Tag: law

Barack Obama And The Rule Of Law

Stephen Bainbridge notes that Sen. Obama doesn’t exactly get it when it comes to the rule of law. The basic principle at stake here is this: judges are supposed to say what the law is, not what they think it ought to be. The function of a judge is not to act as a legislator who gets to change social policy based on their own values, but as an adjudicator. Chief Justice Roberts put it best during his confirmation hearings:

“Judges are like umpires. Umpires don’t make the rules; they apply them,” said Roberts. “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

Sen. Obama does not apparently share that view. Here’s what he said about the type of judge he would nominate:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

That’s precisely the wrong way to pick a judge. There is a reason why the statutes of Lady Justice has her wearing a blindfold—the law should not discriminate based on how sympathetic a defendant or a plaintiff is. It is not the position of a judge to decide that someone should be treated differently under the law merely because of the color of their skin or their social disposition. We are nation of laws, not of men. The law applies equally to all, and should not be subjugated to social whim, no matter how well-intentioned.

The problem that Sen. Obama has is that he really should know better. He knows what upholding the rule of law is about. His remarks on the nomination of Chief Justice Roberts show his two-faced approach to the law. He begins by saying this of Chief Justice Roberts:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

This is exactly the way one should evaluate a judge. A judge should be respectful of precedent (if not inflexibly respectful), modest in the course of statutory interpretation, respect procedure, and be impartial. By these criteria, there is no question that Chief Justice Roberts is quite deserving of his seat on the highest bench in the land.

Of course, Sen. Obama didn’t vote for Chief Justice Roberts when his nomination was brought to the floor of the Senate. His reasoning why betrays his fundamental misunderstanding of the rule of law:

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

This could not be more wrong, but to give Sen. Obama a fairer hearing, let us examine his deeper justification for this position:

On those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

On the surface, this seems perfectly reasonable: after all, we don’t want our judges to be heartless, do we? Yet this country is a nation of laws, not of men. What Sen. Obama wants in a judge is a judge that will take his or her own personal feelings as the deciding factor in a case. This is not following the rule of law, this is an example of a judge discarding the law and becoming something other than a neutral arbiter. This inevitably creates an imperial judiciary in which our government ultimately comes down to the personal feelings of 9 individuals rather than democratic process. This sort of attitude is deeply corrosive to the rule of law in this country.

It is not the job of the judiciary to judge based on their feelings. It is an invitation to judicial arrogance. There is a reason why affirmative action is offensive to the Constition—it is because the Constitution was not designed to allow for government to discriminate on the basis of race and is why the Bakke line of cases are wrong as a matter of law. The Constitution does not create a right of privacy in terms of reproductive rights. Roe struck down the laws of 30 states, yet nowhere in Roe is their any clue as to what part of the Constitution these statutes actually offended. Roe is wrong as a matter of law. The Commerce Clause was never designed to allow the federal government to sweepingly regulate anything even “tangentially related” to interstate commerce—unless you forget that the Tenth Amendment says the exact opposite. The Court in Darby Lumber declared the Tenth Amendment to be a mere “truism” that had little force of law. The Court in their more recent Commerce Clause jurisprudence got it right. Cases like Lopez and Morrison got it right as a matter of law—the Commerce Clause does not grant the federal government the power to regulate any activity even if it has even the most tenuous link to interstate commerce. To accept the rule that Sen. Obama would lay down would be to destroy the very notion of federalism, as there’s practically no activity which could then not be regulated by the states.

If Sen. Obama thinks that these conclusions are wrong, then the judges he nominates should come to a legal reason why these conclusions are wrong and these precedents should or should not be followed. The question should not be answered by stating that the judge simply doesn’t like the answer and is personally motivated to do other than what the law commands.

The “critical ingredient” is not what’s in a judge’s heart, but what is in their head. A judge cannot simply say that because a statute may be ambiguous that they can then reject the rule of law and decide the case based on whatever they want. A judge must have the modesty to accept that it is the Congress, not the judiciary, that makes law in this country, and if Congress comes to answer that a judge doesn’t like, then Congress must fix it. A judge that decides that they want to shape the law based around their whim has failed their first duty as a judge and is no longer a neutral arbiter, but has become a party to the litigation. When that happens, equal justice under the law has been denied.

Sen. Obama could not be more wrong on what makes a good judge. He would subjugate the rule of law to the whim of judges. A former professor of Constitutional Law should be far more circumspect. A judge may rely on precedent, tradition, the common law, public policy and a whole host of other considerations in coming to a legal conclusion. However, the second we start letting judges interject their own “hearts” into the issue is the second we abandon the our democratic values in favor of the Imperial Judiciary. Sen. Obama is simply wrong.

Battlestar Galactica And The Law

Over at Concurring Opinions Daniel Solove has a series of audio interviews with the creators of Battlestar Galactica that touch on the legal and ethical question raised by the series. As both a BSG geek and a law geek, this is like encountering Nerdvana.

Galactica has offered some interesting grounds for philosophical debate about issues like the nature of law, terrorism, morality and how they all interact with society. What makes the show so attractive, especially to lawyers, is the depth of the show and how well it does what science-fiction should do—say something profound not about some fictional world, but get people to think about our world. Galactica threw out plenty of SF clichés in favor of a grittier and more realistic approach.

Why I Don’t Like Huckabee, Part XVIII

Yes, Governor, it does matter whether terrorists are held at GTMO or Fort Levenworth, as Sen. Thompson pointed out. If you hold an alien national in the territorial jurisdiction of the United States, they have habeas rights under the Constitution. That’s why we don’t hold them there.

If you think it doesn’t matter, does that mean that you endorse Justice Kennedy’s position on the detainee issue? If so, on what grounds? Are you going to kowtow to a poorly-written and excessively legalistic argument? If so, then how can you argue against Roe v. Wade? Just because Justice Kennedy thinks that GTMO is part of the United States does not make it so, especially when the entire history of the writ of habeas corpus has never been applied to foreign nationals held out of the territorial jurisdiction of a country.

Sorry, governor, you are wrong on the law. That’s why you went to Ouchita Baptist University and not Harvard or NYU.

Huckabee is not prepared to be President.

UPDATE: Martin Andrade asks if I think a law degree should be a prerequisite to being President. Certainly not, although a basic understanding of legal issues certainly is. I don’t begrudge the fact that Mike Huckabee is not a lawyer, but I do take umbrage at the fact that he doesn’t understand such a crucial issue. The next President will more likely than not fill at least one Supreme Court vacancy, and the last thing we need is for someone with no legal experience giving us another Souter—or worse yet another Harriet Miers.

(As a side note, I didn’t know that Mitt Romney has both a JD and an MBA from Harvard, and graduated in the top of his class from both. That’s pretty impressive in my book. I’m starting to see why National Review endorsed Romney…)

Supreme Court Grants Cert In Second Amendment Case

The Supreme Court has decided to grant a writ of certiorari in the case of District of Columbia v. Heller which involves the DC gun ban. For the first time in 60 years, since United States v. Miller, the Supreme Court will visit the issue of whether the Second Amendment protects an individual right to own firearms. As always, The Volokh Conspriracy will be following the case closely, and has some excellent commentary on what all of this means.

As seems to be the case with this Court, it all comes down to Justice Kennedy (now in the spoiler position formerly occupied by Justice O’Connor). Justices Scalia, Thomas, Alito and Chief Justice Roberts are almost certain to advocate for the individual right position. Justices Ginsberg, Breyer, Souter and Stevens are highly likely to come down on the side of the Second Amendment being a collective right for the “militia.”

I think Orin Kerr’s prediction is right: Justice Kennedy will endorse an individual rights view of the Second Amendment but would support a relatively lax standard of review for reviewing restrictions on firearms. What that means is that he’d be likely to support regulations which have only a rational relationship with some state interest rather than requiring strict scrutiny of state gun laws.

A holding that the Second Amendment does confer an individual right to fireamrs, but that any law that has only a rational basis to some state interest would be a Pyrrhic victory for gunowner’s rights groups. It wouldn’t do much to change the status quo, and it would still allow for significant restrictions on gun owners. Instead of settling the issue, it would probably cause more lawsuits as gunowners and groups like the NRA litigate exactly what regulations do and do not infringe upon the Second Amendment.

Thompson The Federalist

Jonathan Adler takes a look at Fred Thompson’s consistent federalism on key issues, including abortion and gay rights.

Ultimately, any “solution” to these issues will involve the basic principles of federalism, the way the Founders intended. (There’s an excellent article in the first issue University of St. Thomas Journal of Law and Public Policy by Prof. Robert Delahunty on this topic. Sadly, it’s not online anywhere.) Even if Roe v. Wade is overturned (which it should be as it’s simply bad law), that won’t end abortion in this country. The reality is that such decisions are designed to be left to the states. What works for South Dakota does not work for California. What works for Massachusetts may not work for Texas. The reason why the Founders created a federal system is to accommodate the reality that this nation is not homogenous in its views and that the powers of the federal government should be limited to enforcing only those things that have a national consensus behind them.

Thompson’s views may be consistent, but it’s an open question whether they’ll help him politically or not. Giuliani has similar views, and while he’s in the lead, many social conservatives are sitting on the fence so far. However, Thompson is showing that his commitment to the principles of federalism are genuine, even on tough issues. This nation needs a leader in the Oval Office who understands that one-size-fits-all federalist solutions don’t work, and so far the Republican front-runners seem to be moving in that direction.

Jim Crow This Isn’t…

Mitch Berg notes Rep. Keith Ellison’s support for an anti-voter ID bill. As usual, there’s the comparisons to requiring a voter ID to “poll taxes” and the like. Such comparisons are an insult to people’s intelligence. So long as voter ID requirements are uniformly enforced there’s absolutely no reason why such rules should not be in place. You have to have an ID to drive, to get on a plane, and to do many other common tasks. There’s no reason to not have photo IDs for voter registration.

Opposition to voter ID laws are less about principle than they are about politics: by keeping voting requirements lax it’s a lot easier to pull electoral shenanigans. Pulling the race card is just a way of polarizing the debate even more. The fact that Rep. Ellison would support such an odious and unsupportable contention demonstrates his lack of personal character and his willingness to take the party line even when he should no better.

St. Thomas Ranked In Top 50 Law Schools

The TaxProf blog notes that using Princeton Review data, the University of St. Thomas in their list of the top 50 law schools in the country. No other Minnesota schools made the top 50 compilation.

It’s interesting to compare the Princeton Review data with the US News list, in which St. Thomas is in the third tier. The compilation combines scores on academic experience,
admissions selectivity, career preparation and having both accessible and interesting professors. These list inevitably come down to whatever subjective criteria that the reviewers feel is most important, but it is interesting to compare the results between the two ranking systems.

Those thinking about law school ultimately should make the choice based not on someone else’s subjective rankings, but their own personal experience. There’s no substitute for visiting a campus, sitting in on a class and experiencing the school’s climate firsthand.

UPDATE: Just to clarify, this isn’t a formal ranking, but a relative weighting of factors performed not by the Princeton Review, but by the TaxProf blog. The Princeton Review did not perform a full ranking based on all their separate criteria. I apologize for not catching my mistake earlier.

Telecom Immunity, Ex Past Facto Laws, And Executive Power

Glenn Reynolds shows why the bill to give retroactive immunity to telecom companies involved who turned over data to the government as part of anti-terrorism investigations is not an ex post facto law. He also has another interesting follow-up post on how the idea of strong Executive powers under the Constitution is nothing new—using an example from the Ninth Circuit, probably the nation’s most liberal that allow President Ford to essentially extend a lapsed statute by Executive Order.

The idea that the “unitary executive” theory is some novel and dangerous departure from Constitutional principles doesn’t have much to it. The principle of separation of powers as always given the Executive Branch wide discretion in managing national affairs under its constitutional scheme of powers—especially in the President’s law enforcement and national security powers.

Those who have taken a course in Constitutional Law know of the famous case of Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952), a case coming out of the Korean War in which President Truman tried to seize a Pennsylvania steel mill that was about to be shut down because of striking workers. Justice Hugo Black gave a wonderfully formalist majority decision holding that the seizure was unconstitutional, but the opinion that ended up being the most crucial to understanding Presidential powers is Justice Jackson’s concurrence. (Here is an edited version of the decision which highlights the essential parts of each opinion.)

Justice Jackson came up with three “categories” of Presidential power, each of which should receive different levels of deference from the courts:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter….

Justice Jackson agreed that the seizure of the steel mills was in that third category—President Truman had asked for such powers before but Congress had specifically denied him the right to make such seizures.

Why does Youngstown Steel matter today? Because it gives us a very clear way of determining when a Presidential action is unconstitutional and when it is not. As Justice Jackson notes, if Congress authorizes the President to do something and the President does it, virtually the only way that could be unconstitutional is if the federal government itself doesn’t have power to take that action under the Constitution. (For instance, if Congress passed a law allowing for the quartering of troops and the President ordered the military to carry that law out, it would still violate the Constitution.).

In the case that Prof. Reynolds mentions above, the Court seems to take the argument that the Executive Order extending the export law is a Youngstown Category I circumstance:

Former section 5(b) of the TWEA delegated to the President broad and extensive powers; “it could not have been otherwise if the President were to have, within constitutional boundaries, the flexibility required to meet problems surrounding a national emergency with the success desired by Congress.” United States v. Yoshida International, Inc., 526 F.2d 560, 573 (Cust. & Pat.App.1975) (footnote omitted). Wary of impairing the flexibility necessary to such a broad delegation, courts have not normally reviewed “the essentially political questions surrounding the declaration or continuance of a national emergency” under former s 5(b). Id. at 579. The statute contained no standards by which to determine whether a national emergency existed or continued; in fact, Congress had delegated to the President the authority to define all of the terms in that subsection of the TWEA including “national emergency,” as long as the definitions were consistent with the purposes of the TWEA. 50 U.S.C. app. s 5(b)(3). In the absence of a compelling reason to address the difficult questions concerning the declaration and duration of a national emergency under former s 5(b), we decline to do so.

Moreover, the EAA apparently was allowed to lapse only because Congress could not resolve questions relating to the antiboycott provisions. See Arab Boycott Hearings on S. 69 and S. 92, Before the Subcommittee on International Finance of the Senate Committee on Banking, Housing and Urban Affairs, 95th Congress, 1st Sess. 1 (Senator Stevenson) (1977). The Spawrs have offered no evidence that Congress intended to dismantle the export controls.

In conclusion, even under the demanding scrutiny the Spawrs argue is appropriate because of the criminal nature of this case, it is unmistakable that Congress intended to permit the President to use the TWEA to employ the same regulatory tools during a national emergency as it had employed under the EAA. We, therefore, conclude that the President had the authority during the nine-month lapse in the EAA to maintain the export regulations.

U.S. v. Spawr Optical Research, 685 F.2d 1076, 1981 (9th Cir. 1982). Because Congress had intended for the President to have these powers, and the lapse of the statute didn’t necessarily change that intent, the President still had the power to enforce a similar policy. Now, the Ninth Circuit didn’t cite Youngstown here, but the basic principle still applies.

All this talk about “new” and “sweeping” executive powers ignores the long-standing legal and historical traditions of executive power under the Constitution. The Presidency is the only part of the US Government that is controlled by a single individual, and the Founders rightly believed that there were some tasks which required a single individual. While the Presidency is a strong office, that office does have constraints that distinguish it from that of the King of England. See The Federalist #69.

I suspect that most of the clamor about how terrible the Bush Presidency is and how much of the Constitution is being “swept under the rug” or “shredded” or whatever is just more political bluster. If in January 20, 2009 Hillary Clinton takes the oath of office and becomes President (perish the thought!), she isn’t going to suddenly change the balance of executive power in this country. (In fact, I’d argue she’d go much farther than Bush has.) All those people who argue that Bush is somehow violating the Constitution never seem to be able to explain what specific part of the Constitution is being violated, and even when they point to one, the supposed violation is rarely real.