Frank’s Case Book

Although there are necessary limits to popular sovereignty (the Bill Rights is just one list of such constraints), as a general rule, the more fearful any organization or group is of popular sovereignty the less likely it enjoys the full assent of the governed. Many would argue that the requirement that someone join a union in order to work is a violation of the First Amendment’s guarantee of freedom of association. Unions argue that such requirements are necessary because even workers who do not join the union benefit from the collective bargaining carried on by unions on behalf of their membership. It is on this premise that union membership requirements have been maintained.

However, collective bargaining is not the only function of unions. Unions also engage in political advocacy and they use union dues to do so. Some people who were forced to pay dues despite not being union members, particularly those who may disagree with a union’s political positions, were more than a little annoyed that their money is being used in such ways. In 1976, 20 workers who chose not to become members of the Communications Workers of America brought suit against the union. The case took a long time to wind its way up to the US Supreme Court, but in 1988 in Communications Workers v. Beck the US Supreme Court held that the law “does not permit a union, over the objections of dues-paying nonmember employees, to expend funds collected from them on activities unrelated to collective-bargaining activities.” In other words, unions could collect dues from nonmembers for collective bargaining, but it violated the First Amendment to compel these workers to subsidize union political activities.

In 1992 (a little late considering that the Beck decision was rendered in 1988) the first President George Bush issued an executive order which required federal contractors to make workers aware of their rights under the Beck decision. When President Bill Clinton came to office he rescinded Bush’s executive making it more difficult for workers to appreciate their rights. In 2001 George W. Bush signed an executive again requiring federal contractors to inform their workers of their rights. If a Democrat is elected in 2008, the executive order will likely again be rescinded and once again workers rights will be whittled away through obscurity. This coupled with an effort earlier this year by House Democrats to eliminate secret ballots in union elections is a clear indication of how much unions and their political allies respect workers.

Unions are anything if not tenacious. In the state of Washington, a voter-approved initiative required state employee unions to obtain a nonmember’s explicit and affirmative consent to use union funds collected under the auspices of collective bargaining for electioneering. The unions claimed they met this requirement by sending a letter and assuming that no response implied affirmative consent. In a 9-0, the US Supreme court last week in Davenport et al. v. Washington Education Association declined to subscribe to such sophistry.

In all these cases, one has to wonder why unions that are supposed to act on behalf of workers are so ingenious a finding ways keep workers unaware workers of their political rights.

“He is also to be authorized to grant `reprieves and pardons for offenses against the United States, except in cases of impeachment’ Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.” — Alexander Hamilton, Federalist No. 74, March 25, 1788.

The question is before us is whether the President should pardon or grant a reprieve to Lewis “Scooter” Libby. Libby was chief of staff to Vice-President Dick Cheney. Libby was recently convicted of perjury and obstruction of justice for his grand jury testimony and interviews with federal investigators surrounding the Valerie Plame affair.

Valerie Plame was a CIA employee who suggested that her husband Joseph Wilson be dispatched to Africa to check on reports of Iraqi interest in purchasing uranium. Despite the fact that he reported such interest in his oral report to the CIA, Wilson criticized President Bush’s assertion that Iraq was seeking uranium. The criticism was expressed in an op-ed piece in the New York Times. Of course, these claims were disputed by the Administration. During the that period, the fact the Valerie Plame worked for the CIA was revealed to and reported, almost incidentally, in a column by Robert Novak.

The revelation was first thought to be a scandal since revealing the name of covert CIA agent is illegal. In response to this Special Counsel Patrick Fitzgerald was tasked with finding out whether who revealed her name and to prosecute any guilty parties. There were a few cool heads at the time. Victoria Toensing, one of the lawyers who wrote the legislation, argued under the terms of the legislation Valerie Plame was not a covert agent and the release of her name was no crime. This was a conclusion that Fitzgerald implicitly reached because he never charged anyone with this crime.

It is reasonable to question the judgment of the prosecutor in spending time trolling for perjury submerged in inconsistencies in testimony. Even before Fitzgerald was named Special Counsel, federal agents had determined that Richard Armitage, Deputy Secretary of State, was the source of the fact the Valerie Plame helped secure the Africa trip to Africa for her husband. Apparently, Armitage was just gossiping. At the point that Fitzgerald knew the source of the leak and the fact that the leak was not a crime, the investigation should have ended. A conventional prosecutor with many crimes to pursue probably would have moved on. A special counselor does not look good coming up empty handed so there is always the temptation for prosecutor indiscretion.

Nonetheless, even if we posit that the Special Counsel acted improperly in using the grand jury to create crimes where none existed, this does not excuse perjury on the part of Libby or anyone else. Libby was convicted by a jury of his peers, so must assume his guilt at this point. Conservatives who argued that President Clinton’s perjury was unacceptable cannot not now turn around and excuse perjury on the part of Libby.

However, the sentence meted out to Libby of 30 months in jail and a $250,000 fine seems excessive given the context. Clinton plea bargained a deal with an agreement not to practice law for five years (probably not his intention anyways) and only $25,000 fine. Clinton’s National Security Advisor Sandy Berger, deliberately absconded with highly secret documents and was sentenced to community service and to a $50,000 fine.

President Bush should reduce Libby’s sentence to something similar to Berger’s sentence and not grant a pardon. Libby still maintains his innocence and pursuing appeals. This reprieve would keep Libby out of jail and permit him to still pursue his appeal.

Perhaps we should thank House Speaker Nancy Pelosi for yet another lesson in Constitutional law. A couple of weeks ago, she and a number of other representatives (including some Republicans) traveled to Syria to speak with Bashar al-Assad, the country’s strongman ruler. They traveled to Syria despite a request from President Bush that she and the other representatives not visit with Syria. President Bush was trying to isolate the Syrian government diplomatically.

Pelosi claims she was not there to negotiate, but was only on a fact-finding mission. This assertion is belied by the statements by Representative Tom Lantos (D-CA) who accompanied her and how foreign governments, particular the Syrians, treated her visit. Whatever the merits or difficulties associated with Speaker Pelosi’s foreign adventures, the question as to the prerogatives and limits of Congressmen and Senators with regard to foreign policy lingers.

The Constitution grants only indirect power, through the budget, to the House of Representatives. The President can negotiate treaties, but these must be ratified by a super majority (2/3) of the Senate. In 1798, Dr. George Logan, a state legislator from Pennsylvania, directly spoke with the French government. The Federalist Party in control of Congress was upset with his meddling and passed the “Logan Act.” The act is still in force today and specifically holds,

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”

Despite this rather categorical admonition, Logan later traveled to England as a private citizen to help stop the War of 1812. The mission failed, but Logan managed to stay out of jail as he was not prosecuted under the act. Prosecutions under this act have continued to be rare. According to Wikipedia, there is only one know indictment under the act.

As a practical matter it would difficult for any Congress to repeal the Logan Act. To maintain his or her foreign policy prerogatives, any president is likely to veto the repeal. While there is little question that the Logan Act applies to private citizens, does it prevent Congressmen for engaging in negotiations? Can representatives and senators negotiate with foreign governments on their own? Apparently Congress believes they are not- permitted to negotiate. According the House Committee on Standards of Official Conduct:

“Members should further be aware of a permanent federal statutory restriction that prohibits any U.S. citizen acting without authority of the United States from: Directly or indirectly commencing or carrying on any correspondence or intercourse with any foreign government, or any officer or agent thereof, with the intent to influence the measures or conduct of any foreign government or of any officer or agent thereof in relation to any disputes or controversies with the United States, or to defeat the measures of the United State.”

This is wording is pulled directly from the Logan Act.

The Courts have had little opportunity to rule on the limits of Congressional authority with relation to negotiation with foreign powers, but when they have they have unequivocally concluded that only the President is empowered to negotiate for the United States. The Constitution has delegated specific powers to the different branches of government. These enumerated powers are augmented by “implied” powers necessary to carry out the enumerated powers. The courts have concluded that in order to carry out his authority to negotiate, the President’s power to negotiate must be exclusive. In United States v. Curtiss-Wright Export, the majority concluded in 1936 that,

“The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success…. [The President] makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”

The Court even cited the fourth Chief Justice of the United States John Marshall, who while a U.S. Representative argued that “’The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

The Constitution operates most smoothly when the different branches respect their constitutional and traditional limitations and do not try to brush up against the limits of power.

If Speaker Pelosi rules from her head she will avoid such stretches of Congressional authority in the future. If she rules from her passions or bends to the more extreme elements of her party, she will ignore legitimate constraints on Congressional power.

We have just finished pointing out the inconsistency of Left’s hand-wringing on issues of the treatment of illegal combatants captured during the War and Terror, while ignoring the Ninth Circuit Court of Appeal’s willingness to grant little weight to the First Amendment’s freedom of religion. Now we see some Democrats ignoring their better angels in a fit a political rage with regard to the issue of the Bush Administration’s dismissal of eight federal district attorneys.

We can reserve the discussion of the wisdom and ethics of the dismissal of the district attorneys until later. What is disconcerting now is the reaction of some Democrats to the invocation by Monica Goodling, Attorney General Alberto Gonzales liaison to the White House, of her Fifth Amendment rights not to testify before Congress.

Judiciary Committee Chairman Patrick Leahy (D-VT) remarked that “The American people are left to wonder what conduct is at the base of Ms. Goodling’s concern that she may incriminate herself in connection with criminal charges if she appears before the committee under oath.” This is eerily reminiscent of Senator Joseph McCarthy’s suggestion that those who did not testify before his committe had something to hide and were likely “Fifth Amendment Communists.”

The American are free to make privately ant judgment they wish based on Monica Goodling’s invocation of her Fifth Amendment rights. However, it is irresponsible for a high government officials to suggest that use of the Fifth Amendment suggests guilt. Given this atmosphere, it not unreasonable for anyone not to be apprehensive about testifying before Leahy’s committee that appears more anxious to hang someone politically than to determine facts.

“What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us.” — Frederick Douglass as quoted by Justice Clarence Thomas in his dissent of Grutter v. Bollinger.

The legacy of Supreme Court justices live long after they retire or otherwise leave the Court. In 2003, Justice Sandra Day O’Connor wrote the opinion for and provided the decisive vote in Grutter v. Bollinger. Despite the plain words of the 14th Amendment to the US Constitution and subsequent civil rights legislation, the Court ruled that the use of race, as one of many criteria, for use in admissions decisions for the University of Michigan Law School is constitutional. However, given the pernicious nature of such use, they suggested that perhaps it could only be used for 25 years. We hope that that will end the legacy of this particular O’Connor decision.

Make no mistake about it. The decision was purely ad hoc, conjured in support of a policy not legal position of a majority of the Court. Race was not a minor issue in admissions decisions. If race were not in many cases dispositive, neither side of the case would have perused the issue all the way to the Supreme Court.

Now the people have spoken. In between the dark storm clouds that darkened the last the mid-term election, Michigan voters shown a bright ray of sunlight. Rejecting desperate pleas from virtually the entire Michigan political establishment, both Democratic and Republican, the voters displayed uncommon sense and courage and overwhelmingly passed Proposition 2, the Michigan Civil Right Initiative (MCRI), 58 percent to 42 percent. The MCRI banned “public institutions from using affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.” It is interesting that the proposition had to be worded specifically to ban preferential treatment. Previously courts had twisted the words “equal protection” to allow for preferential treatment, so demanding equal treatment would not have been sufficient.

Now the University of Michigan is again seeking to obtain court permission to continue their racial spoils systems in defiance of the will of a large majority of Michigan voters. The day after the voters of Michigan made their decision, the University of Michigan filed suit. The university is claiming that the proposition is violating their First Amendment rights to express the views on the importance of diversity. Surely the university itself cannot believe what they are arguing. By their argument racist whites could claim that the First Amendment protects mean-spirited racial discrimination.

Moreover, law schools were recently embarrassed in making the same argument before the US Supreme Court. In Rumsfeld v. Forum for Academic and Institutional Rights, a consortium of laws schools challenged the Solomon Amendment. The Solomon Amendment required institutions that receive federal funding to allow military recruiters the same access to students as any other recruiter. Before the Supreme Court, the law schools argued that the Solomon Amendment violated their First Amendment free speech rights to oppose the military’s “don’t ask don’t tell” policy. The Supreme Court unanimously rejected this argument. They would like to the same in this case should it make it up to the Supreme Court, especially a Court without Justice O’Connor.