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?221 House Republicans are idiots

Do you realize how much harm you just did to your credibility to speak on Constitutional issues? 221 Republicans, most of whom can be found railing about how important the Constitution is at a town hall meeting near you, including such soi-disant constitutionalists as Michele Bachmann and Mike Pence, voted for this: "If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law."

Turns out that it's a lot easier to mouth the words of the Constitution aloud in the well of the House than it is to read it, comprehend it, and adhere to it. For shame, House Republicans.

One thing that shouldn't change

One of my first posts after the 2008 election offered ten issues whose partisan valence had been reversed by the election, but that were unchanged by the result. (See also the neutral principles section of this post.) Number one on my list was this: "The executive branch is still unitary. The Constitution vests the executive power in President Obama; 'this does not mean some of the executive power,' as Justice Scalia reminded us in Morrison, 'but all of the executive power.'"

Alas, this morning, NPR affirmed that all supposed principles are ad hoc for some, reporting on SG nominee Donald Verrilli's confirmation hearing. The fire under the kettle here is the President's recent decision to abandon DOMA, and some folks aren't happy about that:

Republican senators noted that the tradition of the Justice Department is that the solicitor general defends laws enacted by Congress unless those laws impinge on presidential authority or no reasonable argument can be made on behalf of the law. DOMA does not involve presidential authority, and the senators argued that because the Justice Department previously defended the law, there obviously were reasonable arguments to be made.

. . . .
Republican senators said it was crucial to know that Verrilli would act independently, as other solicitors general have done. ¶ Sen. Orrin Hatch (R-UT) said he and others needed "a simple and clear answer" from Verrilli. ¶ "If you believe reasonable arguments exist to defend a statute's constitutionality, but the attorney general or president says otherwise, will you defend the statutes or resign?" he asked.

Verrilli responded that he would "defend the statute unless instructed by [his] superiors not to do so." ¶ Replied Hatch: "That is not a good answer."

Actually, that's a perfectly good answer. For eight years, the GOP defended (and Democrats assailed) the prerogatives of the Presidency over the unitary executive branch. And now, given a Democratic President, and as night follows day, we have GOP Senators insisting on the SG's independence!

In fact, directing the SG to take a particular position in litigation was one of the examples I gave in the second post linked above of the President's unexceptional exercise of his authority. It's not hard to see why: In The President's Brief, I pointed out that it would be nonsense to inpute the SG's position in a case to the President unless the President can control the SG, and vice versa. And if the President can't control the SG, not only is the SG unaccountable to the people but the President's ability to discharge his obligation to take care that the laws be faithfully executed, U.S. Const., Art. II § 3, is compromised. Two posts from Septeber 2008 illustrate those points. As to the first: While agencies and officers like the Secretary of State or the SG aren't directly accountable to the people, they are so indirectly through President, who is. Chevron v. NRDC, 467 U.S. 837, 865-66 (1984). The President's authority to direct the unitary executive is necessary to ensure public control of the government. And as to the second: Governors and Presidents can't personally implement policy; they must they rely on their officers. Our first President perceived this almost instantly: "The impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust." 30 Writings of George Washington 333, 334 (May 25, 1789) (Fitzpatrick ed., 1939). To function effectively, a chief executive must work through and therefore be able to trust and rely on her subordinates"—their "hands," see United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc)—and among several necessary corollaries to that is that any officer to whom executive functions are assigned must be "fully within the supervision and control of the President." Morrison v. Olson, 487 U.S. 654, 708 (1988) (Scalia, J., dissenting).

What animates the debate is, as I have said, that Republicans generally like DOMA, and they're incensed that the President is somehow "cheating." (We would not be having this conversation if the Obama administration had announced that it would no longer defend Obamacare in court, and it would be Democrats making these points if President Bachmann had made the announcement.) Nevertheless, there is tension here is between the President's duty to take care that the laws be faithfully executed and his oath to uphold the Constitution. That oath allows (indeed, obligates) him to veto legislation that he deems unconstitutional, and in exceptional cases, it may allow (indeed, obligate) him to refuse to enforce a statute that he deems unconstitutional. (It would be a harder case if the Supreme Court had exercised its authoritative lawsaying role; then the President, pace President Jackson, would have to fall in line, in my own view.) But we need to distinguish between "statutes" and "law." An unconstitutional statute is not law. See U.S. Const., Art. VI, cl. 2 (only the Constitution "and the laws of the United States which shall be made in pursuance thereof" are the law of the land (emphasis added)); Marbury v. Madison, 5 U.S. 137 (1803). Here's a very glib statement of how I conceptualize law (to the extent relevant here): The sum of the Constitution and the statutes. But it's not all addition! A statute that is unconstitutional is deducted to that extent. Republicans are saying that the President is refusing to enforce "the law"; I think he's saying that because the statute isn't Constitutional, it isn't part of the totality of law, and he won't defend it.

So who's right? Well, there's the rub. The question actually becomes, who gets to decide. I think that whatever it lacks in theoretical elegance, the traditional view is a workable balance: Generally, the executive should make all good-faith arguments possible while retaining the authority in exceptional cases to refuse to defend. And that doesn't change just because I don't like this President or because I disagree with the call. The President's authority to direct the unitary executive branch has not, in my view, changed since 2008, and it will not change after 2012 either.

Two quick hits

Via Howard Bashman two interesting cases: the Seventh Circuit's decision in Randall v. Rolls Royce, involving Title VII and class certification, and the Ninth Circuit's decision in United States v. Cotterman, an interesting border search case.

Walmart and Title VII

It looks like the Walmart class action case is going to come a cropper, as they say, and the optics are unfortunate. By unhappy coincidence, the court's female justices are all liberals, and a 5-4 decision in a case that is in some senses about sex discrimination, with the female justices all on the losing side, seems tailor-made for outraged editorials in the New York Fishwrap. There is, of course, a splendid solution for that, one that President Daniels/Pawlenty/whomever should take. (Interestingly, Judge Sykes gave a talk on this subject just recently.)

This case isn't so much about the substance of employment disrimination as the outer bounds of the class action device, but while I'm here, a word on sex discrimination cases. Title VII bans discrimination on a host of grounds, including sex, and there's no doubt whatsoever that such discrimination happened. Cf. Ledbetter v. Goodyear, 550 U.S. 618 (2007). But I must admit to some doubts about how widespread it remains today, because refusing the services of a superior candidate on grounds wholly extraneous to anticipated performance (as most of the Title VII protections are) is, in a word, stupid. Employers who discriminate in this way lose out on talent and thus revenue, which might lead one to think the behavior self-deterring. Law can generally assume that people act rationally, and so it only needs to intervene to prevent socially unacceptable behavior that enriches the actor; socially unacceptable behavior that imposes costs on the actor is by-and-large self-deterring. Cf. Easterbrook, The Chicago School and Exclusionary Conduct, 31 Harv. J. of L. & P.P. 439 (2008).

Put another way, promoting optimally-talented people benefits a company, so a claim that an employer is arbitrarily excluding a group of otherwise talented people from promotion is ultimately a claim that the company is acting irrationally. And we ought to be very skeptical about claims that require us to believe that an employer is acting against its own interest on the basis of dubious—even frivolous—asserted motivations. Cf. Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("if the factual context renders respondents' claim implausible—if the claim is one that simply makes no economic sense—respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary"); see also id., at 595. One must therefore wonder why EEOC would grant leave to sue in cases like Greene v. Potter, 557 F.3d 765 (7th Cir. 2009), Holland v. Sam's Club, 487 F.3d 641 (8th Cir. 2007), or Grabovac v. Allstate, 426 F.3d 951 (8th Cir. 2005), where claims of gender discrimination are easily rejected. This is only slightly less true in cases like Zimmerman v. Associates First Capital Corp., 251 F.3d 376 (2nd Cir. 2001), where discrimination can be and has been inferred by a jury.

I certainly wouldn't say that sex discrimination is extinct, but I think we (and particularly EEOC) ought to take into account the changes in society since Title VII was enacted and view such claims with a significantly more skeptical eye before exposing companies to significant litigation costs.

Just One Thought...

After watching Obama's speech on Libya, which I thought was good, and hit most of the right notes, I must say that when I heard this:

For more than four decades, the Libyan people have been ruled by a tyrant -– Muammar Qaddafi. He has denied his people freedom, exploited their wealth, murdered opponents at home and abroad, and terrorized innocent people around the world –- including Americans who were killed by Libyan agents

and this:

In this effort, the United States has not acted alone. Instead, we have been joined by a strong and growing coalition. This includes our closest allies -– nations like the United Kingdom, France, Canada, Denmark, Norway, Italy, Spain, Greece, and Turkey –- all of whom have fought by our sides for decades. And it includes Arab partners like Qatar and the United Arab Emirates, who have chosen to meet their responsibilities to defend the Libyan people.

I couldn't get out of my head this situation was similar to Iraq, in that we also were dealing with a tyrant, who ravaged his own people, and we acted, despite arguments to the contrary, with other nations, and seventeen UN resolutions.

I'm not trying to start anything--Obama made an explicit attempt to distance this effort from Iraq by opposing regime change by miltary force, and I don't doubt President Obama's sincerity (he supported the humanitarian effort in Kosovo), but there are a number of people who supported this effort, yet opposed the war in Iraq. Is it because of the limited scope of the effort? Those questions will be asked, and they are legitimate ones.

ADDED: Thinking it over, I realize that many will argue that while both men were tyrants and ravaged their own people, Qaddafi was (is) an active threat, and the humanitarian crisis remains, while Saddam, as the Iraq war critics will argue, was "contained." The validity of the latter point is of course a large part of the debate over Iraq. They will also point out that the mission is not regime change, but to stop the slaughter of innocent people--of course, that still leaves the question Of Syria, Bahrain, Yemen, and Iran...

Summorum Pontificum clarification arriving in April

John Allen—the silver lining to the National Catholic Dissenter's toxic and blackening cloud—reports that next month, the Vatican will promulgate the long-awaited instruction clarifying aspects of Summorum Pontificum, the 1997 motu proprio liberalizing use of the 1962 "Tridentine" missal. According to Allen, inter alia, "it will call for seminarians to be trained not just in Latin, but in the older rite itself, at least so they will know how to execute it faithfully and understand what’s being said."

This is refreshing, because news that the instruction is on the way—combined with rumors that it will retreat from SP-has produced great anxiety. It's particularly striking if seminarians are to be trained. One interpretation of SP that has been advanced suggests that the instruction is a giveaway to a dying generation clinging to the Tridentine Mass (the "extraordinary form of the Roman rite" in SP-speak), but that argument falters if seminarians are to be trained. That implies that the EF is here for the long haul. And I must admit, I don't find that surprising, because the "sop to the oldies" explanation always seemed in tension with Benedict's letter accompanying SP, which noted that "young persons too have discovered this liturgical form, felt its attraction and found in it a form of encounter with the Mystery of the Most Holy Eucharist, particularly suited to them."

We shall wait to see what April brings.

A Double-Minded Man

This has to be the most cynical flip-flop I've ever seen:

The flip:

and the flop:

The span between these two clips is sixteen days. Sixteen days. I'd like to really see Gingrich's defenders try to reconcile this. I guess he really is the self-serving cynical panderer many of us thought he was.

If I've read this wrong, I wait to be corrected....

HT: Dave Weigel

ADDED: Gingrich attempts to clarify, and fails miserably.

South Dakota's HB1217

Via Ann Althouse, the WaPo reports that a new law in South Dakota will require informed consent and a three day waiting period before an abortion can be procured. The Governor's press release is here; the bill's text is here.

Althouse cites Casey's language that "the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it," 505 U.S., at 877, and skeptically remarks "[s]o you tell me, why 3 days?" But that seems to mistake the burden of the argument to me, and Casey seems to offer scant support for the bill's critics.

Casey's standard is about undue burdens on the right to obtain an abortion: To fail, a statute must "plac[e] a substantial obstacle in the path of a woman seeking an abortion." 505 U.S. at 877. But how can a 72 hour delay constitute a substantial obstacle? Recall that Casey itself upheld a 24 hour waiting period, 505 U.S., at 881, and because a 24 hour delay isn't an undue burden, it seems to me that the onus really belongs on the critics to explain why 24 hours is okay but 72 isn't. Althouse gamely steps up to the plate in the comments, suggesting that "[i]f a woman has to travel some distance to get to a clinic and she has to stay in a hotel or travel back and forth, then it would make it more expensive"—but the very same thing same could be said of a 24 hour waiting period, so the objection falters.

Even if HB1217 imposes some difficulties, I don't see how it is a substantial obstacle, or an undue burden (stipulating that it is a burden at all). These modifiers in Casey mean something: some obstacles, some burdens are acceptable. Courts have found that the limits are transgressed by statutes which in fact or in effect bar access to abortion (e.g. Casey 505 U.S., at 893-94 (spousal notification law is a substantial obstacle); Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (statute providing a tort action against medical doctors performing abortion is a substantial obstacle)), while, by contrast, an Arizona statute requiring parental or judicial consent (undoubtedly an obstacle) so obviously cleared this bar that Planned Parenthood's inevitable lawsuit didn't bother challenging its basic soundness. See Planned P'hood of So. Arizona v. Lawall, 307 F.3d 783 (9th Cir. 2002). I think these are instructive: substantial obstacles are those which operate to actually prevent access to abortion. (If so, Carhart's warning about facial challenges snaps into sharp focus.) Ultrasound laws, fœtal pain laws, and reasonable waiting periods—these are not undue burdens under existing caselaw. Casey itself doesn't supply a clean and precise line, so critics of HB1217 can't hide behind its skirt; the Supreme Court has supplied the question, not the answer, and answering that question in this case will, so far as I know, break new ground.

There was a time when Casey was understood as a shell game—that the court said some restrictions were okay, but it really meant "no abortion restrictions." A court could therefore be justified in reflexively striking down an abortion law. But if Gonzales v. Carhart teaches anything, it's that those days are over: Justice Kennedy effectively told us, "no, I really meant it. Casey has an outer boundary." So it does—and this statute lies in the safe zone.

Is this a joke?

Libyan military action was a BAD idea; first innocent civilian casualties from U.S. action

I have said from day one that establishing the no-fly zone in Libya was a very bad policy for the United States to adopt. No interests of the United States (other than our general humanitarian desires for all nations to be free) were being impacted by Qaddafi's brutality toward his own citizens. Intervening, I said, was more likely to cause more people in that region to dislike us. I particularly noted that we would be held responsible for civilian casualties.

In response, several people said, more or less: "What civilian casualties? We're only going to target Qaddafi's air force and maybe some maneuvering ground troops away from civilian areas." Well, today U.S. forces seem to have fired on a batch of innocent civilians.

According to this story in the U.K.'s Daily Mail, friendly residents of a nearby village came out to welcome U.S. pilots after their F-15 crashed. The U.S. rescue helicopter coming to retrieve the pilots opened fire on the approaching villagers (presumably because they assumed that any Libyans walking towards our pilots had a high risk of being hostile).

This is the first event. There will be others. War is MESSY. The U.S. does everything humanly possible to minimize civilian casualties caused by its armed forces, but "humanly possible" is a severe limit on our abilities in that area. And the rest of the world, and that region in particular, doesn't give us much credit for our efforts, but rather treat each civilian death as something akin to an act of murder on our part.

My point, of course, is not to criticize the troops in the rescue helicopter who opened fire. I have no doubt they were acting honorably, and solely to protect our downed pilots from a potential threat. My point is that such misunderstandings will ALWAYS occur in any military action, no matter how limited. And every single one of them will do substantial damage to the U.S. reputation in that world, and allow al Qaeda and our other enemies in the area even more ammunition to attack us for "invading" their lands and killing their people.

That by itself is not a sufficient reason to stop us from taking necessary action to defend American interests. But it IS good reason to stop us from taking action for solely humanitarian reasons.

Civic illiteracy

In the wake of this Newsweek piece, there will be smugness in other countries about how illiterate Americans are in civics, but my question is: "Compared to which other country?" I wonder, for example, what percentage of a thousand Britons could correctly answer analogous questions—the century in which the restoration took place? The king who signed Magna Carta? How many members has the House of Commons? Who is the President (i.e. Chief Justice) of the Supreme Court of the United Kingdom? For what is Mary Wollstonecraft famous? Which Prime Minister, while serving as Home Secretary, created the first modern police force? And so on. I think most Americans could tell you which side won the civil war; I am less sure that most Britons could tell you how the wars of the roses concluded.

And don't say that Britain has much more history to remember! That's nonsense. Anglo-American civilization has a shared history until that unpleasantness in the eighteenth century; everything that went before is as much a part of American history as it is part of Britain's—those colonists didn't arrive from mars, they arrived from Britain—and if it isn't taught that way in our schools, it should be.

Two more things to say about the NW piece. First, I question that the American political system is "relative[ly] complex[]"; it seems quite straightforward to me, in broad outline, which is the level of generality whence the citizenship test views matters. Their lead example demonstrates how lame the point is: In contrast to Europe's easy-to-describe parliaments, they say, "we’re saddled with a nonproportional Senate…." How to describe the Senate? Well, "each state has two Senators." Done. Next question, m'lud? And while I agree that there is a tangle of jurisdictions at the local level in many states, and that there is an alphabet soup of federal agencies, you must realize that the citizenship test does not ask candidates to delineate the jurisdictions of the United States Maritime Administration versus that of the Federal Maritime Commission, or the interrelationship of the Office of the National Counterintelligence Executive with the FBI and CIA. Nor, to my knowledge, has anyone ever been asked, still less failed for want of the ability, to describe the job of the Office of the Comptroller of the Currency.

Second, and on the other hand, I do agree with this:

The current conflict over government spending illustrates the new dangers of ignorance. Every economist knows how to deal with the debt: cost-saving reforms to big-ticket entitlement programs; cuts to our bloated defense budget; and (if growth remains slow) tax reforms designed to refill our depleted revenue coffers. But poll after poll shows that voters have no clue what the budget actually looks like. A 2010 World Public Opinion survey found that Americans want to tackle deficits by cutting foreign aid from what they believe is the current level (27 percent of the budget) to a more prudent 13 percent. The real number is under 1 percent. A Jan. 25 CNN poll, meanwhile, discovered that even though 71 percent of voters want smaller government, vast majorities oppose cuts to Medicare (81 percent), Social Security (78 percent), and Medicaid (70 percent). Instead, they prefer to slash waste—a category that, in their fantasy world, seems to include 50 percent of spending, according to a 2009 Gallup poll. ¶ Needless to say, it’s impossible to balance the budget by listening to these people.

That's certainly true. But guess what also isn't on the citizenship test? A detailed examination of the candidate's understanding of the latest federal budget. It's important that debate proceed from an understanding of real numbers, but to sweep that under the broad header of civics seems like a reach. Nor is it as worrying, to my mind. The information is easily available, and when problems arise, they can be corrected, but when an interlocutor fundamentally misunderstands the nature and structure of our government, that is a much harder thing to refute.

In defense of President Obama's (eventual) military action in Libya

Since the UN's decision to take action on Libya, a number of liberal, libertarian, and centrist critics have said that American involvement without a declaration of war by Congress violates the Constitution, for only Congress has the power to declare war. The problem with these theories is their assumption that any military action constitutes "war."

The challenge here is that the original semantic meaning of the word "war" is extremely broad: Most founding-era dictionaries define it as the exercise of violence under sovereign command. See, e.g., Johnson's 1768; Sheridan's 1789. That definition is so broad, however (it would encompass police using billy-clubs against protesters), and the founding generation's experience of real war was so recent, that it's tough to imagine that the original understanding of the power to declare war encompassed literally any use of force—or even just any use of military force. Cf. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol. 61, 67 (1994) (“a dictionary … [is] a museum of words, an historical catalogue”). This supposition is confirmed by the manner in which it was used in the early Republic. When this country declared war on Great Britain in 1812, Congress declared "that war be, and hereby is declared to exist, between the United Kingdom … and the United States…." Quoted in Story's Commentaries, § 1169. What did they mean? It couldn't be that battle was joined at that very moment; "war" clearly meant something both more and less—that is, something distinct—than actual military action. And we know that in fact, the President can use military force—can exercise violence under sovereign command—without Congressional authorization in at least two instances: to repel military invasion of the United States, and when someone else declares war on us. See Prize Cases, 67 U.S. (2 Black) 635, 668 (1862).

Against this we may stack a long line of American military action under Presidential direction without a declaration of war. If it is true that maintaining a no fly zone over Libya (or, for that matter, assisting our allies in doing so, a distinction which may or may not matter) is making war, then President Reagan was a fortiori making war when he invaded Grenada, and a fortissimus President Truman made war in Korea. Come to think of it, I don't remember President Bush 41 seeking a declaration of war for our first action against Iraq or President Clinton seeking a declaration of war for our Kosovo intervention. This history pushes the theory that any use of military force constitutes "war" for Constitutional purposes almost to the breaking point.

Perhaps I'm speaking only for myself in this, but I think that while conservatives are open to tradition being corrected by text, we're instinctively reluctant to assume—and slow to conclude—that they clash. That what might look like tension between the two at face value actually is. (On the other hand, if that's true, why aren't most conservatives also Catholics or Orthodox? But I digress.) Consequently, when I look at these factors—when I see a Constitutional term which isn't as clear as it seems at first blush, and a long tradition of Presidents using the military without Congressional approval—I'm hesitant to say that what looks on the surface like tension between what Obama is doing and what Article I requires is in fact tension. I am not convinced that the Constitution requires Congress to act before the United States can.

I have not yet said anything of the war powers act. 50 U.S.C. § 1541 reads the Constitution broadly to require the "collective judgment of both the Congress and the President" before "the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations." If the Constitution doesn't confine the President, perhaps this does? No. The original meaning of "the executive power," bolstered by the commander-in-chief power, suggests to me that the President has the power to undertake military actions short of the original understanding of "war," and if this is so, the War Powers Act would unconstitutionally abridge that power—a point urged by everyone from scholars to Presidents since the day it passed. The executive power understood by the Framers included all aspects of waging war, see Story, Commentaries, § 1165, and the Framers chose to divide that power by giving the power to declare war to Congress. The implication must be that the remainder of that power remained in the executive.

Moreover, at risk of seeming blasé, I think the practical stakes are particularly low in this case. Congress is actively deliberating the President's budget for this year; if it is displeased by President Obama's actions, it has ample opportunity to make that known by defunding him with unusually immediate effect. Who knows: Maybe this will break the budget logjam, bringing together deficit hawks and anti-war Democrats to shut the government down? As Justice Story remarked, in Britain—where the king was far more free to use military force than is our President, the power of the purse "is found to be abundantly sufficient to protect the nation against any war against the sense of the nation, or any serious abuse of the power in modern times." Id., § 1486.

I doubt that law—the sum of our Constitution, tradition, and statutes—prevents the President from doing what is right in Libya; he should do so forthwith.

Weekend open thread

Maybe there will be developments in Libya, or maybe there's something you just want to talk about.

Distressing and sad

The untold story of Vladimir Kamarov. I couldn't bear to click on the audio link; reading was horrifying enough.

Electoral college again

Via, "National Popular Vote" urges me to tell my Indiana representatives to back a General Assembly bill that will change the way Indiana votes in the electoral college. They must not have heard: The representatives they have in mind have fled to Illinois! And even if they were doing their jobs, the only encouragement I would give them is to not pass this disastrous and dubious proposal.

The flaw in NPV's thinking is on stark display when it writes:

Because electoral votes are currently awarded to the candidate who gets the most popular votes inside each separate state, the second-place candidate has won the Presidency in 4 of our nation's 56 presidential elections. This is a 1 in 14 failure rate.

That's a non sequitur unless we are willing to join NPV in making the erroneous assumption that the college "fail[s]" if it doesn't choose the candidate with the most popular votes. It doesn't. The electoral college has arguably "failed" only three times: 1800 (after which the defect was remedied), 1824 (which involved third- and fourth-party candidates, something I disapprove of anyway), and 1876. And even if these can be characterized as failures (rather than, say, contingencies, see Federalist 68), the last one was over a century ago. So why is it that the left keeps coming back to this proposal? It's no mystery; Tully well-described both the answer and its flaws in 2006: "Because switching would give near-complete control of presidential elections to large urban areas, and eliminate the pesky influence of the rest of the nation. Duh. Which is what the Electoral College was designed to prevent, by providing extra "weight" to rural areas and smaller states." Chancellor Kent was prescient: "if ever the tranquility of this nation is to be disturbed, and its liberties endangered by a struggle for power, it will be upon this very subject of the choice of a President." 1 Commentaries 273-74.

Perhaps the most troubling aspect is that such proposals raise constitutional difficulties, and it is hard to see how they could be resolved in advance of a Presidential election, and it would presumably only be challenged when it mattered—which takes us into Bush v. Gore territory. Election rules should ideally be settled clearly before it is apparent which candidate they will favor, otherwise their adjudication after the fact will always be open to the kind of criticism attracted by Bush. And, of course, the higher the office, the higher the stakes, and so the higher the temperature/volume of the debate. This is all the worse in the case of the NPV proposals, because the Constitutional question isn't clear either way; I've said before that NPV agreements may violate the compact clause. At a minimum, an Atascadero State Hospital-style clear statement rule should be required to give Congress' approval, and even then, I think that such a move so fundamentally subversive of our constitutional order would still be unconstitutional (cf. U.S. Term Limits v. Thornton.) But it is entirely unclear what the Supreme Court would do. There is no directly-controlling or even roughly analogous case to which the court could point to justify its decision, and so any decision will ignite furious responses from partisans of the losing side. The result would therefore be a political and legal firestorm with the clock ticking louder every day.

If this foolish proposal is doing the rounds at the state capitol, I shall write to urge its defeat, and urge our readers to do likewise.

"His failure to bring rhetoric and action into alignment is becoming a metaphor for his entire presidency."

More from Eliot Spitzer.

Time is of the essence, as the possibility that the opposition forces will be entirely defeated becomes more real every day, and the efficacy of a no-fly zone, or any other military support, becomes more uncertain, and surely more costly in military terms.

The Arab League has passed a resolution supporting a no-fly zone. The French—the French—have recognized the opposition government as the legitimate government of Libya and have spoken in favor of military action in support of the opposition. England is supportive of a no-fly zone.

Yet the United States waits. And waits. Repeatedly President Obama has stated that Qaddafi has lost his legitimacy, and that he must go. President Obama did not reject intervention on the basis that sovereignty was inviolate, or that Libya was not a vital interest, or that civil war did not provide a basis for our intervention. Just the contrary; he has repeatedly stated that Qaddafi must go, and has put the credibility of his presidency behind the notion that Qaddafi will depart. Yet President Obama also states that we need international support for intervention. And he has defined that international support as a United Nations Security Council resolution. Nothing else will suffice.

Oh, and by the way, that U.N resolution we've been waiting for? They just passed it.

Religious tolerance and state interests

About a year ago, I noted a troubling religious freedom story in Canada. Requests by Muslim women who wear niqabs to be photographed by a female employee had customarily been granted, but Quebec's "growing resistance to the accommodation of minority religious practices" brought that to a halt. (The niqab, remember, is the full-face veil; it is entirely different from the hair-covering hijab.) In contrast to the famous Florida case where a woman was denied permission to wear a niqab in her drivers' license photograph (Freeman v. Department of Highway Safety and Motor Vehicles), I found Quebec's decision unreasonable. The province had imposed a burden on religious exercise without any kind of countervailing state interest. The women were not refusing to be photographed, and there was no indication that they would be unwilling to work with the province to ensure that they showed up at a time when a female photographer was available. Moreover, the women asking for accomodation were a drop in the bucket when compared to the total pool of applicants—ten of 118,000 in the preceding year—which eliminated any possibility for the state to claim hardship or undue burden on it from accommodation. Cf., in a concededly different context, 29 C.F.R. § 1605.2(c).

This story, however, presents a much harder case. The Supreme Court of Canada will hear an appeal from two men accused of sexually assaulting a female relative. When the case came to trial, the alleged victim insisted on wearing her niqab while testifying (which I assume that is her practice—that it's not a gimmick for the trial), and the defendants claim that this violated their right "to face their accuser in court." (That's the Globe & Mail's characterization of the right; I don't know if that's the actual language in Canada.)

At first blush, this looks more like Freeman. Set aside the confrontation issue for a minute. We traditionally assume that there is a strong interest in weighing the demeanor—including the facial expressions—of a witness, see Aaron Williams, The Veiled Truth: Can the Credibility of Testimony Given by a Niqab-Wearing Witness be Judged Without the Assistance of Facial Expressions?, 85 U. Detroit Mercy L. Rev. 273, 274 et seq. (2008), and the niqab obviously precludes that. There are, however, reasons to question that assumption, to think that such assesments may be unhelpful—indeed, positively misleading. Compare id., generally, with Mark Spottswood, Live Hearings and Paper Trials, 38 Fla. State U. L. Rev. (forthcoming 2011) (available at SSRN) (arguing that physical cues generally impair, not aid, credibility judgments). If Spottswood is right, the state interest in refusing witnesses leave to wear a niqab would seem to collapse.

And then there is the confrontation issue. I do not have an answer on this, and since there has been a lot of interesting discussion in the comments over the last few days, I'd like to invite comment. Because this is happening in Canada, the focus here isn't necessarily on the legal question as we would perceive it in the United States (U.S. Const., amdt. VI; Crawford v. Washington, 541 U.S. 36 (2004)), although that is obviously related. If the right to confrontation is guaranteed and would be violated by allowing a person to testify wearing a niqab (or any other headgear which obscures their appearance despite physical presence in the courtroom—say, a hockey mask or balaclava), the state interest in refusing witnesses leave to wear such headgear becomes, it would seem to me, all-but irresistible. But is that so? And is the right to confrontation violated? My guess is that the answer is that it does not violate the right to confrontation. While I said I'm not looking exclusively at American law, I should nevertheless note that cases like Ohio v. Roberts, Maryland v. Craig, Crawford, and Melendez-Diaz v. Massachusetts involve the absence of witnesses from the courtroom, not the obscuring of their identity; Coy v. Iowa, where a screen was placed between the defendant and his accusers, is closer but still different. I welcome comments.

Legislative paralysis?

There is some truth to Matt Yglesias' observations about the dificult conditions of state government imposed by certain populist conceits; I agree that short legislative sessions and small salaries fail to achieve their intended goals while imposing significant costs. But the elephant being ignored here is that the greater paralysis problem comes from Yglesias' side. As soon as a legislature acts in any way contrary to liberal dogma, there is a rush to the courthouse door in an attempt to thwart what the legislature has done. It happens every time an abortion bill is passed, it happens with any bills involving illegal aliens (to name but three, voter ID in Indiana, SB1070 in Arizona, and the Oklahoma litiation I wrote about here) and if Wisconsin Democrats haven't filed suit against a union bill which required herculean efforts by the legislature to enact, they soon will. The Supreme Court has tried to cut back on this (emphasizing severability in Ayotte and the limits of facial challenges in Carhart, Crawford, and Washington State Grange), but the success of these moves remain to be seen and they in any event do nothing to damp litigation in state courts. To be sure, this sometimes happens on the right—the ink was barely dry on Obamacare before the first complaints were being filed—because sometimes legislatures do overreach. But the problem seems far more prevalent on the left.

Neutral principles and criticisms of Justices Marshall and Thomas

Jami Floyd offers this post about Justice Thomas. Before we start, a brief reminder of neutral principles (see this post for more detail). Generally-speaking, to avoid lapsing into partisanship, one should consider specific situations through the lens of neutral principles: It's not necessarily a problem that a conclusion happens to fit your partisan needs, but it should rest on a principle you would be willing to follow in other situations to which it applies, even situations where it might hurt your interests. (For instance, tea partiers are big on the Constitution but many of them recoiled from Snyder v. Phelps.) Put another way, we must decide this case in this way because it is an instance of a more broader class of cases which are all properly decided in this way. (That's a paraphrase of Golding, Principled Decisionmaking and the Supreme Court, 63 Colum. L. Rev. 35, 40 (1963).)

The biggest problem with Floyd's piece—as with many critiques of Thomas, it seems to me—is its failure to adhere to neutral principles. Her criticisms weigh as heavily on several justices, including Justice Marshall, as they do on Thomas:

  • Was Thomas "too green" to be nominated to the Supreme Court after only a year on the court of appeal? If so, then so was Marshall, who hadn't served a day as a judge. The Solicitor General (Marshall's previous billet) is sometimes called the tenth justice, but only rhetorically, which brings us to the winsome Justice Kagan. If Thomas was too green, what on Earth can Floyd think of Kagan?
  • Had Thomas "not yet proven himself a jurisprudential thinker of the caliber required for service on the U.S. Supreme Court"? If not, neither had Marshall; being a skilled litigator on the right side of some important cases does not make one a heavy hitter as a jurisprudential thinker. We should also pause to consider the neutrality of the premise: Why would Floyd assert the importance of being a heavy-hitting jurisprude as a criterion in the first place, and would she be willing to apply it to other justices? After all, it doesn't just knock out Marshall; it would almost certainly have excluded liberal lions such as Hugo Black, William Douglas, Earl Warren, and William Brennan from service, a result I am sure she wouldn't accept. Indeed, some of the most lauded liberal justices stubbornly resisted getting lost in the weeds of heavy jurisprudential thinking; Justices Stevens and Souter, I think, regarded themselves as common law judges free of the encumbrances of grand jurisprudential theories.

At bottom, Floyd doesn't like Justice Thomas' jurisprudence. But there seems to be something more. Or rather, there's either something more or the bottom line is inartfully camouflaged. Look at this backhanded insinuation that Thomas hasn't carried his intellectual weight since his appointment:

Conservatives who would suggest that my criticism of Thomas is purely ideological should note that I have no similar criticism of Justice Antonin Scalia. … Not only was Scalia deserving of the post when nominated in 1986, after four years on the D.C. Circuit, but he has more than carried his intellectual weight ever since.

Justice Scalia isn't in the crosshairs here, so the compliments are really designed solely to highlight the contrast being drawn with Thomas. It's therefore not as clear as Floyd would have us believe that her criticisms aren't motivated in large part by ideology. Similarly, we are told that Thomas "clings" to the jurisprudential tag assigned to him, "strict constructionist." Is Thomas a strict constructionist? He doesn't call himself one, and it's hard to imagine how a strict constructionist could join the sovereign immunity cases—Alden, etc. Lay critics—and fans, for that matter—continue to label Scalia as a strict constructionist (an obsolete and faulty dog whistle for "conservative") although he isn't, so I must wonder if the same is true here. And even if Thomas is a strict constructionist, it seems bizarre to refer to someone as "clinging" to their judicial philosophy. No matter how little she might like Black's dissent in Griswold, would Floyd say that he clung staunchly to textualism?

So perhaps there is more here than pure disagreement. If we take Floyd at her word that her criticisms have nothing to do with ideological differences, what are they about? Senator Reid got into this same pickle a few years ago; he made the same rhetorical comparison to Scalia, but when pressed couldn't articulate anything coherent or accurate about why Thomas was more egregious. In Reid's case, it was obvious that he had a a priori opinion of Thomas that wasn't grounded on any real knowledge of the latter's work or that of the court. And what of Floyd? Reid may at least claim the excuse that he was speaking extemporaneously, but Floyd's written piece is presumptively a thought-out expression of her views. Yet the real basis for her difference with Thomas (if it is not in fact about race or ideology) is evasive. It seems to be this: Thomas holds "extrem[e]" views and is "ineffective." But these are strange arguments to make. If Floyd thinks Thomas' views are extreme and/or wrong, why would she want him to be more effective in advancing them? And while one can seriously argue that Thomas is more radical than Scalia, Floyd doesn't seem to have such arguments in mind. I get no sense that Floyd is reflecting concern for, say, Eastern Enterprises v. Apfel, Gonzales v. Raich, or Morse v. Fredrick, cases in which Thomas would go much further than Scalia. Instead, she simply fabricates an easily-disproved soundbite to support her claim that Thomas is too extreme:

While others may prefer to focus on the silence of the judge from the bench, the more salient point is the silence of his pen. Like the late Chief Justice Rehnquist before him, Chief Justice Roberts rarely assigns majority opinions to Thomas. Whether this is because of Thomas’ lack of intellectual heft (as his critics on the far left might like to assume) or because of his staunchly conservative views (my personal opinion) the result is the same: Thomas does not write for the majority very much because he cannot persuade a majority of justices to join him.

In the first instance, Floyd is wrong. (She seem to have uncritically adopted and then seriously distorted a far more modest point made by Mark Tushnet, viz. that for strategic reasons, Thomas got fewer assignments than he might have, see A Court Divided 85-86 (2006).) Chief Justice Rehnquist sought—and Chief Justice Roberts has followed suit—to assign each justice an equal number of majority opinions over the course of the term, see Rehnquist, The Supreme Court 260 (2d ed. 2004), and the numbers bear this out. Last term, OT 2009, the court issued 73 signed opinions for the court, so with nine justices, each should have written about eight. Thomas wrote eight. In OT 2008, the court issued 74 signed opinions for the court, so with nine justices, each should have written about eight. Thomas wrote nine. I could go on, but you get the point. Nor is Thomas assigned only unanimous opinions; for example, Magwood v. Patterson and 14 Penn Plaza v. Pyett were 5-4, and the lopsided 7-2 margin of Washington State Grange perhaps does an injustice to Scalia's dissent. [Update, 3/29/11: And this very term, Thomas writes for a 5-4 majority in Connick v. Thompson.]

Even if she was right, however, it is hard to see how it is Thomas fault that he is unable to persuade eight judges not of his choosing, each with strong views on the law of his position. In his 2006 commencement address at Georgetown, our fearless leader quoted from Justice Frankfurter's address Chief Justices I have Known, 39 Va. L. Ref. 883 (1953): the notion that Chief Justice Taft would soothe the court's troubled was "funny" to Frankfurter: "that Taft would just smile and then Holmes would say, 'Aye, aye, sir,' or Justice Van Devanter would say, 'For ten years I've been disagreeing with Holmes, but now that you've smiled at both of us, why we just love each other.'" And it seems much the same here. Does Floyd suppose that if Thomas would be no more extreme on the issue of abortion than Scalia, and would just smile more sweetly at Justice Ginsburg, that he could persuade her to join him more often in abortion cases? Just yesterday, I was quoting from Minn. GOP v. White: "even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Justices arrive on the Supreme Court with legal views that may not be amenable to being changed—and besides, wasn't one of Floyd's criticisms precisely that he wasn't a judicial thinker of Supreme Court caliber? The two criticisms are incoherent: a judge who has a carefully thought out position is even less likely to be able to "deal" with justices who do not share his or her views.

For all these reasons—the factual errors, the dubious points and insinuations, the ad hoc standard by which she judges Thomas without any indication that she would apply it neutrally—Floyd's piece fails. All that emerges clearly is that Floyd, like Senator Reid, has a strongly negative opinion of Thomas, whether in fact based on race or ideology, and that like Reid, she is uncomfortable just saying so. Instead of bouncing back and forth between various "top ten slams on Clarence Thomas," it would be more honest and more effective to frankly acknowledge the real source of her beef with Thomas—no matter what it is. If it is his extremism, make that point, and make it clearly.

Finally, almost as a postscript, I will add this. There are legitimate criticisms of Justice Thomas. One that I saw recently (sorry, I don't have a link handy) had some bite in it: Thomas' silence at oral argument, the authors argued, denies litigants the opportunity to address his concerns. That is a good criticism; twenty years ago, Judge Easterbrook wrote: "Just as parties may choose the terms of their contract, they may choose the subjects of their litigation. Resolving a case on a ground not presented denies the parties this autonomy and increases the risk that an uninformed opinion will impede rather than promote commerce. It is hard enough to navigate when the court sticks to questions fully ventilated by counsel." Frank Easterbrook, Afterword: On Being a Commercial Court, 65 Chi. Kent L. Rev. 877, 880 (1989), but cf. United States v. Skoien, 587 F.3d 803 (7th Cir. 2010) (en banc) (Sykes, J., dissenting). David Karp has a useful article applying this problem to Thomas, and Thomas himself sometimes recognizes that this can be a problem—see, e.g., Powell v. Nevada, 511 U.S. 79, 87 (1994) (Thomas, J., dissenting), or his brief concurrence in Carhart. I do not propose to resolve the issue, but I do note that critics like Floyd would do well to press on serious, concrete issues like these rather than glamorous rehashings of Anita Hill and amorphous (and, it would seem, disingenuous) worries about whether Thomas is effective enough in advancing his views.

Precious Context

Jon Chait nicely dispatches this bit of infantile nonsense from the Weekly Standard (HT: The Daily Dish):

Okay. We don't have any larger context for Obama's comment. But I think it's pretty clear that he was not expressing an actual desire to preside over a dictatorship. Nor is he expressing support for the Chinese regime. He's saying the Chinese regime suppresses dissent and his government doesn't.

Let me analogize this in a way that the Standard might understand: It would be much easier to be a lazy welfare queen, pulling down fat government checks for popping out babies, but some of us have to work for a living. That statement is the opposite of empathizing with a welfare recipient. Throwing in that bit about the Great Leap Forward is an especially comic touch -- it's not enough to smear Obama as a sympathizer with a brutal Chinese government, you have to stretch the attack to tie him in with the murder of 45 million people during the 1950s.

It's getting harder to distinguish that magazine from a cheap oppo research shop.

Indeed. The thing is, an increasing number of right-wingers have the idea fixed in the firmament of their minds like the Northern Star, that Obama really is the Marxist, freedom-hating, thuggish tyrant they say he is. This comment, ripped from its obvious context, is just fodder for that idea. If Obama were to say something like "freedom is hard," which I suspect is what he meant here, there'd be those who would doubtless say, "Well of course it is, for someone who doesn't believe in it."

For the record, this phenomenon is also prevalent on the Left, as you can no doubt find plenty of Lefties who will use any bit of fodder they can, to justify their preconceived notions of George Bush, Dick Cheney, Sarah Palin, the Tea Party, Scott Walker, etc.

The thing is, the Weekly Standard fancies itself a respectable magazine, but this infantile nonsense is the stuff of, well, a cheap oppo research shop. Dirt cheap.

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