Showing posts from January, 2009

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

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 m

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

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 ma

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 hone

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

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 perju

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 st

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&

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, f

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 bas


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&

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 com

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


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 h

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 sho

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

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, ad

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 he

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 rel

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 b