Simon's blog

This would have been inconceivable just twenty years ago.

China, take note. As the soviets once did, for a little while you have your boot on the throat of your salvation. But, my dear brothers and sisters:

Quia pulvis es et in pulverem reverteris.

The concluding paragraph of this is filler, and badly-written filler at that.

Yager's point is that Terrie Rouse, fired this week as CEO of the Capitol Visitor Center, was fired fifteen years ago by another employer. Unprecedented! Fired, you say? Why, she was fired just this week, too! Is there some connection, do you suppose? If there is, it goes unexplained, leaving the reader wondering what possible relevance this could be; are we supposed to infer that she had a record of being fired for poor behavior? If so, that seems like quite a serious charge to leave dangling—remarked on but undeveloped—from the story.

And how about that employer? The California Afro-American Museum, Yager wants us to know, is "the country’s largest black museum in the nation." A splendid catch on the part of Mr. Yager and his editor; mutatis mutandis, see this.

A clever play by Judge Bolton in the Arizona case, who today grants in part the United States' request for a preliminary injunction against the enforcement of Arizona's controversial immigration enforcement law.

I say clever because the corpulent Ninth Circuit is a slow eater. The median case processing time last year was 17.9 months, and—although I don't know the circuit's caselaw on this, so take the comment with a grain of salt—it's hard to see how a stay request would fall within circuit rule 27-3's authorization of emergency motions. Thus, the combination of the court's injunction against the enforcement of SB1070 with the state's inevitable appeal will supply about a year and a half to moot the case by acting on immigration at the federal level while avoiding a final determination on the merits. On the other hand, while the law will not be enforced, if the United States fails to act in this window, the possibility of upholding the Arizona law remains open.

If I was counseling Arizona, unless an emergency stay is thought a viable option, I dare suggest that months could be shaved off this case's disposition if they swallow their pride, forgo appealing the preliminary injunction, and pursue a ruling on the merits in the district court.

Added: But, of course, they will appeal, even though the only thing accomplished is delaying a ruling on the merits by months. The district court now lacks jurisdiction to proceed (see, e.g., UNIC v. R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001); Resnik v. La Paz Guest Ranch, 289 F.2d 814, 818 (9th Cir. 1961) ("As a general rule, … once an appeal has been taken—once notice of appeal has been timely filed—the district court is divested of jurisdiction to take any action except in aid of the appeal")), and as discussed above, the Ninth Circuit will take an average of 18 months to deny the appeal. Arizona would have been better served by accepting the preliminary injunction (the law wasn't "struck down," as some reporters have put it) and pursuing the merits in the district court.

A betrayal of their oaths of office, constitutional heresy, and a recipe for Bush v. Gore II and electoral catastrophe. It is as desperately urgent as it it unlikely that Governor Patrick veto this move. Until I have time to write more, I join Tara Ross' comments.

Added: Consider just the practical question, to say nothing of constitutional principle. What will happen when, on election day 20xx, this change—and its constitutionality vel non—is decisive? The salient questions can't be litigated in advance; even if the question were ripe outside of the context of an election, who would have standing other than the candidates? So the election will be litigated in medias res, a case that will make Bush v. Gore look like a picnic.

You know that I'm a nitpicker where language is concerned, so I loved this:

Via the Rogue Classicist.

"Space," [the Hitch Hiker's Guide to the Galaxy] says, "is big. Really big. You just won't believe how vastly hugely mindbogglingly big it is. I mean you may think it's a long way down the road to the chemist, but that's just peanuts to space. Listen..." and so on.

And so on indeed! While the CS Monitor raises some doubts, it appears that scientists have stumbled onto a star that is really, vastly, hugely, amazingly, mindbogglingly big:

R136a1 is approximately 265 times more massive than the sun.

USCCB has posted a copy of remarks offered by Bp. Gerald Kicanas (Diocese of Tucson) to a House subcommittee considering immigration reform. I found these helpful and interesting, and maybe you will too.

Mark Shea and Fr. Longenecker have some thoughts on clericalism. With respect, I dissent, at least in part, and have some thoughts of my own to chip in (PDF warning).

If Nicholas Carr is correct that the internet is shortening our attention spans, surely we will never know it, since his theory demands that his 35 paragraph article arguing the case is doomed to go unread?

We have followed McConkey v. van Hollen since almost the bitter start. Last week, the story reached its end with the Wisconsin Supreme Court rejecting McConkey's challenge on the merits, and as I predicted in December 2007, it was Milwaukee Alliance v. WI Elections Bd., in the library, with a candlestick.

The President will make a recess appointment to the vacant CMS administrator post. I recently explained my view of the recess appointments clause in great detail, so the only business today is to apply those principles. My understanding is that this is a long-time vacancy which actually arose on 9/5/2006, a day on which the Senate was in session. Because I believe that a recess appointment is invalid unless the vacancy arose during the recess of the Senate, no recess appointment to this post, be it Berwick or anyone else, is valid.

The federal government sues Arizona over its immigration law on a preemption theory. We have the complaint in United States v. Arizona here; NPR has the United States' motion for a preliminary injunction here

After PaPACA was enacted in late March, I urged the GOP to campaign on "full and immediate repeal." A few days later, opinion polling found a 55%-42% majority for repeal, with 59% of independents supporting.1

Nevertheless, all the usual caveats about opinion polling applied. It was one poll, taken in the immediate aftermath. Blood was still up. It's much more interesting to see that Rasmussen has been keeping an eye on things, and the majority for repeal appears to be durable. Fourteen weeks later, we learn that a 60%-36% majority favors repeal, comprising not only the predictable 81% of Republicans, but also 65% of independents.

This is happy news indeed! While it remains a full-court shot, undoing the mistake appears a viable goal, at least insofar as public support is there. The GOP can, and should, campaign on a platform of full and immediate repeal. Those two qualifications are important, though. It must be full repeal, because once you start talking about unbundling particular pieces (or worse yet, what will ultimately replace PaPACA), the coalition will crumble.2 It's much easier to assemble a majority against a bad idea than it is to get agreement on what should be done instead. And it must be immediate repeal, because the longer we dither, the longer the odds of success. There is a strike-while-the-iron-is-hot aspect to repeal; "once regulatory programs have given rise to communities of interest in their continuation, amending or repealing [the enabling statute] ... may be more difficult than enacting it in the first place."3 This tendency isn't limited to regulatory programs and is particularly acute with direct entitlements. Once Obamacare goes into full effect, it will create a constituency of dependents primed to oppose repeal tooth and nail. As the old saw goes, "it is difficult to get a man to understand something when his salary depends upon his not understanding it."

Lastly, it bears noting that as repeal seems possible, it is also desirable. Even if undoing this economic train wreck was not sufficient incentive, there's a more abstract reason to do it. Obamacare represents a catastrophic resurgence of a failed paradigm that must be put back in its cage before it devours more of our heritage. Repealing it would not only disprove Chesterton, who wrote that as the "business of Progressives is to go on making mistakes," that of "Conservatives is to prevent the mistakes from being corrected," but would also teach, if only for a while, a lesson that progressives should be taught anew in each generation: it isn't a one-way ratchet.4 We should discourage a frame of mind—readily apparent in the last days before the House vote—that sees politics as a desperate struggle to just sink that last putt at all costs on the assumption that once it's in, it's done, and the game is over.

1. 1. Independent support is important because the current breakdown in voter registration presumptively requires a GOP candidate to win approximately 60% of independents. It therefore is or should be a tough sell to make something the focus of a campaign when it lacks independent support, and conversely, an issue that enjoys independent support is all the more appealing as a campaign issue. Independent support also makes it tough to paint an issue as the sole concern of the fringe, placating faint-of-heart Brooksians.
2. 2. More precisely, the existing cracks and joins in the coalition will become visible and deepen. Cf. my post here.
3. 3. Cynthia Farina, Deconstructing Nondelegation, 33 Harv. J. of L. & P.P. 87, 98 (2010).
4. 4. I am glumly aware that this may get me branded a "fundamentalist." Cf. Richard McBrien, Catholicism 93 (3d ed. 1994) (fundamentalists "want to reclaim a place they feel has been taken from them. They would restore what are presumed or claimed to be old and secure ways retrieved from a world they are losing" (quoting Marty & Appleby, The Glory and the Power 17 (1992))).

I post on a point of personal privilege.

My favorite Dilbert cartoon goes something like this. Dilbert tells Dogbert: you remember how last election you told me that since we disagreed on every major issue, our votes would cancel each other out, so we might as well stay home? Well, concludes an infuriated Dilbert, dogs can't vote!

"Well, replies Dogbert, "not directly."

I tell you this story, because, well...

I have something important that I must do. Will be back to explain later.

Christopher Hitchens has throat cancer, we learn. Christina Odone wonders:

he shows zero tolerance for believers: a person of faith must be a fanatic, or a fraud. (Mother Teresa, according to his book The Missionary Position, was both.) He refuses to consider the evidence of religious do-gooding, found in the Catholic Church’s AIDS clinics in Africa, Anglican schools in Asia, and Jewish charities around the globe. He is determined to persecute Pope Benedict XVI, and would like to see him arrested on his forthcoming visit to Britain.

… I find myself in a quandary: upon hearing that an acquaintance has throat cancer, of course I instantly want to pray for them. … But is it right to pray for someone who claims to find prayer hateful?

Is she serious? This is a no-brainer. The answer is yes. I'm with the Anchoress; Hitchens may have almost everything wrong, but he goes wrong in such eloquent and entertaining ways. I admire his writing, I shall continue to pray for him, and encourage others to do likewise. As for the argument cited by Odone (Johann Hari "forbid[s] everyone from praying for" Hitchens, because "[h]e would HATE that"): St. Paul has already answered that.

Natalie Tennant, West Virginia's Secretary of State, is not inclined to hold a special election to fill Senator Byrd's seat. Her statement is here. The Governor will make an appointment for the rest of the term, and two elections will be held on the 2012 ballot: the regular election and one to round out the remaining weeks of Byrd's term.

While she has raised eyebrows, Tennant seems to be on the right side of West Virginia's vacancy statute. West Va. Code. § 3-10-3 provides:

Any vacancy occurring in the office of ... United States senator ... shall be filled by the governor of the state by appointment.

If the unexpired term ... be for a period of less than two years and six months, the appointment to fill the vacancy shall be for the unexpired term.

If the unexpired term of any office be for a longer period than above specified, [as it is here,] the appointment shall be until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.

(Emphasis and paragraph breaks added.) If the deadlines have passed for the current round of primaries and elections, then no one can qualify to displace the appointee until the next round of elections. Both the plain meaning of the statute and, as Tennant notes, West Va. ex rel. Robb v. Gaston, 191 W.Va. 492, 446 S.E.2d 714 (1994), seem to support her position.

So far we have stayed within the walls of the West Virginia statute. Not unlike the time we looked at Paul Kirk, Scott Brown, and the Massachusetts special election, however, I must note that two founts of law bear on elections to fill Senate vacancies: the Seventeenth Amendment, and legislation passed by states pursuant to it. The state legislature has wide latitude within bounds, see Valenti v. Rockefeller, 292 F. Supp. 851, 856 (1968), summarily aff'd, 393 U.S. 405 (1969), but it can't give out more than has been handed to it. So it must act within the constraints of the Seventeenth Amendment, which provides:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

It's clear that the Seventeenth Amendment takes as normative that, as Senators are ordinarily elected, they will also be extraordinarily elected when necessary. There's a tension between the Seventeenth Amendment value favoring elected Senators and the scope it must be understood to allow for state discretion in setting the practicalities. And while it doesn't necessarily foreclose West Virginia's schema, it does direct the executive to issue writs of election in the event of a vacancy.

One could frame an argument, I think, that the Seventeenth Amendment only allows states to piggyback the special election onto the regular election cycle so long as the regular cycle fills the vacancy within a reasonable timeframe. In other words, the assumption underlying Tennant's section 3-10-3 argument is that the state has sufficient latitude that a special election can be deferred until the next regular-cycle election, no matter that it's two years hence. Against that, one could argue that the Seventeenth Amendment requires states to hold an election--even if it's out-of-cycle--within a reasonable timeframe. That seems a tough row to hoe, cf. Judge v. Quinn (7th Cir. June 16, 2010), but I think that is the route which the inevitable litigation will take. The statute seems internally watertight, which leaves the ad fundamentum constitutional attack on the statute itself.

Today's decision in Free Enterprise Fund v. PCAOB is certainly correct as a matter of law; even the dissent has an air of resigned pro forma about it. While it will provoke a storm of crocodile tears and faux outrage among the usual suspects, however (or at least would do were it not overshadowed by the blockbuster McDonald v. Chicago), it is actually very modest and limited--perhaps too limited--in its remedy, as Prof. Bainbridge explains.

The long-serving West Virginian has passed away, and one can't help but think that the Senate will be poorer for want of the strongest advocate of its traditions. Our condolences to his family.

Rep. Barton called it a "shakedown." And it's driving many on the right to distraction; even a sensible venue like AmThink is aping Bush-era Democrats in squealing that America has "brutally abandoned the rule of law." I'm not convinced that something awful has happened, let alone to the point that such overheated rhetoric is warranted.

So far as I can tell, what happened is this: BP was asked, and agreed, to establish a $20bn escrow account for defraying damages claims against it for the spill. That isn't chump change, even for the oil giant; BP's 2010 first quarter replacement cost profit was just under $5.6bn. My understanding, and perhaps this is why I'm not perturbed, is that this fund is designed for defraying damages awarded in later court proceedings, not amounts to be determined by some executive branch functionary on the basis of damages claims asserted but not proven.

Now, most states allow pre-trial attachment, as do the Federal Rules of Civil Procedure, and we know there's no inherent constitutional problem with that. See Connecticut v. Doehr, 501 U.S. 1 (1991). How is the BP escrow fund fundamentally different?

It is certainly different in particulars. Rule 64 authorizes attachment after litigation commences and in the context of a specific case; this fund is general and free-floating. I'm not saying that rule 64 authorizes it. Rather, my point is that pre-trial impoundment of assets to ensure that an averse judgment can be satisfied is not unknown to American law. Is the BP escrow fund fundamentally different from attachment? Why? We know that litigation will ensue. After all, this is America; we sue over a spilled cup of coffee, let alone millions of spilled gallons of crude oil. Is the escrow fund a radical innovation merely because it's free-floating rather than tied to a particular case? To the extent that the attachment analogy holds, I don't see the problem. "The Constitution deals with substance, not shadows."

It is certainly true that this situation is rife with potential constitutional pitfalls. As I understand it—which isn't far, frankly—33 U.S.C. § 2702 establishes an exclusive framework for damages, and section 2704(a) caps BP's liability in this situation at $75m, far less than the escrow account's value. That is the famous "damages cap" about which we have heard so much. Some critics want to raise it. And doing so would almost certainly create a rule of law problem in the form of an ex post facto clause violation. Moreover, while Doehr was cited above for the proposition that attachment is valid in se, that case teaches that attachment requires due process to be valid. If the fund wasn't voluntary, this would look more like a seizure, and we could have a problem.

Nevertheless, these problems are, in a word, speculative. Strive though the heritage foundation might, it fails to convincingly controvert the voluntariness of BP's establishment of the fund. It could certainly be argued that had BP failed to act voluntarily, force or coercion might have ensued, but we don't usually treat things that could happen as if they had happened, let alone things that could have happened but didn't as if they had. By analogy, consider standing. If an injury has not happened yet, it must be imminent, or there's no standing to sue. So teaches Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The theory that an injury could have arisen if things had played out differently won't suffice. Cf., e.g., Sea Shore Corp. v. Sullivan, 158 F.3d 51 (1st Cir. 1998). Similarly here: the problems raised are speculative.

Assuming that an involuntary attachment by way of this escrow account would violate due process and rule of law principles, there's no indication that it was involuntary. Contrary claims are easy to make but remain unproven. Meanwhile, if it was voluntary on BP's part, there's no problem. I think that what is really going on here is that many people have a deep-seated anxiety about President Obama. We don't trust him. We are suspicious of his motives; we fear what he might do with his power if he isn't watched closely. That is appropriate and warranted. To some extent, it would be appropriate with any President; it's all the more so with a President with such expansive aspirations and seemingly limited respect for our Constitutional traditions. But in this instance, I think it is misplaced.