Protests Too Much

This is rich -- John Yoo thinks we should be concerned that Supreme Court nominee Elena Kagan might not take a sufficiently broad view of executive power. That's kind of like saying that Tiger Woods is concerned that she's single.

John Yoo was Deputy Assistant Attorney General in the Bush Administration and wrote the infamous "torture memo." He takes the broadest view of executive power around, and his reasoning isn't even remotely responsible. In the torture memo, for example, he said that, in light of the President's power as Commander in Chief, a statutory prohibition against torture had to be construed so as not to apply to interrogations undertaken pursuant to the Commander in Chief authority, and he didn't even mention Congress's war powers. It's one thing to reach a conclusion after considering both sides, but he just ignores the other side.

And he's still doing it. Even in his Times piece, he describes the view that Congress can insulate agency officials from the President's removal power as "simply wrong." Simply wrong! His evidence -- Justice Scalia's dissenting opinion in Morrison v. Olson. He doesn't mention that the vote in that case was 7-1 -- Justice Scalia was alone in dissent. He goes on to say that "From the time of George Washington, presidents have understood Article II to grant them the authority to hire and fire all subordinate officers of the United States, and hence command their activities." He doesn't even mention that this hasn't been the law at least since the Supreme Court's decision in Humphrey's Executor in 1935, more than 70 years ago.

So boy, I'm really concerned that John Yoo might not approve of Elena Kagan. Actually, I'm not. His disapproval is more like a recommendation.

Accidents Happen

Donald Rumsfeld famously suggested that the appropriate response to looting and social upheaval following the Iraq War was "stuff happens." It's nobody's fault, no one could have been expected to plan for and prevent it, these things just happen.

That same attitude is on display from the Republican nominee for Senate in Kentucky, Rand Paul. You knew that Rand Paul was going to be quite a character -- he's the son of Ron Paul, the firmest believer in limited government in the whole Congress and the darling of tax protestors and End the Fed enthusiasts everywhere -- but perhaps you didn't anticipate his response to the BP oil spill and the Massey coal mine explosion: "Accidents happen."

Really. Rand Paul thinks President Obama's criticism of BP has been "un-American." It's just part of the "blame-game society in the sense that it’s always got to be someone’s fault instead of the fact that sometimes accidents happen."

And as to the Massey coal mine explosion that killed 29 miners, Rand Paul said, "We had a mining accident that was very tragic. Then we come in, and it’s always someone’s fault. Maybe sometimes accidents happen."

Wow. Look, I would admit that sometimes accidents do happen -- some things aren't anybody's fault -- but the flip side has to be Rand Paul admitting that sometimes people or corporations blatantly ignore safety rules with disastrous results.

One of government's most basic functions is to protect health and safety. People complain about complicated and intricate safety rules, and I'm sure things do get excessive sometimes, but you have to remember that before the modern era of safety regulation, industrial health and safety was a nightmare. Brakemen had to ride on top of trains and duck when the train went through a tunnel, with predictably horrific accident rates. In coal mines, the death rate from industrial accidents could be up to six percent per year. If you work in an office with 100 people, it's pretty jolting if one of them dies on the job. Now imagine if six of them died on the job -- every year.

So accidents don't just "happen." OK, sometimes they do, but often they are the predictable result of not putting a sufficient priority on safety. The nation struggled for decades building an infrastructure of industrial health and safety. I'm sure some elements of the resulting rules are excessive, but to go back to the attitude of "accidents happen," as though there's nothing that could or should be done about that, is stunning.

Swear or Affirm

Members of the House of Commons were sworn in this week as the new Parliament started. As is true in the U.S., members can choose to swear by God that they will bear true allegiance (to Her Majesty there, to the Constitution here), or they can solemnly affirm that they will do the same. But what's interesting is that, as can be seen in the video, in Britain many members actually choose the "affirm" option. The new Conservative Prime Minister, David Cameron, swore, but his Deputy Prime Minister, Liberal Democrat Nick Clegg, affirmed, as did the Speaker and the Leader of the Labour party. Most of the Labour party affirmed; most of the Conservatives swore.

What would happen to a politician in the U.S. today who declined to take an oath and swear by God to support the Constitution? Our Constitution gives the affirm option and provides that "no religious test" shall ever be required for public office, but I think the voters might visit their displeasure on a politician who didn't swear. Apparently Franklin Pierce chose to affirm back in 1853, and Quakers often affirm because their religion takes literally the biblical prohibition on swearing by God. But a politician today who affirmed and explained doing so on the ground that he didn't believe in God would be in some trouble here, I think.

LWOP

Having covered the truly significant decision in yesterday's post, let's get to the flashier but not really as important decision in Graham v. Florida. The Supreme Court held that it is unconstitutional "cruel and unusual" punishment to sentence a juvenile offender to life without parole ("LWOP") for a crime not involving a homicide.

I don't really have strong feelings about the decision -- although I think I might have joined the second part of the Chief Justice's opinion, which concluded that LWOP was an unconstitutionally disproportionate sentence for the crime involved in the particular case before the Court, without deciding whether such a sentence could never be appropriate for any juvenile convicted of a nonhomicide offense, no matter how horrible and depraved that offense might be.

What interests me about the decision, though, is this: Justice Thomas, joined by Justice Scalia, expressed the view that there is no proportionality requirement whatever in the Eighth Amendment's Cruel and Unusual Punishment Clause. That clause, they believe, prohibits torturous methods of punishment, but has no application to the question of whether a punishment that might be permissible for some crime is too severe for some other crime. The Court majority, on the other hand, stated that "[t]he concept of proportionality is central to the Eighth Amendment." How can five Justices think something is "central" to the Amendment and two Justices think it not involved at all?

As is often the case, part of the answer comes down to textualism versus other interpretive methods. Justices Thomas and Scalia, in my view, put too much weight on textualism in this question. The Eighth Amendment's single sentence provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It is true that the text does not expressly impose a proportionality requirement on prison sentences. But it does prohibit excessive fines. Can anyone possibly explain why the Constitution would provide that society cannot impose a fine on a criminal that is disproportionate to the criminal's offense, but could impose a disproportionate prison sentence?

I'm sorry, but it just doesn't make sense. One can understand how the Framers might have neglected to specify that prison sentences shall not be excessive, because, as Justice Thomas himself notes, prison sentences were not a common punishment in the eighteenth century -- criminals were punished by fines, whipping, or shaming, or, if that was not sufficient, then by death. But it is hard to understand how anyone could want to prohibit excessive fines but not excessive prison sentences, and the appropriate solution is to subsume the excessiveness requirement in the prohibition on cruel and unusual punishment.

Potentially Important Harbinger

Most of the legal press attention yesterday went to the Supreme Court's ruling that states can't impose life sentences without parole on juveniles who commit offenses other than murder. But really, in terms of overall significance, the more important ruling was the one that held that the federal government can civilly commit and detain sexually dangerous prisoners beyond the date they would be released under their criminal sentences.

This other case, United States v. Comstock, was significant because it turned on the scope of Congress's affirmative powers. It wasn't about constitutional limitations such as the Due Process Clause, but whether Congress has power to enact a statute in the first place. Under the Constitution, Congress, unlike a state legislature, does not have general, indefinite powers. Its powers are limited to those specified in the Constitution (mostly in Article I, section 8). If Congress doesn't have the power to pass a statute in the first place, it doesn't matter whether a state could pass the same statute without violating individual freedoms. That's why the Supreme Court struck down provisions of the Gun-Free School Zones Act in the landmark case of United States v. Lopez.

Comstock considered this issue in a somewhat rarefied context, but it could be an important harbinger of how the Supreme Court will rule on the vital question of the constitutionality of the individual health care mandate in the health care reform act, which is being challenged on the same ground. The important point is that Comstock confirmed the traditionally broad view of Congress's powers, including its power, under the Necessary and Proper Clause, to pass all laws that are necessary and proper to put its other powers into execution.

The Court reaffirmed that the word "necessary" in the Necessary and Proper Clause does not mean "absolutely necessary," but rather something more like "convenient" or "useful." The Clause, the Court noted, leaves Congress a "large discretion" in choosing the means to be employed in executing its powers. And the Court adhered to precedents showing that a statute may be valid under the Necessary and Proper Clause even though there are multiple steps in the chain of necessity from one of Congress's expressly enumerated powers to the statute in question -- Congress is not limited to things one step removed from expressly granted powers. Thus, for example, Congress is expressly empowered to "Establish Post Offices and Post Roads," from which, it has been inferred, Congress has the power to carry mail along the post roads, from one post office to another; and from this, it has been secondarily inferred, that Congress has power to punish those who rob the mails. The Court even went so far as to suggest that, in reviewing whether a statute is "necessary and proper" to the execution of Congress's powers, a court should apply the highly deferential standard of asking only whether the statute is "rationally related to the implementation of a constitutionally enumerated power."

Significantly, Chief Justice Roberts joined the Court's opinion, and Justices Kennedy and Alito concurred in the result. Justice Kennedy, the fabled "swing voter" of the Court, thought the Court's opinion went too far in invoking the "rationally related" standard -- he thought there should be somewhat more searching judicial review of whether a statute is "necessary and proper." But he agreed that there is no requirement that a statute be only one step removed from a specifically enumerated power, and he agreed that the test is deferential.

None of the Justices mentioned the health care mandate, but surely they all understand that it lurks in the background. The biggest challenge to the mandate, as I have previously discussed, will be the claim that it exceeds Congress's affirmative powers. The mandate looks a little more secure now than it did before this case. It's still not a slam dunk, but this case suggests that the Supreme Court is not in the mood for further radicalization of its jurisprudence regarding Congress's affirmative powers.

Should Kagan Talk?

Lots of buzz lately about whether Elena Kagan, President Obama's choice to fill Justice Stevens's Supreme Court seat, should or will actually answer questions during her Senate hearings, or whether she will follow the example of recent nominees and pretty much stonewall everything. Some commentators have enjoyed pointing out that Kagan herself has stated that "the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct." So it might seem that she should be particularly subject to substantive questioning.

Supreme Court confirmation hearings have become a game in which nominees display their skill at avoiding substantive questions. It's a little peculiar. The expressed reason is usually that the nominee doesn't want to "prejudge the issue." It is thought unseemly that the nominee should commit herself to voting a particular way on an issue that is likely to come before her as a judge. But if that is the case, what do we do with actual judges and Justices who have, many times over, committed themselves to voting particular ways on particular issues that come before them? Every Justice who votes on a case is committing himself to voting that way on the same issue the next time around. There's no need to wonder how Justice Scalia or Justice Breyer will vote on the question of whether Congress can abrogate state sovereign immunity; they've both expressed their views on this issue very clearly. Should they be kicked off the Supreme Court? Obviously that's not how it works.

A better reason for a nominee's reluctance to answer questions, I think, should be that they don't know the answer. I remember during Justice Souter's confirmation hearings that a Senator, trying to find some acceptable way to get at the nominee's views on big issues, asked whether the Korean war was constitutional (or perhaps he asked whether it was a "war" in the constitutional sense, I don't remember exactly). Souter declined to answer, citing the usual reasons. But I think a better reason would have been this: look, we don't hire people for the job of Supreme Court Justice because they have the answer to every difficult question written on their shirt cuffs. If that question really arose in real litigation, it would get bandied about in the lower courts for months or even years, parties would make every conceiveable argument on both sides, it would come up to the Supreme Court in a particular context, it would be extensively briefed and argued there, and only then would a Justice be called upon to opine on it.

Justices aren't and shouldn't be expected to know everything instantly. They get to look smart because they make decisions by choosing between outstanding arguments made by smart counsel. I suppose it wouldn't play well on TV if Souter, asked whether the Korean war was constitutional, had said, "oh, I have no idea," but that would probably be a more honest reason for declining to answer. There's a reason why we have an elaborate process for getting answers from the Supreme Court. The questions are hard and the answers should be produced with deliberation.

PR Again

The other day I pointed to a couple of disadvantages of proportional representation, so it's only fair to give the other side a hearing, and who better to explain the advantages of proportional representation than funnyman John Cleese? Just click here for a ten-minute video explanation that points out that (1) pretty much every other country in Europe uses PR, (2) PR tends to prevent sharp policy swings from liberal to conservative and back again, (3) PR promotes compromise instead of divisiveness, (4) PR produces a Parliament that better reflects the overall voting distribution in the country, and (5) PR tends to elect more women and minority MPs than first-past-the-post.

A well-done video that makes you think. And it was produced back in 1987! So this issue has been around for a long time.

Fixed-Term Parliaments?

Now that David Cameron is Prime Minister, with Nick Clegg as Deputy Prime Minister, the pair can get to work on their agenda (and I promise we'll stop with this British politics stuff soon). Apparently one item on the program is a change to fixed-term Parliaments, so that the next election date is already planned for May, 2015.

Have the Brits thought about what this will mean? Britain is currently blessed with short election campaigns -- they last about six weeks. But, it seems to me, that's all based on not really knowing when the election is going to be. Current British law permits the governing party to call a general election anytime it wants, with a maximum interval of five years between elections. Of course that is rather unfair -- it gives the party in power an important edge, by allowing it to call an election when it thinks things are going well. But it does have at least one important advantage -- the campaign is short.

Because there's no fixed date for the election, no one knows when to start campaigning. Of course, you could start promoting yourself early, I suppose, but campaigning costs money, and you don't want to start blowing your campaign funds when you don't know the election date.

Once there's a fixed election date, it seems to me, everyone can start campaigning at whatever time they think strategically best, and the American experience suggests that that time gets earlier every election cycle. If Britain firmly establishes now that its next general election is going to be in May, 2015, I would expect campaiging to start a whole lot earlier than the traditional six weeks or so before the election -- they might have to endure six months or a year, and that's just for this go-around.

Well, perhaps they'll deal with it by limiting campaigning legally. Britain has no First Amendment to get in the way of campaign restrictions, so political television advertising is already mostly banned in Britain, and perhaps they'll figure out a way to stop campaigns from getting too long. But it'll be hard to ban all political promotion and I think fixed-term Parliaments are likely to lead to much longer campaigns.

Tired Cliche

I'm nearly done with the grading process, and boy am I happy about that. Grading is the worst part of the job.

About this time of year, you often hear professors console themselves by saying, "grading is what I get paid my entire salary to do. I'd do the rest of my job for free."

This was amusing the first few times I heard it, but it's gotten rather stale by now. And I'm sorry, but it's not true. Being a law professor is in fact a great job, but it's not something I or anyone else would do for free.

Don't believe me? Here's my standing offer to any law professor who makes a good salary and who insists on this view: I'll do your grading for you. You do the rest of your job. And you'll only have to pay me three-quarters of your salary. You can keep a quarter for yourself. That way, you'll be ahead of the game, since you've stated that you'd do the rest of your job for free.

Any takers?

Poignant Letter

And speaking of British politics, I enjoyed this short but poignant letter that appeared in the Guardian newspaper:

"I should like to check a couple of things in the British Constitution. Where can I buy a copy?"

American constitutional law is hard enough, but at least the Constitution consists of a text that anyone can read. Britain's "constitution" consists of an ill-defined set of important statutes plus an even less well defined set of traditions.

Some work is in progress to provide Britain with a written Constitution -- and I am proud to tell you that this project was announced in a speech at George Washington University by Jack Straw, Britain's Justice Secretary, when he was here a couple of years ago -- but at the moment there is of course nowhere to "buy a copy" of the British Constitution.

It must make things tough when things like a hung Parliament arise. The previous Prime Minister, Gordon Brown (who apparently is still Prime Minster, at least for now), initially insisted that the rule for that situation was that he had the first opportunity to form a new government, but David Cameron (leader of the Conservatives, who got the most seats) thought that it was his prerogative. The matter was effectively decided by Nick Clegg, leader of the third-party Liberal Democrats, who agreed with Cameron.

Of course, we have plenty of doubtful points arising under our written Constitution too. But at least we know what the Constitution is, even if we don't always know what it means.

Proportional Stalemate

I doubt that I have many British readers, but the Internet goes everywhere, so here's a thought for Britons contemplating switching to a system of proportional representation.

First, background for American readers: Britain's general election on Thursday produced a "hung Parliament" -- no single party controls a majority of the seats in the House of Commons. The Conservatives have the biggest share of seats at 306, Labour is second at 258, and the third party Liberal Democrats have 57. Minor parties control 28. That means that no party can form a government by itself, and coalition talks are proceeding. 326 seats are needed for a majority, so the Conservatives could form one by allying with the Liberal Democrats, but Labour and the Liberal Democrats together wouldn't have enough -- they'd have to rope in some small-party seats.

The biggest demand of the Liberal Democrats is a change in the system of elections. Britain, like the U.S., uses a "first past the post" system, in which any given seat goes to the candidate with the most votes for that seat, even if that number is not a majority. Such a system is hard on third parties. A party like the Lib Dems, which has a fair amount of support throughout the country but not much concentrated support anywhere, doesn't get nearly its "fair" share of seats, if "fair" is defined as proportional to the overall vote. Last Thursday the Lib Dems got 23% of the nationwide vote but only 9% of the seats in Parliament.

A proportional representation system is fairer in the sense that seats in the legislature are distributed in proportion to the overall national vote, but it has the disadvantage that voters don't really get to vote for candidates -- the vote is more a vote for a party than for a candidate. Your local representative is determined in part by the overall national vote, so the sense of voting for a particular candidate because he or she is good is diminished.

Anyway, all of that is the background to what I'm sure is a very obvious point, but here goes: if Britain is upset that is has a hung Parliament, in which the parties have to go wooing each other to form a majority, don't they realize that a system of proportional representation would produce a hung Parliament forever? This year the Conservatives got 36% of the vote, Labour 29%, and the Liberal Democrats 23%. With percentages like that, with no party even close to 50%, a proportional representation system is guaranteed to produce a hung Parliament. First past the post produces more concentrated results.

That's not to say that first past the post is good and proportional representation is bad. Each system has its virtues and its vices. But it seems clear that if Britain switches to proportional representation, it had better be ready to live with coalition government indefinitely.

The Constitution and Car Bombs

As might have been predicted, the arrest in the NY car bombing case has set off a wave of arguments about whether the suspect should be afforded the usual protections of the criminal law. Some Republicans members of Congress are suggesting that we should ignore the usual constitutional rules of the criminal law, charge the suspect as an enemy combatant, and bring him before a military tribunal.

Let's not listen to anything I have to say about the issue. Let's turn to that noted radical liberal, Supreme Court Justice Antonin Scalia, who said:

"Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention
without charge."

Apparently lots of people are ready to ignore constitutional restraints in the war on terror. Justice Scalia thinks the Constitution is there to protect us in peacetime and wartime and that its time-tested restraints should be honored. Even as to citizens who wage war against us, the Constitution, Justice Scalia says, requires us to treat them as criminals and charge them accordingly.

Stepped-Up Security

Police are said to be stepping up security in the wake of the failed car bomb attempt in NY. I suppose that's a good thing, and it's certainly wonderful that a combination of alert citizens and swift police response thwarted the car bomb in the first place. But really, how can we protect America against car bombs? Terrorism experts say that the Times Square bobmer's use of simple, easily obtained materials made the bombing "relatively easy to execute and nearly impossible to detect."

In our wide-open society, I don't see how simple attacks like these can really be stopped. We can't set things up so that you have to go through security whenever you want to go from anywhere to anywhere else. We can't have police everywhere all the time.

When Iraq was going through three or four big car bombings a week, I wondered why we didn't have them in the U.S. Perhaps part of the answer is social -- there probably aren't many completely solo car bombers; they must be fostered by the kinds of groups that we don't have. Let's hope it stays that way.

And meantime, appreciate the preciousness of life. Enjoy and savor.

The Disk Keeps Spinning

I don't know if Macs do this, but every Windows user must be familiar with those mysterious moments when the hard disk just keeps spinning, spinning, spinning. You're just typing something routine, trying to click on a web link, or perhaps not even touching the computer at all -- just reading what's on the screen at the time -- and there goes that hard disk, spinning, spinning, and more spinning. If you succeed in clicking on a link or typing a few characters, the machine reacts with agonizing slowness, as though it's fitting in your requests in those few spare moments it has in between its own, far more important business. You want to press a big red button that would tell your computer, "stop whatever you're doing and pay attention to ME!" Eventually, some minutes later, the hard disk stops spinning and the computer gets back to normal, as though it remembers that it's supposed to at least pretend that you're boss. Needless to say, that's what I'm going through right now.

What are our computers doing during these mysterious spinning moments? Is it a computer's form of exercise? Are they carrying out secret instructions from some distant user? Or do they have their own agendas -- some grand, unknown computation that they are calculating, all in league together perhaps, linked up over the Internet, which will reach its fruition at some moment known only to them?

You might think that if you aren't even touching the computer, and if you haven't even asked it to do anything, it would sit at the ready, awaiting your next instruction. But you'd be wrong.