Summer Session grading is complete, so its time to play catch up. A short and incomplete list of some things I missed these past few days....
+ The fight over retroactive immunity for the telecomms who participated (we were just following orders!) in the government's unconstitutional warrantless wiretapping program? It's still on. The anti-immunity forces stepped up and delayed the vote until after the 4th of July. And no, I still cannot explain why Obama caved on this. Very sad.
+ While I was away, SCOTUS handed down a huge case - its first, if you can believe it! - on the meaning of the Second Amendment. My basic reaction to their interpretation of the constitution can be seen here. Judicial activism? What? Who? Where?
That said, if the gun control forces are smart, they will realize that SCOTUS just handed them a huge political gift. Thanks to Justice Scalia, there can be no more debate about an outright ban on guns. The opinion makes an outright ban impossible. And although it might seem counterintuitive at first, I think that's a huge gift to groups aiming to control guns, because the next time some pro-gun people say that "liberals want to take your guns," liberals can say "of course we don't. SCOTUS says that's unconstitutional! What we want to do is control the time, manner, and place when they can be used - and that's something even Justice Scalia says is constitutional. Just as the First Amendment's "no law" isn't meant to be interpreted literally, neither is the Second Amendment's "shall not be infringed. Don't ask us. Ask Justice Scalia." Simple. Easy. And Effective.
If you're looking for more serious/scholarly analysis, SCOTUSblog and Balkanization are your go-to's. Sandy Levinson's take is particularly useful here. For something less academic and more practical, read Ezra.
+ Did you know that VP Cheney is a "barnacle on the executive branch?" So says his deranged lawyer, David Addington. It will never cease to amaze me that people who oppose "activist judges" and "originalist" constitutional interpretations supported these buffoons.
+ Obama is "on the cover of the Rolling Stone." Must read here. And pay particular attention to this:
If I haven't gotten combat troops out of Iraq, passed universal health care and created a new energy policy that speaks to our dependence on foreign oil and deals seriously with global warming, then we've missed the boat. Those are three big jobs, so it's going to require a lot of attention and imagination, and it's going to require the American people feeling inspired enough that they're prepared to take on these big challenges.
Imagine if we hadn't wasted 7 years following Cheney's insane "you don't talk to evil; you just stare at them with hostility from across the table and hope they will back down" policy?
He went on to quote from Justice Roberts dissent in the case, rail against "unaccountable judges," and say that the courts are about to be clogged with cases from detainees.
So just to confirm: Is McCain suggesting that he wants to abolish the Supreme Court? Because no matter how yesterday's decision could or should have gone, it was always going to be handed down by "unaccountable judges." SCOTUS was designed so that it would be accountable to no one. That's how the Founders intended it.
So what say you, Senator? Are you ready to propose an amendment eliminating the Court?
And no, it doesn't save him that Chief Justice Roberts used the same language in his dissent yesterday. That only makes it worse. Judges are supposed to be accountable to the constitution, and not to our political processes. That's why the Court exists.
UPDATE: TNR's Josh Patashnik explains why this is a very bad political move for McCain:
So it looks like McCain will, indeed, make this a campaign issue. He could either propose some specific policy--namely, an explicit constitutional suspension of detainees' habeas rights--to campaign on, or, more likely, simply rail against judicial intervention in the abstract. But I'm not so sure this helps McCain much, even if you presume that the public sides with him on the substance. (This is by no means a given, and I tend to think detainee policy is a salient issue for almost no voters anyway.) The main effect of this stance is to make it much easier for Barack Obama to identify McCain with the Bush administration, and to all but deprive McCain of one of his major "maverick" credentials: his break with the Bush administration over Guantánamo. This might well outweigh any benefit McCain would get from appearing to be tougher on terrorism.
Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers...
Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person...
The laws and Constitution are designed to survive, and remain in force, in extraordinary times.
For literally years now, I have been ranting on this blog about how utterly nonsensical the Bush Administration's arguments about non-combatants and Habeas Corpus are. And my argument has been as simple as the words of the constitution itself:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Given that we are living through neither rebellion nor invasion, only the first half of the sentence applies: "The Privilege of the Writ of Habeas Corpus shall not be suspended."
What was at issue here was not how we treat accused terrorists, although that is certainly important. What was at issue was whether we were going to allow ourselves to be ruled by our laws or by our fears. By a 5-4 decision, the Court announced that we would not allow our fears to prevail.
And make no mistake about it, that was what was at stake here. The lead quote was from Kennedy's majority opinion. The following quote is from Scalia's dissent:
America is at war with radical Islamists ... The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.
For reasons that I cannot understand, all of our major media organizations are downplaying this decision. What's bad for the nation is unfortunately good for the blogosphere. And the sphere has been buzzing about this today...
In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows -- when the country faces rebellion or invasion.
The Court stressed that it was not ruling that the detainees are entitled to be released -- that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that "we do not address whether the President has authority to detain" individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.
The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act -- as the Bush Administration had suggested -- to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.
The Court also found serious defects in the process that the Pentagon set up in 2004 to decide which prisoners are to be designated as "enemy combatants" -- the status that leads to their continued confinement. This process is the system of so-called Combatant Status Review Tribunals. The procedures used by CSRTs, the Court said, "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review."
...the Constitution says is that absent either condition, "The Privilege of the Writ of Habeas Corpus shall not be suspended". What, one might ask, is this privilege? Who enjoys it, and where, and in what circumstances? Plainly, if I were detained by the FBI here in Baltimore, I would be covered. Equally plainly, if some Chinese citizen were detained by the Chinese government in Beijing, she would not have, in virtue of that fact, the right to file a petition of habeas corpus in US court.
So here are two questions the Court needs to answer: who has habeas rights? And where do they extend? The court's answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)
As for the second question (where?), the Court looks at its own precedents, which concern such fascinating questions as: to what extent does the US Constitution extend to territories and possessions? It also looks at the British common law from before the Constitution was adopted, to see what the framers of the Constitution and those who adopted it might have understood "the" Privilege of the Writ of Habeas Corpus to involve. Did it extend, say, to people detained by the British in India, which was not then part of the British empire? What about Ireland and Scotland? And so on and so forth. The Court concludes that these cases do not settle the issue one way or another.
The government argues that people detained in Guantanamo do not have habeas rights, because the US government does not have legal sovereignty over Guantanamo. (The lease agreement with Cuba apparently says that Cuba retains "ultimate sovereignty" over Guantanamo.) Petitioners argue that the US nonetheless exercises complete control over Guantanamo, and so habeas rights should extend there. The Court sides with the petitioners, and its language is quite striking:
"The Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."
Or, in short: if we accept the government's argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.
On the basic habeas question, perhaps the most explanatory line of the majority opinion is this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base....
But that doesn't mean that habeas will be available wherever and whenever the military detains alleged combatants.
It will not be available, for instance, in the first few days or weeks of detention at a facility close to a field of battle or in "an active theater of war." The military must be given deference to utilize "reasonable screening and initial detention," even if only "under lawful and proper conditions of confinement and treatment and "for a reasonable period of time."
More broadly, the Court suggests that habeas rights will be circumscribed, perhaps even denied, if and where the government demonstrates that such proceedings would "divert the attention of military personnel from other pressing tasks," or where the government presents "credible" arguments that the proceedings would "compromise[]" a "military mission." Moreover, the Court suggests that habeas rights would be more limited or dubious where adjudicating the petition "would cause friction with the host government."
In all of these cases, Justice Kennedy emphasizes, a "relevant consideration in determining courts' role" is "whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power." Where there are no such adequate alternative protections against arbitrary governmental power, habeas rights will not be denied simply because of the foreign location: "[C]ivilian courts and the Armed Forces," after all, "have functioned along side each other at various points in our history."
Guantanamo detainees accused of being "enemy combatants" have the right to challenge the validity of their detention in a full-fledged U.S. federal court proceeding. The ruling today is the first time in U.S. history that the Court has ruled that detainees held by the U.S. Government in a place where the U.S. does not exercise formal sovereignty (Cuba technically is sovereign over Guantanamo) are nonetheless entitled to the Constitutional guarantee of habeas corpus whenever they are held in a place where the U.S. exercises effective control.
In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees -- mandated by the John-McCain-sponsored Detainee Treatment Act of 2005 -- does not constitute a constitutionally adequate substitute for habeas corpus. To the contrary, the Court found that such procedures -- which have long been criticized as sham hearings due to the fact that defendants cannot have a lawyer present, government evidence is presumptively valid, and defendants are prevented from challenging (and sometimes even knowing about) much of the evidence against them -- "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Those grave deficiencies in the CSRT process mean that "there is considerable risk of error" in the tribunals' conclusions.
The Court's ruling was grounded in its recognition that the guarantee of habeas corpus was so central to the Founding that it was one of the few individual rights included in the Constitution even before the Bill of Rights was enacted. As the Court put it: "the Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom." The Court noted that freedom from arbitrary or baseless imprisonment was one of the core rights established by the 13th Century Magna Carta, and it is the writ of habeas corpus which is the means for enforcing that right. Once habeas corpus is abolished -- as the Military Commissions Act sought to do -- then we return to the pre-Magna Carta days where the Government is free to imprison people with no recourse.
In its decision, the Court emphasized (and revived) some of the most vital principles of our system of Government which have been trampled upon and degraded over the last seven years (emphasis added):
The Framers' inherent distrust of government power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. . . .
Where a person is detained by executive order rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. . . . The habeas court must have sufficient authority to conduct a meaningful review of both the cause of detention and the Executive's power to detain. . . .
Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . .
The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.
In ruling that the CSRTs woefully fail to provide the constitutionally guaranteed safeguards, the Court quoted Alexander Hamilton's Federalist No. 84: "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." It is that deeply tyrannical practice -- implemented by the Bush administration and authorized by a bipartisan act of Congress -- which the U.S. Supreme Court, today, struck down.
I wonder, in practice, what this will mean? As near as I can tell, there's not a single country in the world willing to take these prisoners even if they get a trial and are judged innocent. This means that we either release them in the United States or -- what? Dump them on a military cargo plane and release them in Afghanistan, where no one can stop us from doing it? There's no question that the court did the right thing today, but I wonder what the end game is here?
In his 1992 Senate bid, McCain was joined on the campaign trail by his wife, Cindy, as well as campaign aide Doug Cole and consultant Wes Gullett. At one point, Cindy playfully twirled McCain's hair and said, "You're getting a little thin up there." McCain's face reddened, and he responded, "At least I don't plaster on the makeup like a trollop, you cunt."
Taking a more positive approach, I've got two words for you: Supreme Court.
Here are the 9 Justices, ranked from oldest to youngest:
John Paul Stevens (88)
Ruth Bader Ginsburg (75)
Antonin Scalia (72)
Anthony Kennedy (71)
Stephen Breyer (69)
David Souter (68)
Clarence Thomas (59)
Samuel A. Alito, Jr. (58)
John G. Roberts. (53)
Over the next 8 years, it's entirely possible that half of the Justices on the Court will be replaced.
I understand that anger and resentment can be powerful motivators, but...
UPDATE: Be sure to check out this story about the way McCain ended his first marriage, too.
Law professors are sometimes influential, but in a general way. Their insights can help shape the law, over time and at the margins.
But John F. Duffy, who teaches at the George Washington University Law School, is a different kind of law professor. He has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes, and his short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars.
His basic point does not appear to be in dispute. Since 2000, patent judges have been appointed by a government official without the constitutional power to do so.
"I actually ran it by a number of colleagues who teach administrative law and constitutional law," Professor Duffy said, recalling his own surprise at finding such a fundamental and important flaw. He thought he must have been missing something.
"No one thought it was a close question," Professor Duffy said.
Charles Miller, a spokesman for the Justice Department, said the government had no comment. "There is really nothing we can say at this time," he said.
But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution.
They did warn that the impact of Professor Duffy's discovery could be cataclysmic for the patent world, casting "a cloud over many thousands of board decisions" and "unsettling the expectations of patent holders and licensees across the nation." But they did not say Professor Duffy was wrong.
If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved.
The problem Professor Duffy identified at least arguably invalidates every decision of the patent court decided by a three-judge panel that included at least one judge appointed after March 2000.
The appeals court, the United States Court of Appeals for the Federal Circuit, ducked the question in January, which was easy to do because the company on the losing side raised it only after the court had already issued its decision. The company, Translogic Technology, was frank in explaining the delay: it had not known of the issue until Professor Duffy published his article.
Last month, Translogic asked the Supreme Court to consider the question.
Some provisions of the Constitution are open to interpretation, but some are clear. The Constitution says, for instance, that some government officials may be appointed only by the president, the courts or "heads of departments" like the attorney general or the secretary of commerce.
But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce. Jennifer Rankin Byrne, a spokeswoman for the office, said 46 of the 74 judges on the patent court, the Board of Patent Appeals and Interferences, were appointed under the new law.
"That method of appointment is almost certainly unconstitutional," Professor Duffy wrote in his paper, first published last summer on an influential patent law blog.
There are two possible contrary arguments. One is that the patent judges are not the sort of "inferior officers" to whom the Constitution's appointments clause applies, but instead mere employees (and thus inferior to inferior officers). But the Supreme Court has already ruled, in Freytag v. Commissioner in 1991, that special trial judges of the tax court are inferior officers, and the patent judges have more power and discretion than they do.
The other possible argument is that the director of the patent office is entitled to appoint the judges because he is the head of a department. The Freytag decision "pretty clearly forecloses" that argument, Professor Duffy wrote. Freytag said the departments referred to in the Constitution are "executive departments like the cabinet-level departments." But the patent office is part of the Commerce Department, and its director is an under secretary of the department -- not its head.
The question of who gets to appoint "inferior officers" may seem a trivial one. But the Constitution's framers cared about it.
The "manipulation of official appointments" was "one of the American revolutionary generation's greatest grievances against executive power," Justice Harry A. Blackmun explained in Freytag. The framers understood, he continued, "that by limiting the appointment power they could ensure that those who wielded it were accountable to political force and the will of the people."
The Office of Legal Counsel at the Justice Department, which is supposed to catch constitutional problems in pending legislation, only last year published a 41-page memorandum on the importance and limits of the appointments clause. People who wield the delegated sovereign powers of the federal government are officers subject to the appointments clause, the memorandum said, and judges certainly wield such power.
"Appointments clause issues were our bread and butter," said John O. McGinnis, a law professor at Northwestern who was deputy assistant attorney general in the Office of Legal Counsel from 1987 to 1991. Professor McGinnis said Professor Duffy's analysis appeared correct.
"You have to understand that O.L.C. looks at just an enormous number of bills," he added. "A line attorney might just miss it."
The Supreme Court will soon decide whether to take up the question, in the case involving Translogic, one with $86 million at stake.
"An improperly constituted tribunal should not be deciding the case," said a lawyer for Translogic, Robert A. Long of Covington & Burling in Washington. "You have to go back and have the decision made by a properly constituted panel."
So you mean to tell me that for 8 years, the president has been nominating and confirming patent judges without involving the Senate, and no one bothered to question this? Not once along the way did someone stop and think about how obviously unconstitutional this was? Not the people nominating the judges? Not the judges themselves? No one?
Meanwhile, this article really is quite remarkable in its ability to cover substance and provide historical background. In our political coverage we get nonsense, but in an obscure patent law article we get good journalism? Wha?
McCain apparently gave a big speech today on judges and judicial activism. After Bush v. Gore (2000), you would think "judicial activism" would be a criticism impossible for Republicans to make, but apparently not.
This idea that anyone, Republican or Democrat, selects judges for their intelligence and analytical ability, and not their judicial philosophy, is ridiculous. Conservatives nominate justices that will decide cases consistent with a conservative / Federalist Society philosophy, and liberals nominate judges that will decide cases consistent with a liberal philosophy. To pretend otherwise is to both ignore reality and assume citizens are uninformed idiots.
"Activism" really is just code for "decisions I don't like." If you like the way Bush v. Gore ignored the primacy of the states in our constitutionally defined electoral system, then it was a perfectly valid decision. If you don't, it was an example of judicial activism at its worst. What matters here is whether or not you agree with the decision, and not some abstract and entirely undefinable notion of "activism."
Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal Justices (some of the numbers can be found here); and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican appointed judges over the past eighty years (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republican appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed judges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%).
Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That's what the numbers show.
+ Publius has one of the best defenses I've read of judicial review in a long, long time.
+ Last year, the Supreme Court ordered the EPA to begin regulating carbon emissions under the Clean Air Act. This year, the EPA's political hacks decided to ignore the Court. Brilliant!
+ Can we please stop with the "Free Mumia!" nonsense now? Please?
