposed to infer the purpose. The textualist cannot rely on evidence of subjective intent. Nor, apparently, can he ask "what a wise and intelligent person should have meant."

Aha, but perhaps Whelan or Justice Scalia will say it's permissible for the judge to attempt to discern what a wise and intelligent person would have meant. In this reading (which Whelan apparently endorses), Scalia only objects to very broad purposes that judges impose on statutes from the outside. Yet in some of his judicial decisions, Justice Scalia has criticized even the more limited "objectified intent" approach. Consider the 1998 case of Lewis v. United States. Concurring separately in a decision interpreting the federal Assimilative Crimes Act, Justice Scalia objected to the majority's approach, where the majority was in fact applying something very much like "objectified intent." Justice Scalia nonetheless fretted that the majority's quest would "simply transform the [statute] into a mirror that reflects the judge's assessment of whether assimilation of a particular state law would be good federal policy." (The majority in Lewis cited an earlier decision that had discerned the Act's "basic purpose" from, among other things, legislative history, but Justice Scalia himself thought the underlying precedent sound even without recourse to legislative history.)

Moreover, other self-described textualists go further. A classic in the textualist field is a short 1983 law review article by Judge Frank Easterbrook titled Statutes' Domains. Easterbrook there sets forth the standard public-choice argument against using a statute's purpose---even its objective purpose---to discern its application to concrete cases: statutes serve multiple, conflicting, purposes, and do not pursue any of their purposes at all costs; to single out any purpose is to ignore the fact that statutes are invariably bundles of compromises. This argument, with which Justice Scalia has not, to my knowledge, disagreed, leads Easterbrook to something like the "strict construction" that Justice Scalia disavows.

So, does Justice Scalia support looking for "objectified intent" or not? If yes, his position does not differ from that of purposivists. It would still differ from the position of subjective intentionalists, but there aren't that many of those folks around: In the responses to Scalia's essay contained in his book, for example, both Ronald Dworkin and Laurence Tribe say they agree with Scalia that courts should not look for subjective legislative intent. In his response essay, Justice Scalia takes issue with Dworkin and Tribe on a number of points, but they are in agreement in rejecting subjective intent. The rejection of subjective intent is not enough to mark textualism as a distinctive jurisprudential philosophy.

If Whelan is right that Justice Scalia can, consistent with his jurisprudential priors, discern objective statutory purposes, that would appear to be because Justice Scalia's textualism is not different in kind from the interpretive philosophy of many mainstream liberals. True, Justice Scalia thinks that the meaning of statutory (and constitutional) texts is frozen at the time of their enactment, but that view---originalism---is not a view we can plausibly attribute to texts as such. One could be a dynamic textualist or a static textualist.

Bottom Line: If credited as true, Whelan's defense of Justice Scalia's textualism (as practiced by Justice Scalia and, to a lesser extent, Chief Justice Roberts) shows that Justice Scalia does not hold a distinctive position on the primacy of enacted text. I hope Whelan is right about that. I fear he is wrong.

Posted by Mike Dorf

No Fairness Doctrine for PETA

"STUDIES SHOW VEGETARIANS HAVE BETTER SEX" proclaims the ad (see above) that PETA wished to run during the Superbowl. As reported (e.g., here), NBC declined to run the ad because it "depicts a level of sexuality exceeding [NBC] standards." (Full list of objections here). Herewith, a few observations:

1) The rejection of the ad---and its subsequent viewing on Youtube and elsewhere---is arguably a boon to PETA. Going "viral," the ad may get viewed and discussed as much as or more than it would have if it had run during a Superbowl timeout, and PETA saves the cost of the advertising buy. Indeed, one wonders whether PETA didn't hope to have the ad rejected for just these reasons.

2) I question the ad's efficacy in getting people actually to "Go Veg." Sure the ad will be watched a lot, but it's hard to imagine a lot of grocery shoppers, in deciding between the pumpkin and the hamburger, thinking "Hmm, I like the taste of red meat but if I buy this pumpkin I can . . . er . . . take it home and have a supermodel come over and lick it. Yeah, I'll get the pumpkin." Another PETA ad (just below) makes the related point that meat consumption can cause impotence.



3) Perhaps some people will stop eating meat, or eat less meat, out of fear of impotence, but this strikes me as an odd advertising choice for People for the Ethical Treatment of Animals. If---as I believe along with PETA---it's unethical to harm or kill sentient animals for food and clothing---then it would be wrong even if it had no adverse effects on human health.

4) Okay, I get the real point of the ad: both to generate publicity for PETA, driving traffic to its website, and more broadly to change the image of vegetarians and vegans from that of under-nourished hairy nerds to sexy.

5) Is the ad sexist? Sure, in the same way that a great many ads that use female bodies to sell products are. This one is a bit more explicit but that goes to its sexyness, not its sexism. (Props to Nigel Tufnel).

6) Predictably, PETA argues that the real reason NBC banned the ad was its pro-vegetable/anti-meat message. This would be plausible if PETA could point to NBC's rejection of such ads when they did not contain sexual content.

7) Suppose PETA could do that. Even then, NBC would be acting within its legal rights. Federal statutory law requires licensed broadcasters "to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a non-commercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy." In addition, prior to the Reagan Administration, the FCC enforced the "fairness doctrine," which required broadcasters to devote some time to speech by people with a variety of viewpoints on controversial issues.

8) In 1969, in the Red Lion case, the Supreme Court upheld against a First Amendment challenge one aspect of the fairness doctrine: a right-of-reply for political candidates. However, the decision rested in substantial part on the fact that the electromagnetic spectrum is scarce, and that with only a small number of channels, Congress could insist on viewpoint diversity as the price of an exclusive frequency license. However, with the advent of satellite, cable and internet tv offering thousands of options, the scarcity rationale seems weak.

9) Thus, if the FCC or Congress were to attempt to re-enact and extend the fairness doctrine so as to prevent tv stations from excluding viewpoints like PETA's, there is some doubt as to whether such a regulation or law would be upheld against a First Amendment challenge.

10) But in any event, any such attempt to create a new fairness doctrine would likely be overwhelmed by technology. Many people watch the Superbowl ads because they are especially creative (and because many Superbowl viewers are not all that interested in football). However, in general, commercial advertising on television is a dying form due to DVRs and other technology. To get viewers to watch ads, television show producers must increasingly include them in the storylines of their shows. That integration---annoying as it is to many viewers---very much strengthens the argument of the shows' producers that they should have the right to reject advertising based on content. It's easy enough to show your main character drinking a Coke or driving a Prius. It's much harder---and more disruptive of artistic control---to show him or her listening respectfully to a speech questioning the scientific basis for global warming.

Posted by Mike Dorf

The Departed

Continuing my oscillation between feeling optimistic and pessimistic, I thought that it would be invigorating to take a moment to bid farewell to some of those who are no longer in positions of power in the United States government. What follows is a partial alphabetical list of people who served (or tried to serve) within the last eight years and whose departure from office surely enriches us all:

Former Vice Presidential Chief of Staff David Addington
Former Senator George Allen
Former House Majority Leader Dick Armey
Former Attorney General John Aschroft
Former Secretary of State (Ohio) Ken Blackwell
Former U.N. Ambassador John Bolton
Former President George W. Bush
Former Vice President Dick Cheney
Former Senator Larry Craig
Former Press Secretary Ari Fleischer
Former Senate Majority Leader Bill Frist
Former Presidential Candidate Rudy Giuliani
Former Attorney General Alberto Gonzalez
Former something-or-other Monica Goodling
Former would-be Treasury Secretary Phil Gramm
Former Representative Katherine Harris
Former House Majority Leader Tom DeLay
Former Vice Presidential Chief of Staff Scooter Libby
Former Senate Majority Leader Trent Lott
Former Senator Zell Miller
Former Secretary of the Interior Gale Norton
Former Secretary of the Treasury Henry Paulson
Former Secretary of Defense Donald Rumsfeld
Former Senator Rick Santorum
Former Senator Ted Stevens


Seeing the word "former" in front of those names makes my day. This is merely the first 25 whose names came to mind. Surely there are others whom I've already blocked from my memory.

-- Posted by Neil H. Buchanan

I Stand Corrected (on a point of no real importance)

Conservative lawyer/pundit Ed Whelan notes on the online version of the National Review that my FindLaw column earlier this week erred in stating that the only official acts of any importance that President Obama took between his first and second oaths were the signing of two executive orders. Not so, Whelan notes. He also officially nominated various Cabinet and sub-Cabinet officials. Thus, if Obama needed to recite the oath correctly to be able to have his Presidential acts count---a point that both Whelan and I doubt but that my column assumes for the sake of argument so as to explore other issues---then these nominees would have to be re-nominated and re-confirmed to exercise power lawfully themselves. Neat!

Apologies from me for not noticing that these nominations were made official on Day 1---although, truth be told, this fact actually makes the main argument in my column more relevant. Because I wrongly assumed that all Obama did was sign the executive orders, I had to manufacture a hypothetical case in which the botched oath might make a difference. It turns out I could have used the real example of the nominees.

In light of the tangential (albeit sloppy---okay, I said I was sorry!) nature of the error, Whelan is a bit harsh in concluding that "Dorf’s essay . . . is deficient." Deficient? Really? No doubt the real deficiency Whelan has in mind will be exposed in his eagerly anticipated Part 2, in which he'll "address the core of Dorf’s argument and explain why his [i.e., my] claim that textualists can’t fairly read the Oath Clause as being satisfied by substantial compliance with its terms is baseless."

"Baseless" rather than merely "mistaken" or "questionable" is a pretty high bar, especially when one considers that I did not exactly say "textualists can't fairly read the Oath Clause as being satisfied by substantial compliance with its terms." I said it would be hard for them to do so. My exact words were: "even if we know that, in practice, Chief Justice Roberts would not deny that President Obama had the power to execute his office before the oath was re-administered, Roberts himself – in light of his textualist sympathies -- would be hard-pressed to explain why." So, for Whelan to show that my argument was wrong, much less baseless, he needs to show that it's not just possible, but easy for textualists to find no problem with substantial compliance.

And to anticipate a bit more: I have no doubt that textualists would actually find substantial compliance in the extremely unlikely event of a contested case about the Oath. Most self-described textualists turn out to be not crazy when deciding cases, and therefore textualism as practiced differs somewhat from the attacks on both objective and subjective purpose that one sees in the academic writings of textualists. But I'll let Whelan---whom I grew to respect if not agree with when we were both law clerks at the SCOTUS 100 years ago---have his shot at me before I elaborate further.

Posted by Mike Dorf

They Work with Him, but They Work for Us

One of the longstanding unwritten rules in U.S. politics is that "the President can hire whomever he wants," that he has the right to choose "his team." The only exceptions to that rule of which I am aware are for non-policy issues such as being an alcoholic or violating some evolving category of laws or procedures. I have always disagreed with the notion that the Senate's advisory role on administrative appointments should be deferential to the point of ignoring policy concerns. While it is true that the President was elected by the people (or, in some cases, by just enough people to win the Electoral College), the Senate should still look closely at the views of the people whom the President appoints, precisely because those appointees were unknown to voters at the time of the election.

Moreover, under the current norms, policy differences are often simply hidden under a fig leaf of concern about some non-substantive violation. If we are going to have honesty in government, why not start with being honest about why we support or oppose appointees?

Even if we accept the idea that the only legitimate grounds on which to oppose a presidential appointee are procedural, however, the bar is currently set far too low. Earlier this week, the Senate confirmed the appointment of Timothy Geithner to be Treasury Secretary. While I opposed his selection on policy grounds, I suspect that he would have been acceptable to a majority of the Senate if they had voted purely based on his policy views. As we all know, however, Geithner's nomination hit a bit of a snag over some tax issues. In opposing Geithner, the ranking Republican on the Senate Finance Committee, Charles Grassley, issued a statement that read in part:

"The Treasury Secretary is in charge of the IRS, and must set a good example. During yesterday’s confirmation hearing, Mr. Geithner gave answers to committee member questions about his tax compliance problems. The nominee’s answers to the committee and during the vetting process give me pause. The explanations for irregularities have ranged from statements that he should have known, to proclamations that if only his accountants had warned him he would have done the right thing."

I agree with Sen. Grassley's sentiments. Indeed, as the TaxProf blog noted yesterday, Geithner's example has already been used as an excuse for tax non-compliance by Bernard Kerik, whose lawyers are complaining that their client is being "treated differently" than Geithner. The right-wing press and blogosphere have already used the Geithner nomination to stoke popular fears about the tax bogeyman, inflaming sentiments against the very notion of taxation. Therefore, I also opposed Geithner because he is a particularly unfortunate choice from the standpoint of popular perception (based on the very real fact that he violated the law), which is especially important in the area of taxes.

I am not, by the way, moved by the argument first reported on the popular Gawker website yesterday that Geithner's 1998 testimony to a House subcommittee proves that he is either an ignoramus, an amnesiac, or a liar. The testimony in question merely explains the unique income tax rules that apply to IMF employees who are U.S. citizens. As it happens, I was interviewed for an IMF job when I was leaving graduate school years ago. The interviewers went to great lengths to tell me that salaries there are not subject to U.S. income tax, which they rightly viewed as a recruiting inducement. Geithner's problems at the IMF related to payroll taxes, not income taxes. The procedures for paying payroll taxes when an employer does not withhold them are a very different set of issues.

Therefore, the problem with Geithner is that he failed to follow procedures that most people never have to deal with but that he should still have dealt with correctly. Again, the problem is that this type of error is fodder for demagogues. A person who would head the Treasury Department really should be held to account for his tax problems.

A much easier, but equally troubling case, is the nominee to be the second in command at the Defense Department, William Lynn. Lynn is a lobbyist for Raytheon, which means that he cannot serve in the Obama administration under its own new ethics rules. The administration reportedly issued an immediate waiver to those rules for Lynn, forcing him to divest stock and "to be under ethics review for a year," whatever that means. This simply does not pass the smell test.

One argument that we hear in favor of giving Geithner and Lynn a pass is that they are the guys whom Obama wants, and Obama thinks they are the only people who can do what he needs to have done. I even heard one pundit claim that Geithner is the only man in Washington who understands the bank bailout, so it would be foolish to reject him on the basis of some minor tax error. This is nonsense. There are plenty of qualified people who would be willing to serve in any administration. The difference between the president's first and second choices cannot be so great that we should just give the president a pass on any appointment.

The president is, after all, hiring a team to work for the citizens of the country. If we really want to live in a post-partisan world, maybe the place to begin is to have Senators evaluate appointees on the basis of higher standards rather than acting as if the only person whose opinion matters is the president (no matter how popular he may currently be). If we are going to see a change of tone in Washington, maybe one way to begin is to stop acting as if the president's people are above the law.

-- Posted by Neil H. Buchanan

The REAL Lessons of "Soft" Judicial Review

American constitutional scholars who are troubled by the power of our Supreme Court---those who fret over what Alexander Bickel famously called the "countermajoritarian difficulty"---sometimes point to the alternative systems that have been adopted relatively recently by some countries with which we share a common law tradition: in particular, Canada, the U.K., and New Zealand. Using somewhat different mechanisms, in each of these countries, judges have the power to find laws invalid or, what amounts to nearly the same thing, to construe them contrary to their text to find them valid, but legislatures are then empowered to override the judges' decisions. For purposes of simplicity and because it is by now the best established of these "soft" forms of judicial review, here I'll focus primarily on Canada's so-called "Notwithstanding Clause"(Section 33) of the Charter of Rights and Freedoms. It provides:

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Section 33 then goes on to specify that a "notwithstanding" declaration expires after 5 years although it may be re-enacted.

Last week, I attended a talk by Canadian-born Australian law professor (currently on a visiting gig back in Canada) James Allan. Allan is, like many antipodean law professors, a judicial review skeptic, for the standard reason---he thinks it difficult to justify in a democratic society. The theme of his talk was that Americans in the Bickelian mold are mistaken if they think that "soft" judicial review is, in operation, less countermajoritarian than American-style "hard" judicial review. He noted that in the UK, New Zealand and Canada (with the exception of Quebec), legislative override mechanisms simply are not used. In practice, Allan argued, "soft" judicial review is no different from US-style judicial supremacy.

I don't quarrel with Professor Allan's factual account but I think he draws the wrong lesson. He credits an argument made by Jeremy Waldron (and others) that attributes some of the un-useability of override provisions to their wording. Note, Waldron and Allan say, that the Notwithstanding Clause does not empower Canadian parliaments to declare "we think the Supreme Court misinterpreted the charter and hereby substitute our interpretation." Rather, it requires the overriding parliament to declare that it is violating the Charter itself. Likewise, Allan et al say, under the UK Human Rights Act, although a Law Lords declaration of incompatibility (between a statute and the European Convention on Human Rights) does not invalidate the law, Parliament is given the option of removing the incompatibility, rather than of substituting its judgment on what all could agree are difficult and divisive questions. Thus, the argument goes, the provisions authorizing soft judicial review load the dice in favor of the judicial interpretation: it is treated as the "correct" or "real" meaning of the relevant fundamental rights, and parliament is denominated a violator of such rights. This framing, Allan, Waldron and others say, makes the legislative override unuseable.

I am not persuaded. Note that in the U.S. we have roughly the same convention with respect to legislation. If the Supreme Court interprets a statute to mean X, and Congress thinks it should have been interpreted to mean Y, then when Congress re-writes and re-enacts the statute to say Y, the Courts treat this as a change in the meaning of the statute, rather than as a substitution of one reading for another. But no one is fooled by this convention and it does not stop members of Congress from saying on the floor, to the press, or even in a "findings" section of the amending statute itself, words to the following effect: "We think the Supreme Court got it wrong when it held the original statute meant X, and we are correcting that error." Likewise, there is nothing in Canadian or UK law that would prevent MPs from making analogous statements about judicial interpretations of the Charter or the ECHR.

When I raised the foregoing objection in a question to Professor Allan last week, he said that one hears such talk in the UK but not in Canada. That, to me, suggests that the difference is mostly cultural: Canucks (except when playing hockey) are simply nicer and less argumentative than Brits (although one could, I suppose, argue that the stronger wording of the Canadian Notwithstanding Clause plays some role.)

More broadly, I think the experience under regimes of soft judicial review serves to answer the countermajoritarian difficulty even in regimes of hard judicial review. That experience shows that given the formal option of legislative override, citizens and subjects in countries quite similar to our own---including two (the UK and New Zealand) with no entrenched written Constitution---accept countermajoritarian judicial review as legitimate. This is pretty clear majoritarian support for the countermajoritarian practice of judicial review.

To be clear, that fact does not undermine the normative case against (hard or soft) judicial review. Allan, Waldron and others can still say that in accepting the legitimacy of de facto judicial supremacy, citizens and subjects of these common law countries are making a mistake; they are accepting a less than fully democratic regime. This would be a little like criticizing subjects of a benevolent (or even not-so-benevolent) dictator for accepting the dictator's edicts as legitimate. That's a perfectly sensible move, but note that it is hard to describe it as a move that questions the legitimacy rather than the wisdom of the system being criticized. And for the most part, critics of judicial review have tended to couch their arguments in terms of legitimacy.

Posted by Mike Dorf

Lie to Me

In my latest FindLaw column, I use the botched oath as a vehicle for exploring the differences between the jurisprudential philosophies of President Obama and Chief Justice Roberts. Here I want to expand on a tangential point I make in the column: the purposes oaths serve.

In a trial and some other contexts (like filing a tax form), witnesses and others swear an oath to tell the truth. The oath then subjects the oath-taker to criminal prosecution for lying. However, this is merely the way we have chosen to structure the law. Neither due process nor any other constitutional principle would be offended by a law that criminalized lying in any particular setting, even absent an oath. For example, prosecution for lying to the FBI does not require that the liar have taken an oath to tell the truth in advance.

So why require an oath at trial and in other contexts? Presumably, for at least two reasons: First, to warn and remind the oath-taker of the possibility of prosecution for perjury; and second, to impress upon the oath-taker the seriousness of the occasion, quite apart from any fear of prosecution. Whether the oath actually advances either of these aims is questionable. So too is a third reason that has sometimes been invoked for requiring oaths: that liars and other disreputable people will be unwilling to take the oath. It is hard to imagine that there are a lot of people who would be willing to lie while not under oath but are not willing to lie in an oath. And remember, we can't say that the willingness depends upon the possibility of prosecution, because we could criminalize the lie even without the oath.

The foregoing analysis applies as well to loyalty oaths. The people who, during the McCarthy era and at other times, were too scrupulous to recite a loyalty oath were unlikely to be actual Communist agents working to overthrow the government.

So perhaps the point of the oath is to harness religious obligations to secular ends: There might be some people who would be willing to lie, even at the risk of prosecution, without an oath, but would be unwilling to do so after having sworn to God that they would not. Fear of prosecution is one thing; fear of eternal Damnation is something considerably worse. Here too I'm skeptical of the actual efficacy of oath-taking. Even without the oath, religious people in the three Mosaic faiths are already under the obligation, "Thous shalt not lie." Willingness to violate the scriptural injunction standing alone probably connotes willingness to violate the same injunction coupled with a promise to the Almighty.

Thus, it seems that the principal actual function of an oath, in any context, is simply to solemnify the occasion on which it occurs. It has the added and unfortunate side effect, however, of sometimes weeding out for persecution those people (e.g., Quakers, Jehovah's Witnesses, some pacifists) who do not agree with the oath but are too scrupulous to recite it anyway. Perhaps we'd be better off dispensing with oaths and just training everybody to read microexpressions.

Posted by Mike Dorf

Obama Order to EPA: Make Things Even Harder for Detroit?

The news this morning is that the President has ordered EPA to reconsider a Bush Administration decision on California's request to regulate greenhouse gas emissions from new vehicles under the Clean Air Act. One of the key reasons the Bush Administration gave in rejecting California's 2003 request in March of 2008 was that the authority given California specially in the Clean Air Act was intended to cope with certain unique circumstances in that State, in particular the prevalence of air inversions and of auto-dependent land uses. There were other, more bogus reasons given for rejecting the waiver, too, but let's stick to the facially plausible ones here. EPA linked its rejection to its interpretation of the statute's language and history and found that it gave California no room to request waivers with respect to "pollutants" like GHGs.

The legislative history indicates that Congress' intent . . . was to allow California to adopt new motor vehicle standards because of compelling and extraordinary conditions in California that were causally related to local or regional air pollution levels in California.

I express no opinion here on the correctness of this interpretation. But consider one tricky legal question presented to an Obama EPA here -- and in other actions currently in the pipeline at EPA (as well as other agencies): To what extent can an incoming administration turn in exactly the other direction on statutory interpretations based on a new administration's policies. This is certainly an old and common question in administrative law. But it seems to be of new urgency today, given how many truly important policies the last administration linked directly to the agencies' legal standing in court with respect to their enabling statutes. Deference comes in many flavors today and I'm beginning to wonder what deference ought to go to an agency that changes its most basic statutory interpretations every few years.

Posted by Jamie Colburn

Due Process for Rod Blagojevich?

In a typically colorful press conference (transcript here), soon-to-be-ex-Governor of Illinois Rod Blgagojevich complained that the rules under which the Illinois Senate will conduct his impeachment trial deny "fundamental due process," amounting to "a trampling of the Constitution." From the context of his remarks, it's clear he means the federal Constitution rather than (or at least in addition to) the Illinois Constitution. (He objects to the "violation of the freedoms we enjoy as Americans.")

Blagojevich singled out two impeachment rules as allegedly unfair:

a) Blagojevich: "Rule 8B essentially says that the charges that the House bring in a report -- that was not cross-examined, not challenged, not confronted -- that those very charges cannot be challenged, cannot be contested, cannot be refuted. In short, you can have all the witnesses you want; it doesn't matter because that document alone is going to be accepted as fact."

He's right that 8B forbids any objection to the admission of the House report, but it is a rule of evidence. Rule 8 as a whole is titled "Rules of evidence governing the trial." In light of the rest of Rule 8, Rule 8B is best read as forbidding a collateral attack designed to exclude the House report but not in any way as forbidding the introduction of further evidence refuting the House report. Indeed, Rule 8B does not say that the House report must be accepted by the Senators as true or what weight the Senators must attach to it, if any--only that it must be admitted into evidence.

b) Blagojevich: "Rule 15F, which by all intents and purposes prevents me from calling in witnesses like presidential Chief of Staff Rahm Emanuel, from top presidential staffer Valerie Jarrett, from Congressman Jesse Jackson Jr. and a whole series of other witnesses that I would eagerly call to testify under oath to show that I have done nothing inappropriate with regard to the decision to pick a United States senator."

This objection has more to it. Although the rules generally allow Blagojevich to call his own witnesses, Rule 15F does impose a limit. It bars the calling of witnesses whose impeachment trial testimony would, in the judgment of the U.S. Attorney, compromise the criminal investigation and prosecution of Blagojevich. That is a potentially very serious limit on Blagojevich's ability to defend himself.

It's not entirely clear why the testimony of a potential witness at the impeachment trial would compromise his or her subsequent testimony at a criminal trial. A federal appeals court reversed the conviction of Oliver North but only because it found that the trial judge had taken inadequate measures to ensure that none of the evidence against North was the indirect product of North's own testimony before Congress, for which he had received use and derivative use immunity. But if the Illinois Senate does not plan to immunize witnesses called before the impeachment trial, then their testimony before the Illinois Senate would not taint subsequent testimony by them or others at Blagojevich's federal criminal trial. The key, as I understand the issue, is that Rule 15F aims to avoid compromising the federal investigation. By telling what they know now, witnesses at the Senate impeachment trial could reveal to the public--and thus to targets of the investigation including Blagojevich and potentially others--aspects of the prosecution case and strategy that the prosecution would like to keep secret for now. I suppose that's a legitimate worry, but it seems that so much has already been revealed that it's hard to see much further damage along this dimension. Accordingly, U.S. Attorney Patrick Fitzgerald probably should not have much occasion to invoke Rule 15F.

Suppose, however, that he does. Suppose, that is, that Fitzgerald does block witnesses that Blagojevich deems crucial. Would that deny Blagojevich's federal due process rights? There are at least two reasons to think not.

First, in order for the federal guarantee of due process to kick in, the claimant must have a protected "property interest." In many contexts, a government job counts as a property interest requiring fair procedures for termination. However, Supreme Court cases from 1900 and 1944 (here and here) hold that an elected office is not a property interest. Those decisions are still good law: as recently as 2005, the U.S. Court of Appeals for the Second Circuit said so (here), even while wondering whether the Supreme Court itself might want to reconsider this principle in light of subsequent legal developments. For what it's worth, I think it highly unlikely that the current Supreme Court would reconsider the principle that elected office does not constitute a property interest. Among other things, doing so would likely strike a majority of the Court as intruding into matters reserved for the states. But the larger point is that as the law now stands, Blagojevich is not even entitled to federal due process in his impeachment trial.

Second, even if we were to assume that there were a federally protected property interest entitling Blagojevich to due process in his impeachment trial, due process in this context would not mean the full procedures of a criminal trial. Under the leading precedent (here), the procedures required depend on a balancing of the interests at stake. Blagojevich's interest in remaining Governor is not as strong as his interest in avoiding prison and, conversely, the interest of Illinois in having a functional executive branch is very strong. Thus, the Illinois procedures, even if imperfect, probably would pass muster under the balancing test.

Posted by Mike Dorf

Obama's Best and Brightest Law Professors

David Halberstam's The Best and the Brightest chronicled how a Kennedy Administration filled with great intellects could nonetheless blunder its way into the quagmire of Vietnam. With various pundits now reviving the term "best and brightest" for the Obama Administration (some without realizing this is no compliment), here I want to reflect on a potentially important difference between JFK's stable of intellectuals and BHO's, and to think through what exactly is wrong with selecting the best and the brightest. One point I would highlight is the prevalence of lawyers and law professors in today's Administration.

To begin, JFK's national security team--Halberstam's focus--were not lawyers: Walt Rostow was an economist; McGeorge Bundy was a government professor; and Robert McNamara was a business school professor (and Ford executive). It's true, of course, that some of Obama's "brightest" are not lawyers: Geithner, Summers, and Chu, for example. Others are lawyers but not law professors: most prominently Hillary Clinton. But the number of law professors is arresting, beginning with Obama himself, who, though not a legal scholar, is more steeped in legal academia than any prior President. Likewise, VP Biden has taught as an adjunct at the University of Delaware for many years and in his role on the Senate Judiciary Committee dealt with the sorts of issues that excite legal academics.

Then there's Elana Kagan as Solicitor General, assisted by Neal Katyal; there's Dawn Johnsen heading OLC, assisted by Marty Lederman and David Barron (either of whom would also have been plausible in the top spot); there's Cass Sunstein heading OIRA; and while Greg Craig as White House Counsel is a Washington insider, he is assisted by law professors Dan Meltzer, Trevor Morrison, and Alison Nathan (along with other merely elite lawyers). No doubt I'm overlooking additional law profs.

For the most part, these folks will not have national security portfolios, at least as conventionally defined. (Note that Janet Napolitano at Homeland Security is a serious lawyer, though.) Thus, direct comparisons to JFK's best and brightest are inapt. However, seeing Halberstam's book in broader perspective, one could draw the lesson that people with "book smarts" are not necessarily going to make wise policy choices. This idea dovetails nicely with a point Malcolm Gladwell makes in Outliers: People who are extraordinarily successful typically have high-level smarts, but above a certain threshold of smarts, additional intelligence per se is not a very good predictor of success. Generalizing from Halberstam and Gladwell, we might think that instead of seeking the best and the brightest, a President should look for "good enough and bright enough" people who have been proven to have excellent judgment. If so, then hiring people simply because they were stars in law school and became top law professors is a mistake.

But even if we credit the Halberstam-as-interpreted-via-Gladwell hypothesis, there are nonetheless two reasons to think that Obama's picks actually have the right qualities. First, I would argue that law professors are typically a little different from other academics in that they tend to be lawyers--that is, people with real-world experience. This point only goes so far, however: JFK's best and brightest had real-world experience too. Nonetheless, if we abstract a bit, the point I would make is that law professors are, on average, less head-in-the-clouds than university faculty in other disciplines.

Still, I acknowledge that, judged by the standards of ordinary humanity or even by the standards of practicing lawyers, law professors tend to be theoretically rather than practically oriented. But this brings me to my second point: The particular law professors Obama has chosen for his Administration are generally practical people with good people skills and judgment. They are, nearly to a one, "principled pragmatists" like Obama himself. That hardly guarantees success, but it does suggest that we need not worry too much about a repetition of the first "best and brightest" disaster.

Posted by Mike Dorf

Article III or UCMJ?

President Obama's Executive Order closing the Gitmo prison within a year contains a number of important provisions, but none more suggestive than the following two:

Section 2 . . . (f) Some individuals currently detained at Guantánamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.

Section 4 . . . (c) . . . (3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.

Taken together, these provisions leave open three possibilities for trial:
(1) Prosecution before an ordinary (federal Article III) civilian court (or a special court presided over by an Article III judge but following the normal procedures of civilian federal courts in hearing ordinary criminal cases);
(2) Prosecution before a court martial under the rules of the Uniform Code of Military Justice (UCMJ);
or
(3) Prosecution before a special military commission that nonetheless affords the same core protections as a court martial under the UCMJ.

As a practical matter, however, I believe that political pressure will lead the Obama Administration to conduct prosecutions, if any, before Article III courts alone. There is no real difference between options (2) and (3). But for that very reason, the Administration will almost certainly want to avoid the stigma of using a "special" military commission. That would look too much like the Bush approach.

Meanwhile, for those in the know, a court martial under the UCMJ would be acceptable--and legal under common article 3 of the Geneva Conventions--but the problem is that the difference between a court martial and a military commission is not well understood by the international public at large. Each would be portrayed as something falling short of an ordinary civilian court, and it is important to remember that a basic goal of ordering the closing of Gitmo is to win a symbolic victory in the worldwide court of public opinion. Indeed, the Executive Order essentially says as much by invoking the "foreign policy interests" to be served by closing the Gitmo detention facility.

In principle, of course, the Administration could build and maintain a humane prison at Gitmo, with all the procedural due process imaginable. But the President is aware that ANY prison at Gitmo is now irrevocably tainted by the Bush policies. So too, I think, will be ANY military procedure for determining guilt for war crimes. Thus, while the Executive Order leaves open the possibility of trials outside of Article III fora, it would be very surprising if the Obama Administration were actually to conduct any.

Posted by Mike Dorf

Pessimism

Notwithstanding the profoundly optimistic frame of mind in which I find myself during this historic week, there are a few reasons to be pessimistic -- or at least worried -- about the direction that the country might take under the Obama administration. To this point, of course, most of what we have to go on are the new president's decisions about whom to appointment to his cabinet, along with a few symbolic choices and some (very good) moves on his first day in office. Based on what we know so far, there is unfortunately reason to worry about how things might play out. While I am optimistic that President Obama's efforts to be inclusive will often bear fruit, I feel at least a tinge of pessimism that he will allow himself to be dragged into positions that will do neither the country nor Obama himself any good.

The fundamental worry to me has been best articulated by Maureen Dowd, who asked (in a column on Sunday that was otherwise a brilliant analysis of George W. Bush's many fatal flaws) whether "Obama [is] neurotically reluctant to make enemies, and overly concerned with winning over those who have smacked him, from Hillary and Bill to conservative columnists." This was, in fact, precisely the problem with Bill Clinton's presidency, with his obvious need to win people over and his willingness not only to sell out his own party on policy but to publicly trash his colleagues as "old Democrats" who were out of touch with the real America. (Even the usual description of Clinton's strategy as "triangulation" fails to capture his real strategy, since he usually gave up almost all of the territory to his conservative critics rather than finding some kind of new dimension within which to find "middle" ground.)

This is why I was (and am) so worried (see here, here, and here) about the Rick Warren controversy, since it sent the very worrying signal that Obama might be another Bill Clinton, who talked left and governed right in a (futile) attempt to get the Right to like him. To this point, as I describe below, there is enough evidence that Obama is a capitulator to keep me awake at night. It is great, of course, to have a president who does not view it as evidence of righteousness that people disagree with him. There is a long distance between those two poles, however.

Cabinet-level appontments, to be sure, are their own species of symbolism. While cabinet secretaries have a great deal of independent power, it is at least plausible that each of these people will do what Obama wants and not what they would prefer to do on their own. Still, these people are not automatons, and they will ultimately make decisions that matter a lot more than, say, the invocation during Tuesday's inauguration festivities. With that in mind, it is worth thinking about the major cabinet appointments of the new administration, looking for evidence of any Obaman tendency toward preemptive capitulation.

Foreign Policy: One of the biggest surprises of the transition, at least for me, was Obama's choice of Hillary Clinton to be the Secretary of State. Clinton steadfastly refused during the presidential primaries last year to repudiate her vote to authorize the invasion of Iraq, making her an odd choice for a president who differed so profoundly on that issue. Honestly, though, I was never especially upset by Obama's choice of Clinton for the same reason that I did not support Clinton for president: I do not believe that she has any core beliefs. Saturday Night Live captured it best when they had their Hillary Clinton impersonator say, in response to a question about whether revelations of the cooked intelligence changed her mind about her vote: "If I had known then that I could vote against the Iraq war and still be a viable presidential candidate, I would have voted differently."

In short, I am worried more about Clinton simply being unpredictably opportunistic than being too much of a hawk. Obama's decision to put her in such an important position tells me that he is willing to be a political player, which should not be a surprise to anyone. While I do not understand why everyone was so sure that Clinton is "eminently qualified" for the position, she was certainly not clearly unqualified. While this pick gives us some reason to worry, it is not high on my list.

Justice: One of the biggest messes in Washington has to be the Justice Department. Choosing Eric Holder was a very good decision on many grounds, even though I believe that his role in the Marc Rich pardon under Bill Clinton was pretty unsavory. Holder actually has experience in positions that make him a very good choice to bring professionalism back to the upper echelons of the department. Today's announcement that Neal Katyal will be a deputy solicitor general is also good news. At Justice, though, the biggest improvement will simply be that people like Monica Goodling are not filling the slots that are out of the spotlight.

The Economy: I recently described my skepticism about the centrism (or, more accurately, the neoliberalism) of the Obama economics team. These doubts were confirmed last week after the mini-scandal broke about Secretary of the Treasury-designate Timothy Geithner's unpaid taxes, when the Washington Post quoted a "senior Senate Republican aide" as saying that Geithner is "about as conservative a nominee as you could hope for in that position, so people are hesitant to blow the guy up." Indeed.

The biggest concern is that Obama's economists will be too timid, both in deciding upon the size and composition of the current and (probably) subsequent stimulus packages and in fixing the botched bailout of the banks. Deep down, the Rubin boys really are friends of the big-institution financiers, believing both ex ante and ex post in the fundamental wisdom of the deregulatory agenda initiated under Bill Clinton and continued under George Bush. I do suspect that they are pragmatic enough to be much better at handling the crisis than Bush's economists were or McCain's economists would have been, but that is not saying a lot. If Summers et al. blow the opportunity to end the recession before it becomes a depression, moreover, the failure will be laid at the feet of liberals, even though there are no liberals in charge of economic policy.

Those are a lot of doubts, to be sure. Even so, for now optimism is winning over pessimism in the battle for my heart and mind. Obama's bad moves thus far need not portend Clintonian capitulation to the Right, for we can hope that Obama is much less psychologically needy than Clinton when it comes to winning over his opponents. As I have argued before, the most important thing for Obama's supporters to do is to let him know that their support is not unconditional. No one should expect the moon and stars from their political leaders, but when Obama pulls away, his supporters need to make it clear that they are not just along for the ride.

-- Posted by Neil H. Buchanan

Obama Retakes Oath

Out of an abundance of caution, CJ Roberts and President Obama had a do-over today in the White House Map Room. Although media were excluded, DoL managed to get the following exclusive footage:


Posted by Mike Dorf

Good Faith and the Fourth Amendment

In my FindLaw column appearing today, I discuss the recent Supreme Court decision in Herring v. United States, which held that when a police officer carries out an arrest without probable cause and without a warrant, on the basis of an erroneous entry on a sheriff's office computer listing outstanding arrest warrants, the evidence that results from the search and seizure will be admissible at the trial of the person erroneously searched. In my column, I discuss the "good faith" doctrine which, up until now, has provided an exception to the Fourth Amendment "exclusionary rule" (which suppresses illegally obtained evidence) for errors that resulted from objectively reasonable reliance by a police officer on a non-law-enforcement actor who made the mistake in question, such as a magistrate, a clerk of court, or a legislature. In this case, for the first time, a law enforcement agency can be the source for the error on which the police officer relies without compromising the admissibility of the resulting evidence. My column focuses on the likely incentive effects of this extension.

In this post, however, I want to focus on what I view as the dishonesty of the Supreme Court's approach to this and other issues. The Court is plainly engaged in a process of gutting the Fourth Amendment exclusionary rule. Indeed, the Court acknowledges that applying the rule in the case before it would have some deterrent effect but that the deterrent is not worth the cost here. Tellingly, the majority (a 5-4 majority) indicates that the exclusionary rule has always been a "last resort," thus ignoring the fact that from its inception, the exclusionary rule was meant to apply to Fourth Amendment violations with a limited set of exceptions. Rather than say, however, that there is -- so to speak -- a new sheriff in town who wishes to do away with the exclusionary rule, Chief Justice Roberts maintains that he is following existing precedents rather than staking out a new approach. The pretense seems calculated, much in the way that Chief Justice Roberts's praise of stare decisis at his confirmation hearings seemed calculated, to reassure the audience that nothing has changed.

Why bother, though? No one who cares about the exclusionary rule is fooled (though many, I suspect, were fooled by the apparently moderate rhetoric during the Chief Justice's confirmation tesitmony; our current President, of course, was not fooled). One possibility is that the Chief Justice believes his own story. He views the Constitution differently from those on the left and in the center, but he is not going to overrule long-standing case law because he has too much respect for the institution of the Court to do that. Instead, he will simply "develop" the law in new directions when it comes to cases that have not been decided before. Open questions will be closed in a manner that might seem radically at odds with the logic of yesterday, but the Supreme Court never explicitly held to the contrary.

The same could be said for the Court's current approach to abortion. Though the Court had, not very long ago, struck down a so-called "partial-birth abortion" ban that did not provide a "health of the mother" exception, the "new" Supreme Court upheld a virtually identical statute, making arguments (including the paternalistic idea that women who seek an abortion don't realize what they are doing) that are utterly inconsistent with the arguments that animated prior cases. Nonetheless, the Court did draw a window-dressing sort of distinction between the two statutes, such that it would be (sort of) inaccurate to say that the later partial-birth abortion case had overruled the earlier one. It is possible, again, that the new Justices on the Court (Roberts and Alito) believe they are respecting prior precedents by drawing distinctions, but the respect is hollow and unconvincing, much in the way that when someone says "with all due respect," he clearly means to say that almost no respect is actually due.

Based on these observations, I would tentatively describe Chief Justice Roberts's jurisprudence as "passive-aggressive." That is, the language overtly respects the boundaries drawn by existing law but covertly does not. As an "aggressive-aggressive" Justice, Scalia has shown impatience and annoyance at the Roberts approach to dismantling precedents. But passive-aggression can sometimes be more effective and more lethal than Justice Scalia's more candid alternative. For those of us who find the Roberts agenda frightening and dispiriting, there is little comfort to be had in Roberts's plausible deniability.

Posted by Sherry Colb

Great Speech, Botched Oath

Today's inaugural will no doubt be remembered for President Obama's stirring speech. To say it was marred by the clumsy oath would be far too strong, but it is an interesting footnote, and most but not all of the blame rests with the Chief Justice.

Here's the oath as it appears in the Constitution:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Not exactly a tongue twister. And yet . . .




1) Roberts begins: "Are you prepared to take the oath, Senator?"

That's a mistake. Obama was already President at this point. The oath is a prerequisite to the new President's "Execution of his Office," per Article II, Section 1, but Obama became President at noon sharp (while the musicians were playing), per the 20th Amendment, Section 1. But we can excuse the Chief Justice for not consulting his wristwatch.

2) "I Barack Hussein Obama," Roberts begins, at which point Obama follows him, but Roberts is continuing, "do solemnly swear," requiring Obama to start again. Let's say they share the blame for this one, for having failed to come up with a game plan during the rehearsal dinner.

3) Roberts: "that I will execute the office of President to the United States faithfully."

Ouch! First of all, in the Constitution, the "faithfully" immediately precedes "execute."
And President to the United States?!

4) Then Obama is either surprised at what Roberts had just said because that's not how Obama practiced it, or he can't remember everything Roberts has said, so he says "that I will execute" and stops, waiting for help from Roberts.

5) Whereupon Roberts stumbles again: "The off . . . faithfully the Pres . . . the office of President of the United States." Obama continues "the office of President of the United States faithfully." I.e., he too now puts the "faithfully" in the wrong place.

6) Now they both seem to recover a bit. Roberts correctly says "And will to the best of my ability, " which Obama repeats, although he appears to drop the "the."

7) Both the former Managing Editor of the Harvard Law Review and the former President of the Harvard Law Review, each now heading a branch of the federal government, flawlessly recite "preserve, protect and defend the Constitution of the United States."

8) Roberts then asks whether Obama wants God's help, to which which Obama says yes.

Whereupon, Obama delivers a stemwinder of a speech.

Posted by Mike Dorf

Optimism

With the departure of the Bush administration and the arrival of the Obama administration, today is a day for optimism. More than mere hope but less than certainty and well short of arrogance, optimism hangs in the air today in a way that I have never felt in my life. My comfortable default condition has always rested somewhere between cynicism and pessimism (often, especially in the last eight years, veering into despair), making it all too tempting to use this space today to point out the negatives of the current situation or to dwell on reasons for skepticism or worse. Days for doing so will come soon enough. (In my case, the first of those days will be this Thursday here on Dorf on Law.) But today is a day to smile and to breathe more freely than we have in a long, long time.

The optimism of today's transition of power emanates both from the knowledge that some very bad things will stop happening and the strong reason to believe that some very good things will begin to happen. Optimism flows as well from the knowledge that some of our worst fears have not come to pass. In this short post, I cannot try to offer an exhaustive list of these reasons to feel optimistic, so I will simply offer a few of the most basic reasons why one can feel such a palpable sense of optimism today.

I am optimistic because of the simple fact that we are witnessing a transition of power today. Before the 2004 election, people wondered openly whether the Bush crowd would even surrender power were they to lose at the polls. While there is still legitimate doubt about what happened during that election, the outcome in 2004 did not allow us to test whether or not an overtly corrupt administration would allow itself to be replaced and would turn over the power of the government to those with whom it disagrees. Yet with all of the levers of power firmly within its control, it did not (and perhaps was not able to) steal this election in favor of a friendly successor. It was quite plausible to imagine that this might never happen. It is happening. That is a cause for great optimism about the resilience of our constitutional system of government.

Not only did the worst administration in the nation's history walk away peacefully, but it is being replaced by an administration led by a man who is its opposite in too many ways to list. We are about to have a new president who believes in the importance of careful thought, who has dealt with both the powerful and the powerless with respect and compassion, who enjoys intellectual inquiry, who inspires hope rather than instilling and exploiting fear. The next president of this country is far from perfect, but he has a clear and deep belief in the importance of clear thinking and realistic assessment of the world as we find it. Even for someone like me whose doubts about what might happen next are acute, it is impossible not to feel that this is the kind of leader that we have always needed.

Finally, I am optimistic because of how normal this all feels. The enormity of this breakthrough in our long history of racial strife is both unbelievable yet somehow at the same time quite easy to believe. There was no so-called Bradley effect: Voters really did elect an outsider who does not look like the men in the portrait gallery. After the election was over, there was no buyers' remorse. If anything, more and more people seem to be coming to the realization that this was obviously a good choice. When changes in attitudes are this profound, how can we not feel optimistic that other changes long deferred might also soon be realized?

With optimism comes worry, of course. Optimism that we will see large changes in our approaches to foreign policy, economic policy, the administration of justice, and on and on raise the possibility -- if not the certainty -- that our optimism will soon lead to disappointment. If and when that happens, however, I will still be confident that there will be progress. There is much to be done, but for the first time in my lifetime there is good reason to feel genuinely optimistic. I hope that we all will enjoy this day and that this optimism will stay with us in the days and years ahead.

-- Posted by Neil H. Buchanan

I am NOT going to head the NEA

For roughly my first quarter-century on this planet, I thought I was the only Michael Dorf. Since then, I have met a surprisingly large number of other Michaels Dorf, and that's not counting Michael Dorff, who, as an undergraduate, lived in the same house (glorified dorm) in which I was then a tutor (glorified RA), and who, soon after I left the faculty at Rutgers-Camden Law School, joined that faculty himself, only then to head west. There is the music emprassario Michael Dorf. There is also the Mossad agent Michael Dorf who was part of the team sent to conduct assassinations in response to the killing of Israeli athletes at the 1972 Munich Olympics (portrayed in the film Munich). And then there is the Chicago-based arts lawyer, rumored to be on top of the short list to head the National Endowment for the Arts. He and I corresponded briefly a few years ago about a First Amendment issue and almost ended up co-authoring a paper, but we couldn't agree about whose name should be listed first.

Posted by Mike Dorf (not to be confused with Australian Michael Dorph)

The Relevance of MLK

To commemorate the official celebration of the anniversary of the birth of Dr. Martin Luther King, Jr., I thought I'd parse his "I have a dream" speech for some contemporary lessons.

1) King believed in the living Constitution:

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the "unalienable Rights" of "Life, Liberty and the pursuit of Happiness." It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked "insufficient funds."

2) King was a Keynesian:

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.

Yes, I know that King was using a metaphor. Justice, we might say, is not a limited commodity. But then, the whole point of Keynesian economics is that the same is true of economic activity. That's how the metaphor works. If someone says that the government can't afford some program because the economy is too sluggish to provide the requisite tax revenues, the Keynesian refuses to believe the bank is empty, because the government can always run a deficit that will then lead to a correction.

3) A lesson for Palestinians and Israelis:

there is something that I must say to my people, who stand on the warm threshold which leads into the palace of justice: In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force.

King was much influenced by Gandhi, whose campaign of non-violent protest led to the creation of the Indian state at nearly exactly the same time that the same colonial master was relinquishing control over the territory that would become Israel and Palestine. Non-violence is not always efficacious, and Gandhi himself was notoriously naive in suggesting it might even work against Nazis. But there is no reason to think that a non-violent campaign against statelessness by Palestinians (such as this one) would fall on deaf Israeli ears, especially were it to become the dominant form of protest.

4) King was able to use clearly religious rhetoric (he was a minister after all) in a way that brought people together regardless of their particular sects or beliefs and that was unlikely to alienate non-believers:

No, no, we are not satisfied, and we will not be satisfied until "justice rolls down like waters, and righteousness like a mighty stream."
...
I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; "and the glory of the Lord shall be revealed and all flesh shall see it together.
...

And this will be the day -- this will be the day when all of God's children will be able to sing with new meaning:

My country 'tis of thee, sweet land of liberty, of thee I sing.

Land where my fathers died, land of the Pilgrim's pride,

From every mountainside, let freedom ring!

Amen.

Posted by Mike Dorf

Gaza and Proportionality

Israel is not a party to Protocol I to the 1949 Geneva Conventions, governing the protection of victims of international armed conflicts. Nor, for that matter, is Hamas. The PLO, even before it was given formal authority as the Palestinian authority, committed to abide by Protocol I and the other Geneva Conventions, although for many years thereafter plainly violated these provisions by deliberately attacking civilians. As the successor government to Fatah in Gaza, it could be argued that Hamas is bound by the previous accession of the PLO, but since Hamas has rejected other Fatah agreements, it is not clear what the point of such an argument would be.

Although Protocol I is not treaty law binding on either Hamas or Israel, the principles it expresses are nonetheless sufficiently widely accepted that they could be considered norms of customary international law or jus cogens, that is, binding quite apart from any treaty obligation. And even if not, they are, in their content, admirable. Thus, in the court of public opinion, it is worth thinking about whether Hamas and Israel have abided by them.

For Hamas the answer is easy: Not even remotely. Deliberately targeting civilians, as Hamas missiles do---to the extent that they can be said to "target" anyone, given their unpredictability---violates humanitarian law. (Article 51(4) forbids "indiscriminate attacks.") So too does the Hamas practice of taking refuge behind civilian human shields. Israel does not target civilians, although Israel has killed a great many civilians as a "collateral" consequence of attacks on Hamas fighters in the current conflict. Although Protocol I does not forbid military operations that result in such collateral consequences, it obligates state parties to minimize such casualties. In particular, it contains a proportionality norm that forbids attacks "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."

Here I want to make some observations about the proportionality norm:

1) Talking heads and others commonly talk as though humanitarian law requires that the overall military operation must be proportionate to the provocation. However, that is not true of international humanitarian law. If the use of force is justified in national self-defense (or authorized by the UN Security Council), then a nation may wage war against the aggressor nation. Here, Israel contends that Gaza (treated for these purposes as a nation governed by Hamas) has attacked Israel via rocket fire. That is a casus belli, and once war is justified, Israel has the legal right to attack the Hamas military, including its infrastructure.

2) Now, international law does appear to contain a different proportionality norm of roughly the sort that the talking heads have in mind: As the International Court of Justice said in adjudicating Nicaragua's complaint against the U.S. during the 1980s (which the U.S., while not showing up to defend itself, nonetheless tried to justify as collective defense in response to Nicaraguan incursions into Costa Rica, El Salvador and Honduras), armed self-defense or collective defense must be both necessary and proportionate. The ICJ judgment in that case did not reach the question of whether sponsoring the contras and mining Nicaragua's ports was disproportionate because it found no valid claim of collective defense, as no country had asked for American help in defending against Nicaragua. But the language there and in international law treatises does strongly indicate that self-defense justifying war does not entail unlimited war aims. As my colleague Jens Ohlin (co-author of Defending Humanity) explains (in an email to me): "the UK was justified in expelling Argentina from the Falklands, but invading the mainland and toppling its government would have been disproportionate."

3) Viewed in this light, Israel's principal war aim appears to be legitimate: to destroy or degrade the ability of Hamas to launch rockets into Israel. The matter is not entirely free from doubt, however, because Israel has not been entirely clear on its war aims. But the point I want to emphasize here is that the question of whether Israel's war aims are disproportionate to the casus belli is very different from the question of whether the collateral civilian casualties are disproportionate to the achievement of Israel's military objectives in attacking Hamas fighters. Or to put the point somewhat more tendentiously: There is no legal requirement that Israel's use of force be proportionate to Hamas's use of force.

4) If we think about these issues from the standpoint of morality, rather than international law per se, we might think that whether civilian casualties are proportionate depends ultimately on the value of the military objective. I have real doubts about the likely impact of the current operations by Israel. It seems to me that they will further radicalize Palestinians---not just in Gaza but also on the West Bank---and thus render less likely any lasting peace either with Fatah or with the less ideologically fanatical members of Hamas. And if the whole operation will, in the long run, decrease rather than enhance Israel's security, then it is hard to see how any civilian casualties are proportionate to the operation. However, that is not the legally relevant measure of proportionality. The legal norm of proportionality under international humanitarian law focuses more narrowly on the relation between civilian casualties and immediate military objectives. Killing Hamas fighters and commanders is a legitimate objective in a war that appears to have legitimate (if not necessarily wise) aims overall, and so the real open question is whether the suffering incidentally inflicted on the civilian population is proportionate to the achievement of that objective.

5) I honestly don't know the answer to that question. It is notoriously difficult to determine what counts as proportionate under humanitarian law, and some academics and judges think this renders the proportionality norm useless. To the extent that we can identify factors, the ratio of military to civilian casualties is certainly a relevant consideration, but other factors also come into play, including whether the enemy bears responsibility for mixing its forces among civilians. To be clear, the fact that Hamas uses human shields does not absolve Israel of the responsibility to minimize civilian casualties, but it may bear on what counts as a sufficient effort at minimization, and thus on what counts as proportionality.

6) Mostly unrelatedly, I have heard some defenders of the current Israeli operation point to the fact that Hamas was elected, and receives support from a substantial portion of the civilian population of Gaza. Thus, it is said, civilians in Gaza are reaping what they sowed. Whether this fact is morally relevant, it is certainly legally irrelevant. If the rule were otherwise, civilians in democracies could not count on the protections of humanitarian law. A civilian remains a civilian even if he is loyal to and supports his government, however odious that government's policies may be. Of course, a civilian who takes up arms but not a uniform ceases to be a civilian, and in so doing violates the law of war, but that is a different point entirely.

Posted by Mike Dorf

Helping the Non-Rich, by Accident

-- Posted by Neil H. Buchanan

One of the most politically sacrosanct benefits available to taxpayers is the deduction for home mortgage interest. Along with the deduction for state and local taxes, this benefit expresses a longstanding and bipartisan policy preference to encourage home ownership in this country. Whether the net result of these tax benefits is actually to increase home ownership is a separate question, but there is no doubt that politicians view this benefit as untouchable. In fact, when in 2005 President Bush created a commission to make recommendations for fundamental reform of the federal tax system, he made abundantly clear that any recommendations must include tax incentives to encourage home ownership.  (The panel did as it was told, but their entire report was ultimately ignored by lawmakers, for unrelated reasons.) There seems to be nearly unanimous political support for the idea that the tax code should make us a nation of homeowners.

Who is really helped by these pro-homeowner tax benefits? Last week, at the annual meetings of the Association of American Law Schools, Professor Dorothy A. Brown of Emory Law School offered a fascinating discussion of the effects of these federal tax benefits on low-income and minority homeowners. She showed, among other things, that a surprisingly large number of such homeowners receive no actual benefit from the deductions for mortgage interest and property taxes, because they do not itemize their deductions. As Dorothy demonstrated, this means that the tax code only benefits some homeowners while leaving those with lower incomes and less expensive houses out in the cold. She thus showed that the system currently provides benefits in a regressive fashion, and she argued that "this cannot stand."

I completely agreed with Dorothy's motivations (as I almost always do), and I found her argument to be thought-provoking. Because of my belief (see here, here, and here) that expanded home ownership should not be a goal of public policy, however, I asked Dorothy two questions during the Q&A. First, I suggested in essence that we should address the inequality that she had identified by "leveling down" rather than "leveling up." That is, rather than following her suggestion that we should make sure that the tax benefits for home ownership are available to all homeowners, we should instead take them away from all homeowners. She suggested in response that (beyond the political impossibility) there would be difficult transition costs in such an approach, which is true but (in my opinion) not insurmountable.

My second question, which Dorothy unfortunately was not able to address due to time constraints, was whether the current system is not actually (and completely inadvertently) beneficial to low-income and minority citizens. That is, since home ownership is a very bad way to save money (not only during a dramatic crash like the current crisis but more generally because building home equity is the very definition of undiversified investing), and since low-income people are the least able to cope with the loss of their home equity (since they almost never have any other significant amounts of money saved in any other form), a tax system that leaves out the low-income taxpayers is actually doing them a favor by not encouraging them to own a home.

Therefore, although my first choice would be for the government to completely change course and discourage individual home ownership, the current system -- which seems to disadvantage those with less income and wealth -- might be a better alternative than to adopt a plan to eliminate that supposed disadvantage. This outcome thus works, by sheer luck, as the equivalent of a progressive tax policy to steer the most financially vulnerable away from possibly ruinous risk-taking.

I have to admit that I am somewhat uncomfortable with my own conclusion. There is something unsettling about this "cruel to be kind" approach to social policy. Still, if the choice is to leave things as they are or to change the tax code such that it would encourage more lower-income and minority citizens to buy homes, I think I would choose the former.

Keynes Rides Again

When it comes to jaw-dropping news stories, this week's headliner was surely George W. Bush's final press conference. With his combination of defensiveness, cluelessness, and undiluted arrogance, those 45 minutes were the perfect way for his presidency to end. Still, for my money, the biggest news of the new year so far comes to us from the annual meeting of the American Economic Association. In the NYT's Business section last week, Louis Uchitelle reported that the nation's mainstream economists have suddenly discovered that they do not know what they are doing. More than thirty years of economic theory and research have been exposed as irrelevant (if not dangerous) by the current economic crisis, and the big names in the business are now admitting that they are at a loss.

As Uchitelle put it, "At their last annual meeting, ideas about using public spending as a way to get out of a recession or about government taking a role to enhance a market system were relegated to progressives. The mainstream was skeptical or downright hostile to such suggestions." He could easily have amended that to say: "At their last thirty or more annual meetings . . ." When I was in graduate school in the 80's, it was very clear that any research in the Keynesian tradition -- the school of thought that said that the economy could become stagnant for significant periods of time and could be brought back to health by government spending -- was not welcome. Self-correcting mechanisms were all the rage, with market rationality thought to guarantee that government spending would be either pointless or harmful. Indeed, the only sub-school of thought that adopted the name Keynesian (modified by "New") argued only that business cycles happened for rational reasons in response to unexpected shocks to the economy.

To get some sense of the intellectual environment, consider the following title of an article on fiscal policy: "Is it Sometimes Good to Run Budget Deficits? If so, Should We Admit it (Out Loud)?" I wrote that article just over two years ago for a law review, but even though it was not written for an economics journal, the tone of defensiveness couldn't be clearer. Even to suggest that there were limited situations in which fiscal policy was good for the economy was so alien to the conventional wisdom that it was necessary to soften the blow as much as possible.

Now, we have some of the biggest names in the economics profession saying quite frankly that the seething disrespect for original Keynesian ideas has left the profession at a loss. Alan Auerbach, a prominent economist at Berkeley whose work has included a heavy dose of anti-Keynesian prescriptions for fiscal retrenchment (which I have critiqued here), frankly admitted that "[w]e have spent so many years thinking that discretionary fiscal policy was a bad idea, that we have not figured out the right things to do to cure a recession that is scaring all of us." Uchitelle added (referring to comments by Auerbach): "[A]fter a generation of ignoring public spending in their research, the nation’s mainstream economists lacked the expertise to help guide the process. 'We have not figured out the right course of action,' he said."

That is an astonishing admission, and Auerbach deserves credit for his willingness to speak so frankly on the record. Even more amazing was Martin Feldstein's conversion. Feldstein, a former chief economic advisor to Ronald Reagan, made his academic mark by attacking Keynesian economics, including repeated comments about the "Keynesian fear of saving" and his rather churlish claim that only someone with no children could be a Keynesian economist. (Keynes was childless -- and famously bisexual.) Now, Feldstein says: “While good tax policy can contribute to ending the recession, the heavy lifting will have to be done by increased government spending.”

It would have been much better if we had never had to learn just far off track economists had wandered. As it stands, though, it is very big news that Keynes is back.

-- Posted by Neil H. Buchanan

Closing Gitmo and "Super-Terrorists"

The news that the Obama Administration is planning to close the detention center at the Guantanamo Bay Naval Base is important mostly for its symbolic value. Gitmo and Abu Ghraib have become potent international symbols of American abuses of power and vital recruiting tools for our enemies. As reported in today's NY Times, however, the real question is not whether and when to close Gitmo but what to do with the current detainees. Happily, the Obama team is uninterested in a law authorizing indefinite detention within the U.S., as that would, as they recognize, simply create a "new Guantanamo someplace else." So, what to do with the detainees? Here are the options:

1) Some number will be sent to foreign countries for release or proceedings there. The Obama Administration should have some greater success than the Bush Administration did because it is not tainted by the detentions in the first place, and so receiving countries that would not have wanted to appear to be doing Bush's dirty work may be more willing to take detainees. However, this option is not a panacea. There are some prisoners who cannot be sent to any acceptable country. There are two limits on acceptability: a) We don't want to send people we think quite dangerous to countries that will simply release them or release them after a very short period; and b) We shouldn't send prisoners to countries where they will be tortured (although it's quite possible that anybody who could have been sent to such a country has already been sent there by the Bush administration).

2) Some number of detainees will be released on the ground that there is no longer any good reason to hold them, if there ever was. This procedure has already been used for some detainees--unilaterally by the Administration and as a result of the combatant status review tribunals.

3) The Obama Administration has also indicated that it plans to scrap the military commissions and, for some number of detainees against whom there exists admissible evidence of serious offenses, provide full-dress criminal trials in federal courts. Although I haven't seen discussion of the point, another possibility would be full-dress trials before courts-martial under the Uniform Code of Military Justice, which even Neal Katyal, arguing the Hamdan case, conceded, would be consistent with the Geneva Conventions.

Are the above options sufficient to "place" all of the current Gitmo detainees? I think so, but we might worry about a residual class of suspected "super-terrorists." Here are the necessary characteristics of the suspected super-terrorist that prevent him from falling into any of the above categories:

a) No acceptable country will take him;

b) We have good reason to think that he is very very dangerous and thus it would be a huge risk to release him;

c) Said "good reason" does not take the form of admissible evidence sufficient to prove guilt of a past life-sentence-worthy or capital crime beyond a reasonable doubt, either because

i) the evidence comes from illicit means such as torture but is (somehow) nonetheless reliable;

ii) presentation of the evidence would compromise a vital ongoing counter-terrorism program;

iii) the evidence is strong enough to warrant extreme concern (proof by a preponderance, say) but not so strong as to persuade a jury of guilt beyond a reasonable doubt;

iv) the evidence all relates to future plans of terrible destruction but not to a past crime;

or

v) some combination of i) through iv).

I have very serious doubts about the existence of any such super-terrorists. The most dangerous people who are at large---bin Laden (assuming he is alive) and al-Zawahiri--are both currently under indictment in the U.S. and al-Zawahiri has been sentenced (in absentia) to death in Egypt. There is little reason to doubt that capture and trial of either would result in a conviction and death sentence or life imprisonment. Indeed, there is a much larger question of whether either could get a fair trial than of whether the government could secure a conviction.

So if even bin Laden and al-Zawahiri don't count as falling into the category of people who couldn't be moved out of Gitmo, it's hard to figure out who would. Perhaps if A.Q. Khan were being held at Gitmo, if Pakistan would simply release him, and if all we had on him were a stated intent to proliferate nukes in the future, he would be the one prisoner who falls into this netherworld. But of course, Khan is free in Pakistan (having been pardoned), and there is simply no suggestion that any of the Gitmo detainees are nuclear masterminds with a global network of connections.

Bottom Line: Closing Gitmo will, as President-elect Obama recently said, take a bit of time to deal with the logistics, but there are no insuperable obstacles.

Posted by Mike Dorf