Archive for the ‘Law’ Category

The Right to Homeschool

Sunday, March 9th, 2008

The Amish are a convenient group to have around. They are, by their very nature, non-threatening . The Amish are a small, pacifist religous denomination that generally wishes to be left alone to practice their simple lifestyle as dictated by their religious beliefs. Sometimes restrictions on religious practices as imposed by the state are born out of a fear of unconventional religious groups. Without this fear, the dispensation granted the Amish under the “free exercise” clause of the First Amendment can be applied to all religious groups.

In 1972, the Supreme Court in Wisconsin v. Yoder ruled that the Amish could pull their children from public schools after the age of 14 and continue their vocational education at home despite Wisconsin law requiring school attendance untill 16. The Court conceded that the state retains a legitimate interest insuring that children are appropriately educated. However, this interest must be balanced against, “fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children.”

The Amish had demonstrated in the court record that the Wisconsin requirement conflicted with the Amish’s religious precepts and that the exercise of these rights would not “not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.” In essence, given a conflict between religious practice and state regulation, reasonable accommodation should be made for religious practice.

We are now face with a new case in California involving homeschooling. According a State Court of Appeal, students must be enrolled in public schools “unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught.” Hence, interested parents who are not credentialed do not have the right to educate their children at home.

The facts of this case are somewhat different from the Wisconsin v. Yoder case. There is no specific religious group being discriminated against, but it is clear that one of the primary motivations of many homeschoolers is to raise children with values not always encouraged in public schools. To be consisten with Wisconsin v. Yoder, it would seem that the free exercise clause would protect homeschooling parents. Of course, the state as explained in Wisconsin v. Yoder does have a real interest in insuring that students adequately educated,, and the quality of teachers is certainly relevant to this question. However, empirical evidence shows that homeschooled students perform better than their public school counterparts. Hence, the real state interest appears to be to maintain the public school monopoly rather than the proper education of children.

It is not likely that this particular case will stand further legal scrutiny. After all, California Courts are notorious for getting it wrong. Moreover, the politics works in favor of homeschoolers. Even the majority of parents who elect to send their children to public schools, do not appreciate being told that they do not have discretion on how to educate their children.

Attuned to this popular sentiment, Republican Governor Arnold Schwarzenegger has said that “Parents should not be penalized for acting in the best interests of their children’s education… This outrageous ruling must be overturned by the courts, and if the courts don’t protect parents’ rights then, as elected officials, we will.” California could simply change the law to specifically allow homeschooling by parents.

The National Education Association and other lobbyists on behalf of the public school monopolies would be best not to fight the political inclination to allow home schooling. Homeschooling is always going to be the choice of only a small minority. It takes too much sacrifice on the part of modern families for homeschooling to seriously affect public school attendance. However, making too much of issue of this will cause unflattering attention to be paid to how poorly public schools do in comparison to parental amateurs.

Schechter Poultry

Sunday, February 17th, 2008

“ We are beginning to wipe out the line that divides the practical from the ideal; and in so doing we are fashioning an instrument of unimagined power for the establishment of a morally better world.” — Franklin D. Roosevelt, Second Inaugural Address, January 20, 1937.

There is a real human story behind the 1935 case of A. L. A. Schechter Poultry v. United States. The United States was in the grips of the Great Depression that despite, and perhaps because of, the active efforts of government refused to yield its grip. The story of the Schechter family is one symbolic part of a re-examination of the history of the Great Depression as told in The Forgotten Man by Amity Shlaes. Her thesis is that despite some salutary economic changes, the Depression lasted far longer than it needed to. Indeed, the Great Depression did not end until the economic stimulus of World War II. Human suffering of these “forgotten men” was the price paid for by the well-intentioned arrogance of those who believed they could manage the economy better from Washington.

The National Recovery Administration was a Depression Era agency that grew out of a conviction that the free markets were the cause of, or at least could not relieve the Great Depression. The NRA set prices and rules that dictated the detailed functioning of the economy. There was an earnest belief that private decisions had caused the Depression and it would require the economic supervision of wise men in the government to reverse it. Nothing empowers low-level administrative functionaries inclined to bullying more than self-righteousness and Schechter family was the unfortunate target.

Three Schechter brothers ran a kosher butcher shop counter to NRA regulations. Historically, the quality of poultry in many kosher butcher shops was ensured by the fact that customers could choose the chickens they wanted slaughtered, and customers invariably tried to select the healthiest and most robust chickens. The NRA wanted to end this practice to create greater uniformity in the poultry industry. However, without this and other more personal services, the Schechters could not compete against larger butcher shops.

The refusal of the Schechter brothers to conform brought the legal weight of the Federal government on the Brooklyn residents and the Schechters took their case to the courts. The case threatened to undermine the Constitutionality of a key symbol of government economic supervision and was taken seriously. The case quickly gained notoriety and the journalistic guns of the New Deal did not hesitate to train their formidable fire on the Schechters. Drew Pearson and Robert Allen were not above exploiting anti-Semitism in criticizing “Joseph [Schechter] and his Brethren” for the refusal to modify their traditional practices to conform to the NRA.

In a landmark case, the Supreme Court ultimately ruled against the government. In the Court’s view the legislature had unconstitutionality ceded its power to the executive branch. Further, the regulation of poultry practices in Brooklyn did not amount to the regulation of interstate commerce and was therefore not part of the enumerated powers granted the Federak government. Rulings like this were part of the reason that Roosevelt unsuccessfully tried to circumvent the Supreme Court by expanding its membership to allow him to select more justices.

It would be convenient if the message of the case is that the small guy can triumph in the courts even against the Federal government. This message is lost in a dangerous irony. Even after defeating the Roosevelt Administration and his intrusive minions who had attempted to regulate the Schechters out of business, the Schechter brothers continued to faithfully vote for Roosevelt. The Schechters did not link the actions of the NRA to Roosevelt himself. It seems that the sympathy engendered by Roosevelt’s fireside chats trumped even their family’s interest. Roosevelt successfully continued to blame private wealthy individuals for his failure to reverse the country’s economic fortunes.

His Grandfather’s Son

Saturday, November 24th, 2007

Clarence Thomas has proven to be such a tall lightening rod in storms born of Supreme Court controversies that reviews of Thomas’ autobiographical book My Grandfather’s Son: A Memoir are as much a measure of the political preferences of the reviewer as the are of the quality of the book. This reviewer confesses a sympathy for Judge Thomas’s jurisprudence and I was motivated by the sympathy to read the book.

No matter what one’s political philosophy, if one views the book as the odyssey of a single man the story is quite remarkable. Thomas was abandoned by his father at an early age, and his mother, unable to cope with raising Clarence and his brother Myers, deposited her children with Thomas’s maternal grandparents. The odds against this young African-American boy from Georgia were long and only reduced by the hard oversight of his grandfather Myers “Daddy” Anderson.

Anderson was by conventional standards poor, but was able set up his own oil delivery business and provide a home for his two grandsons. Despite the fact that Daddy oversaw a disciplined household his primary influence was by example not by application of discipline. Daddy pointedly said that he would never ask anything of Clarence that he would not ask of himself. Daddy influence was born of love, but he rarely displayed affection. Daddy knew how hard it would be for Thomas and his brother and did not want any familial softness to weaken the strength he was trying to instill. Although Thomas’ grandfather’s efforts succeeded, this lack of affection estranged Thomas from his grandfather. One of Thomas’s deepest regrets is that he was not ever able to come to a reconciliation with his grandfather during his grandfather life. It obvious to even the causal reader that the book represents a penance for this failure.

Thomas’s grandparents scrimped so he and his brother could have the academic and moral education afforded in a Catholic school. Indeed, for a time Thomas seriously considered the vocation of the priesthood. Thomas’s abandonment of this pursuit is one of the first disappointments that opened an unbridged void between Thomas and his grandfather. The elder Thomas expected people to be true to their comments and Thomas’s change of heart with regard to the priesthood represented failure.

Thomas graduated from the College of the Holy Cross with Honors in 1971 and from Yale Law School in 1974. Just these accomplishments places him at the extreme statistical end of what might expected from individuals born to his circumstances.

If one believes that Thomas is using this book to serve personal vanity or vindication, he did not do so in a particularly effective way. Thomas blames himself for the failure of his first marriage and pleads guilty to excessive alcohol consumption and financial irresponsibility. He was so much in debt that as young professional he frequently took advantage of the personal generosity of friends. There is much to admire in Thomas’s ascent from a child in the Jim Crow South to the US Supreme Court, but also much, as Thomas himself would agree, to dislike.

The New Yorker magazine asks “Why Clarance Thomas is So Angry?” Other reviews had commented on the Thomas anger. However, the question represents a misunderstanding the of the book. There is a difference between soul-destroying bitterness and righteous indignation. Was Frederick Douglas who railed against the injustice of slavery bitter or justifiably angry and the treatment of his race? In his biography, Thomas does not appear embittered, despite his vicious treatment by those opposed to him but rather resolute to overcome his critics by studious adherence to his judicial philosophy. It is a steadfastness taught to him by his grandfather.

To the extent there is anger, or least frustration, in Thomas it appears to be born of his treatment after Yale Law School. Because blacks were admitted to Yale via an affirmative action program, the Yale Law degree was not worth as much to a black person as to a white person. Thomas did well at Yale on his own merits, but affirmative action tainted his degree. Because of the program, law firms had little assurance about the quality of the credential as it applied to African-American graduates. Thomas was rightly resented the injustice of this situation.

Ultimately, Thomas was hired by a Missouri Attorney General, Republican John Danforth who would prove to be an important mentor. After service for Danforth, Thomas decided to help his family financially by working as a staff attorney for Monsanto Corporation. The work was remunerative, but not a sufficient intellectual challenge. Thomas took a pay cut and became a legislative assistant for Danforth , after Danforth was elected to the Senate. Thomas registered as a Republican and voted for Ronald Reagan 1980. Ultimately, Thomas became Chairman of the Equal Employment Opportunity Commission. He used his eight-year tenure to put the poorly-run organization on an even keel. It is here that he honed his civil rights judicial philosophy, came to the attention of senior Republicans in the Reagan and Bush Administrations, and hired Anita Thomas on the basis of a recommendation of a friend.

Impressed, President George H. W. Bush appointed Thomas to the United States Court of Appeals for the District of Columbia Circuit in 1990. When Justice Thurgood Marshall retired in 1991, President nominated Thomas to fill Marshall’s place on the Court.

The saga of Thomas’s contentious confirmation is now almost legend. Despite a full blown “Borking” of Thomas, it appeared that Thomas’s confirmation would slide through. Then Anita Hill happened. Anita Hill claimed that Thomas had sexually harassed her. Books have been written about the charges and Thomas’s defense. In retrospect, the arguments seem quaint after the charges against President Bill Clinton which we know now to be true. The fact that feminists groups did not rally against Clinton the same way they did against Thoma provides evidence that Thomas’s real transgression was not sexual harassment but his possibility that the would to vote to uphold the Roe v. Wade abortion decision.

Thomas did not take the opportunity of his biography to focus on Hill’s charges. Actually, she occupies a fairly minor role in his book as she has turned out to be in subsequent years. Thomas reserves his indignation for the others that used Hill. The Liberal establishment opposed Thomas because of his Originalist jurisprudence and because as a black American he defied the conventional wisdom about how a black man ought to think. To keep Thomas off the Supreme Court it was not enough to say that we disagree with him, because at least at that time Presidents were usually granted their judicial choices. They had to dig into is personal life and find enough dirt to destroy him personally. There is no tactic not justified to protect the abortion decision. These people continue to poison the political atmosphere. It was Thomas’s spirited defense, when he compared his treatment to a “high-tech lynching” that played on the old canard of uncontrolled black make sexuality, that turned the tide and insured his confirmation, albeit by a slender majority.

The ultimate irony is that although Thomas had a Conservative view of constitutional interpretation there was no guarantee that he would become the stalwart pillar of Originalist jurisprudence that he did. However, the politicization of his confirmation made clear to Thomas that the Court had strayed too far into the political decisions reserved for Congress and the President. Judicial appointments only become continuously controversial when the Courts have usurped enough power from the other two branches the the confirmation process becomes the only place for the political process to play out. If the Courts had allowed abortion liberalization to happen legislatively, which was occurring at the time of the Roe v. Wade decision, the confirmation process now would not be so contentious and ugly.

On the Use of Extreme Interrogation Techniques

Sunday, November 4th, 2007

When a policeman shoots a person brandishing a weapon in a threatening manner at at third party, we recognize that to protect innocent life, it may be necessary to take a guilty one. There are pacifists who will argue that taking a life is never justified, but by and large, most have concluded that it is always regrettable, but sometimes necessary. Indeed, protection of the innocent is not just a preference, but often a moral responsibility.

In general, the world is a lawless place and we grant governmental officials the authority to act violently in our behalf. Of course, the use of force is governed by laws and protocols. Some people believe that as Commander-in-Chief, the President is granted broad latitude in application of force. In an interview with Chris Wallace on Fox News, former President Clinton boasted about his efforts to pursue the chief terrorist Osama Bin Laden,

“What did I do? What did I do? I worked hard to try to kill him. I authorized a finding for the CIA to kill him. We contracted with people to kill him. I got closer to killing him than anybody has gotten since.”

In hindsight the killing of Bin Laden would have been salutary and perhaps even averted the deaths of over 3,000 people on 9/11. Hence, no one complained about Clinton’s implicit assertion that the president has the inherent authority, without judicial finding or legislative action, to order the killing of a person, he judges, poses a severe threat to the citizens of the United States. This is quite a claim and seems to have passed by unremarked upon.

The immediate question before the US Senate is whether to approve the nomination of US District Court Judge Michael B. Mukasey for US Attorney General. There is no doubt about Judge Mukasey’s understanding of the law, experience, and judicial temperament and his confirmation by the Senate seemed assured. This easy ride ended when Mukasey was equivocal on the use of waterboarding to extract information from captured terrorists. Waterboarding is a technique were the person being interrogated is not physically harmed, but made to feel that he or she is drowning. By all accounts, it is very effective is extracting information from reluctant parties. By international definition, torture also includes severe mental suffering. Despite the fact that journalists for background and US military special forces in training have undergone waterboarding, many consider waterboarding to be torture. For our purposes here, we can categorize waterboarding as torture. The moral (though perhaps not legal) arguments below are independent on how waterboarding is categorized. The legal case may affected by this categorization and some argue that waterboarding is not sufficiently “severe” to be defined as torture.

Mukasey did point out that waterboarding is prohibited to the military for captured military prisoners, but was unwilling to draw a more categorical prohibition. In his written response to the Senate, Mukasey wrote that actions like waterboarding may “seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans.” However, “hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.” In short, the judge was unwilling claim that waterboarding would be inappropriate under any circumstance. Indeed, Congress when given the chance could not pass a categorical prohibition against waterboardimg.

The classic argument for use of extreme interrogation techniques is the “ticking atom bomb scenario. ” Imagine that there is an atom bomb about to go off, potentially killing many thousands of people, and someone in custody has information that could prevent the bomb from going off. Virtually everyone concedes that aggressive techniques – even torture – would not only be justified but morally required.

Just as Judge Mukasey opined, hypotheticals are not appropriate to draw general conclusions from. The atomic bomb scenario is unlikely and is just an extreme example to to illicit the concession that there might be times when torture would be necessary.

There are reports that Khalid Sheikh Mohammed, the high-level Al Qaeda leader was waterboarded and revealed information crucial to breaking up terrorists plots. If this is indeed the case, it would be no wonder that Administration authorities are reluctant to relinquish this tool.

The real question is how to make reasonable accommodation with situations in extremis. Do we prohibit extreme forms of interrogation and oblige our leaders to break the law or do we formally recognize that rare necessity of such techniques?

Those in favor of the latter position plausibility argue that the forcing our leaders to break the law would make reticent to use extreme interrogation techniques unless absolutely necessary. However, forcing people to break the law to do what they believe is necessary breeds disrespect for the law and guarantees that each decision will be made with short time for consideration. By contrast, if the use of the extreme interrogation techniques were regularized it would allow us to think through potential situations. Regularizing the circumstances for use of these techniques allow us to prescribe criteria for appropriate application systematically rather than in an ad hoc manner during a crisis.

When an officer uses a gun to protect citizens, he has been trained in the rules for use of lethal force and knows how he will be judged later. We would not want to prohibit use of lethal force and force the law enforcement officer to break the law to save a life. Why would we want the President to have to break the law he is sworn to uphold? If Congress is truly concerned about the use of torture,or aggressive interrogation if you prefer, they would serve us better if the held hearings on when extreme interrogation techniques ought to be legal and appropriate. How extreme can they be? They could provide legal and moral guidelines useful for this and future administrations.

Columbia University and Free Speech

Sunday, September 23rd, 2007

Universities, if no other places, ought to be free speech free-fire zones where peacefully conducted speech is accommodated and encouraged. Persuasiveness and cogency in the “free marketplace of ideas” is the arbiter of ideas not mere assertion of authority. Indeed, it is only by testing and honing our ideas against others that we can be assured that we have not blundered into unrecognized error. Ideas ought not be prevented a hearing because some find them offensive or even evil.

This is this context in which Columbia University argues the reasonableness of inviting Iranian President Ahmadinejad, as part of the “Columbia Distinquished Lecture Series,” to speak at Columbia. Ahmadinejad actions and ideals are certainly controversial. He has spent the last year suppressing free speech of professors at Iranian universities, denying the Holocaust, threatening the existence of Israel, and pursued nuclear weapons in defiance of its signature on the Nuclear Non-Proliferation Treaty.

It is reasonable to argue that this particular invitation is more than just a concession to the disciplines of free speech. There is an implied university endorsement since the invitation is part of a distinguished lecture series. However, this little inconsistency could be overlooked if Columbia had a reputation and long history of open free speech. Unfortunately, Columbia University’s history is different. The non-partisan Foundation for Individual Rights in Education (FIRE) rates the university stats as “red” where “ at least one policy … both clearly and substantially restricts freedom of speech.” Fire reports that:

1) Columbia University requires an ideological litmus for its students in its Education School. Students must affirm that “social inequalities are often produced and perpetuated through systematic discrimination and justified by societal ideology of merit, social mobility, and individual responsibility.”

2) Columbia University’s Law School refrained from punishing a law professor for the phrasing of a hypothetical question on a law examination only after FIRE’s intervention. The law school’s instinctive reaction is, nonetheless, instructive. It took outsiders to point out that the punishment would have violated principles of academic freedom.

3) The university punished the hockey team for using the word “pussy” in a recruitment flier. The silly argument reduced to whether the word as offensive to women or whether it was reference to the university’s lion mascot.

Columbia University was also the site where a presentation by the Minutemen (invited by Columbia College Republicans), a movement to enforce US immigration laws, ended when some Columbia students stormed the stage to silence the speakers. Though Lee Bollinger, the President of Columbia University, decried the incident and issued some warnings and punishments to some of the students involved, many believe the censures were not proportionate to the gravity of the offense. Indeed, the censures will be removed from the transcripts of offending students upon graduation. This rebuke does not even reach the threat level of third grade teachers who would warn students that bad behavior would end up on “your permanent record.” Rather, the punishments from Columbia University are not likely to deter similar incidents in the future.

At the same time that that the President of an Iranian government that is providing equipment to kill young American soldiers in Iraq, Columbia prohibits ROTC on campus. Columbia does not appear equally hospitable to all ideas.

Columbia may argue that the invitation to President Ahmadinejad is a logical consequence of their commitment to free speech. However, given the University’s efforts to suppress ideas they do not agree with, the university should forgive us if many are not entirely persuaded.

What Sort of Despotism Democracies Have to Fear

Sunday, September 9th, 2007

“Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?

Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things;it has predisposed men to endure them and often to look on them as benefits.” — Alexis De Tocqueville, Democracy in America, Chapter 6, What Sort of Despotism Democracies Have to Fear.

It would be convenient if tyrants would announce their presence with snarly demeanors, black hats, or curly dark mustaches. Unfortunately, tyranny insinuates itself in democracies sweetly wrapped in kindness and genuine good intentions. In order to institute plans for the good of all, certain actions must be circumscribed and other duties compelled for the good of all. De Tocqueville recognized this inherent weakness in democracies. It is just as easy to find oneself ruled by a single tyrant or the tyranny of the majority. Our Founding Fathers hoped that in large democracies it might be less likely that a permanent majority could maintain itself and that competing“factions” would check each other.

One of the most recent examples of this danger of soft despotism came when Democratic presidential candidate John Edwards’s explained his proposed national medical plan. We can thank Edwards for carrying through the logic of his advocacy for socialized medicine. In an effort to keep the cost of his plan lower, Edwards is going to demand preventive care. His program “requires hat everybody be covered. It requires that everybody get preventive care .. .You have to go in and be checked and make sure that you are OK.” Besides requiring that everyone get regular check ups, all woman would require regular mammograms.”

Now such actions may appropriate for reasonable people to decide to do, requiring them under the threat of penalty is intrusive. If one carries out Edwards’s logic to its ultimate conclusion, government could leverage medical care to controls over a larger variety of heretofore personal activities. Controlling diet, exercise routines, risky behavior such as certain sports, some sort of sexual behavior, or decisions when to have children, could all fall into activities liable to regulation by a government desperately trying to hold down costs. Government programs are notoriously inefficient and the more government controls medical care the more greater the need to institute cost controls.

The internal logic of personal liberty is that individuals are free to do whatever they want as long as their actions are private, not affecting others. As soon as we socialize the costs of medicine, there are no private actions. Virtually any activity can affect health costs and are thus legitimate avenues for regulations. As the scope of private action shrinks so does freedom.

What is worse, as De Tocqueville recognized, as individuals cede personal decisions to other authorities, they fall out of the habits of individual autonomy. They begin to look for guidance and direction, rather than chafe against supervision. They transform from robust individuals to a herd of sheep deferential to their shepherd government.

Jose Padilla’s Conviction

Sunday, August 19th, 2007

One could almost feel the collective, mournful groan of the Left when Jose Padilla was convicted by a jury of “of conspiracy to murder, kidnap and maim individuals in a foreign country, conspiracy to provide material support to terrorists, and providing material support to terrorists.” Padilla’s complex legal case had come to symbolize for the Left what they view as lawlessness by the Bush Administration in its pursuit of terrorists. Given this symbolism, there is an extreme element of the Left that has demonstrated, as in the case of Alger Hiss, that it is possible for some to cling to protestations of innocence in the face of persuasive evidence to the contrary.

Padilla’s case is legally interesting because Padilla is an American citizen who was arrested on May 8, 2002 at O’Hare Airport, a port of entry, not quite in the United States. Should Padilla be treated conventionally as a criminal or as an combatant at war with the US? Was Padilla engaged in war against the US? Was he captured outside or inside the United States? On June 9, 2002, President Bush declared Padilla an “illegal enemy combatant” and the Administration held him in military custody on this basis. It is reasonable to ask what rights does a person so designated have to challenge the designation.

Rather than test the authority of the President in this case at the Supreme Court, the Administration formerly charged Padilla in civilian court on November 22, 2005 with the crimes of which he was ultimately convicted. Padilla’s attorneys fruitlessly tried to argue that Padilla’s incarceration had so damaged Padilla mentally that he was not fit to stand trial. The judge ruled otherwise perhaps convinced of the disingeniousness of the psychiatrists hired by Padilla’s defense. Dr. Angela Hegart testified that Padilla was unfit to stand trial because he suffered from post-traumatic stress disorder. She was forced to concede during cross examination that Padilla had scored a zero on Hegarty’s post-traumatic stress disorder test and that this test result was omitted from her report to the court.

Padilla’s guilt does not demonstrate the legitimacy of the illegal-combatant-doctrine that he was originally held under. That question is orthogonal to the question of Padilla’s specific guilt or innocence. The Left should have been satisfied when Padilla was charged in a civilian court. However, it would have been rhetorically convenient for some on the Left if Padilla had been acquitted. It would have been evidence that the Bush Administration had not exercised its disputed authority in good faith. In this case, the Administration judgment about Padilla has been vindicated if not the legal doctrine under which he was originally held. It was a tactical mistake for those opposed to doctrine that the commander-in-chief can designate a person as an illegal combatant to tie the case so closely to the deeply flawed Padilla.

Cutting Short Bad Court Decisions

Sunday, July 8th, 2007

This week, in a 2-1 decision, the 6th District Court ruled that the American Civil Liberties Union (ACLU) and fellow litigants did not have standing to sue the National Security Agency over the Terrorist Surveillance Program or (TSP). Under the terms of the program, President George Bush had authorized the use of warrantless wiretaps, when one end of the communications is in a foreign country. It is clear that NSA does not need a judge-issued warrant for eavesdropping on international conversations. It is also clear that if the wiretapping involves people entirely within this country, the government needs to seek a warrant. It is certainly less clear what the limits are on executive authority in this in between situation.

There had been some mixed limited opinion at the District Court level on this issue, but there was no definitive legal judgment on the matter at the Supreme Court level. This case potentially can provide an important opportunity to plumb new depths of Constitutional law on an issue that is likely to play an important role in the War on Terror for decades. Instead, District Court Judge Anna Diggs Taylor used it for polemical advantage and little legal reasoning. Taylor not only ruled that that the litigants had what many conceded was questionable standing to sue, but that the TSP violated the First Amendment (for its alleged chilling effect on communication) and the Fourth Amendment’s prohibition against unreasonable search. She then issued an immediate injunction banning the communications intercepts at issue.

One might have had a hint as to what the 6th District decision would decision ultimately be when they quickly issued a stay of the judge’s order. The case became more complex when it turned out, that Taylor served on the board of a nonprofit organization that made regular grants to the ACLU. Judge Taylor was probably not violating the law by not recusing herself from the case, but it would have improved judicial transparency and her credibility if she had addressed the issue directly.

The initial press reports on the decision focused on the number of pages in the decision as if pages are a unit of measure for clarity and wisdom. After further consideration, most have now concluded that Taylor’s decision was poorly reasoned. Even the Washington Post, that is sympathetic with the notion that the TSP exceeds Presidential authority, had to concede that the judge’s decision was “neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard hitting.”

The 6th District Court overruled Taylor in a minimalist decision. It concluded that since the litigants could not prove that any of their communications had been intercepted, they could not prove that TSP had done them any harm. The New York Times, in the third paragraph of their reporting of the 6th District Court’s decision, dutifully repeat the ACLU’s argument pointing out that the secrecy of the program it is own protection. Since, no one knows if they have been wiretapped no one could ever have standing to sue.

The Constitutional system does have a way to deal with these issues. It is through the political process and legislative representatives that these broad issues are dealt with. The 6th District Court of Appeals cited the US Supreme Court in United States v. Richardson:

“It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. Any other conclusion would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts. The Constitution created a representative Government with the representatives directly responsible to their constituents at stated periods of two, four, and six years; that the Constitution does not afford a judicial remedy does not, of course, completely disable the citizen who is not satisfied with the `ground rules’ established by the Congress for reporting expenditures of the Executive Branch.”

Ultimately, it is the inability to remember this that condemned Jude Taylor to yield to the temptation of using the law for partisan political ends. With this 6th District Court decision, reason and judicial temperance have now prevailed.

Commuting Libby’s Sentence

Monday, July 2nd, 2007

The President has just commuted the jail sentence of “Scooter” Libby for his conviction of perjury and obstruction of justice in the case of the leak of Valerie Plame’s name. This decision is consistent with the recommendation made here a few weeks ago. See Unforunate Guilt

A Victory for the Right and the First Amendment

Sunday, July 1st, 2007

In 2004, the Wisconsin Right to Life (WRTL) organization wanted to run a television ad that criticized the fact that some Senators were using “filibuster delay tactics” to prevent federal judicial nominees from coming to an up-or-down vote. The ad concluded with the suggestion to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.” This ad was to run during the 30 day period before a federal election. The Bipartisan Campaign Reform Act (BCRA) proscribed ads that refer to a candidate within this period.

Recognizing the potential problem, WRTL applied for injunctive relief claiming its First Amendment rights were being violated. The relief was denied, but ultimately the WRTL was able to present its case before the US Supreme Court.

This was not the first time that BCRA had been challenged. In McConnell v. FEC, decided when Justice Sandra Day O’Connor represented a swing vote on the Court, the Court allowed the prohibition against “electioneering” ads or their “functional equivalent.” The Court believed that the mention of a candidate’s name made any ad the functional equivalent of electioneering and not “expressed advocacy” of a position. Expressed advocacy is still permitted.

In WRTL v. FEC , the Court led by Chief Justice John Roberts, narrowed the McConnell decision. It found in favor of WRTL, arguing that the strict scrutiny required in First Amendment cases was not met by the “functional equivalence” test. Any doubt must be decided in favor of free speech rights. An ad could be considered to be engaged in electioneering “only if the ad is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate.”

Although the Court saw no reason offered by this particular case to re-examine McConnell in full, it suggested that it might do so sometime in the future. In Roberts’ concluding paragraph of the majority decision in WRTL v. FEC, he argued that the “Framers’ actual words put these cases in proper perspective…when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban — the issue we do have to decide — we give the benefit of the doubt to speech, not censorship. The First Amendment’s command that `Congress shall make no law … abridging the freedom of speech’ demands at least that.”

Presidents have legacies that last far beyond their term. President Ronald Reagan had many positive legacies, not the least of which was the end of the Cold War. However, on the nomination of Justice Sandra Day O’Connor, whose unfathomable jurisprudence often provided the decisive difference between a Court that protected the Constitution and one that thought law was malleable to the tastes of justices, Reagan erred. Through the appointment of Chief Justice John Roberts, who replaced Conservative Judge William Rehnquist and Justice Samuel Alito who assumed O’Conner’s seat, President George Bush has taken important steps to mitigating that error. It should be remembered that Bush had to be persuaded by the Conservative base that his first choice, Harriet Miers, did not have the appropriate judicial experience for the Court. She might have voted on most issues parallel to Alito, but her participation on the Court would have been far more of a crap shoot than Alito’s. We are now seeing the delicious fruits of a real movement toward to the Right.