The cover story of last week's Time magazine dealt with a topic near and dear to my heart: the Supreme Court. Chief Justice John Roberts' aristocratic visage graced the cover, alongside the words, "Does the Supreme Court Still Matter?"

Does the Pope like schnitzel?

Of course the Supreme Court matters. The author of the piece, David Von Drehle, says that "the Court's ideology is playing a dwindling role in the lives of Americans," insisting that the issues with which the Court deals every day -- abortion, segregation, prisoners' rights -- are being relegated to the realm of interesting philosophical discussions. "[T]he left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence," he writes.

Except that he's wrong. Now, more than ever, the Court's opinions strike at the heart of Americans' lives. Von Drehle confuses the Court's deference to the states -- a project undertaken by the late Chief Justice Rehnquist and now continued by his successor -- with a court that takes a pass on deciding important issues. In the Court's last term, we saw an abortion ban without an exception for the health of the mother upheld, something that Justice Ginsburg, writing for the minority, called "alarming." More alarming was the dubious reasoning and evidence that led to the opinion: government witnesses claimed that there was never a medical necessity to perform an intact dilation and extraction ("partial birth") abortion, even though the medical evidence was overwhelmingly to the contrary. The right of women to have abortions is not theoretical. As an issue of discrimination, it is important to women: men will never, ever have to be told that they cannot do something to their bodies. As an issue of privacy, it is important to all Americans: what else will the state be able to prevent us from doing to ourselves in the comfort of our own homes, in the name of morality? (The War on Drugs comes to mind, but thus far, how we choose to alter our minds has been the only place where the government has stepped in to declare that it knows better than we.)

When Roberts was before the Senate Judiciary Committee, he said that he wanted consensus as much as possible on cases, so as to increase the authority of the decisions. A 9-0 or 8-1 decision has, legally, the same standing as a 5-4 decision, but as a practical matter, the former decision holds up better to scrutiny. The future will regard as more "correct" an opinion reached by all nine justices than a fractured opinion. Several important decisions in the last term were decided by 5-4 majorities, with The Usual Suspects on each side and Justice Kennedy breaking the tie. The notion of consensus is no longer an option, and it appears that, for the foreseeable future, we will have 5-4 decisions and a fractured court.

Justices Roberts and Alito also voiced their support for stare decisis, the philosophy that, all things being equal, contemporary justices should defer to past opinions and doctrines rather than re-invent them. In this term, however, we have seen precedents overturned in Gonzales v. Carhart and Parents Involved in Community Schools v. Seattle School District No. 1. The former case overturned one of the requirements of Roe v. Wade; namely, that there must always, in any abortion-restriction law, be an explicit exception for preserving the health of the mother. In the latter case, the majority altered affirmation action jurisprudence to suggest that it is not the government's job to facilitate racial integration.

The justices' theoretical opinions will have far-reaching consequences. Take, for example, the decision in Morse v. Frederick, the "Bong Hits 4 Jesus" case. Chief Justice Roberts, in his theoretical analysis of the case, posits that one of the missions of a public school is "deterring drug use." This has very little support within the law, but now that it has been set in Supreme Court Stone, schools must necessarily make "deterring drug use" one of their goals. The justices attempt to create theories, which they apply to their opinions. I expect that this school of legal reasoning is supposed to make the process of adjudication more "scientific," but since each wing of the court (and, indeed, each justice) has its own theories about how the law works, this attempt to make the law more objective ends up creating 5-4 decisions.

It's alarming to suggest that, because the Supreme Court is out of touch with the people, it's irrelevant. The Supreme Court isn't elected by the people, and the justices will never be directly answerable to the people, so what's irrelevant is the notion that the Supreme Court's being out of touch makes it irrelevant. Regardless of what the American people feel about abortion, the Supreme Court will continue to interpret the law as it sees fit.

What is really important is for Congress to tidy up the law in such a way that the Court's opinion becomes irrelevant. The Court does not exist to provide relief in cases where Congress should act; the Court merely interprets the law in the absence of an explicit explanation in a law. Where the Supreme Court has decided "wrongly," it is up to Congress to step in and change the law. The Court's job is not to write legislation, merely to fill in the holes that Congress left in a law. If Congress fills in the holes, then the Court's opinion becomes moot. It is difficult to say that one branch of government is more important or unimportant than another; ideally, they would all work together.

Posted by Mark at 11:42 AM | Permalink | Comments (0) | TrackBacks (0)

Yesterday, the U.S. Supreme Court granted certiorari to a Kentucky case challenging the legality of lethal injection. The suit was filed by two inmates in a Kentucky prison who are themselves on death row. The Supremes will have to decide whether or not lethal injection qualifies as "cruel and unusual punishment," which is prohibited by the Eighth Amendment.

The Supremes also granted certiorari to an Indiana voter ID case. An Indiana statute requires voters in that state to present a government-issued photo ID before voting. Critics of the measure say it amounts to de facto disenfranchisement, as the kinds of people who would be unable or unwilling to obtain a photo ID are the kinds of people who would vote Democratic. The Fourteenth Amendment requires both state and federal governments to extend "equal protection of the laws" to all people in the United States. To deny someone the right to vote based solely on that person's inability to pay for a photo ID is most certainly not "equal protection."

The Court's term begins Oct. 1 with oral arguments in two cases, neither of which is terribly interesting. In Washington State Grange v. Washington Republican Party, petitioner Washington State Grange Party believes that Washington's "top-two" primary system (in which voters in a primary choose from between the two most popular candidates, regardless of political affiliation) is unfair because it allows a candidate to list which party he or she personally prefers (and, through that, allow voters to identify which party they are from).

The second case, Board of Education of the City of New York v. Tom F, involves whether or not a disabled child is entitled to tuition reimbursement under the Individuals with Disabilities Education Act even if that child hasn't received special education from a public agency.

See? Boring. But better cases are coming this term! And, we'll get to see how far to the right the Roberts court will again swing.

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Departing from a precedent set forth in Stenberg v. Carhart, 99-830 (2000), the U.S. Supreme Court today upheld the legality of the Partial Birth Abortion Ban Act of 2003. The act prohibits what are called "intact dilation and extraction" abortions," in which a physician or abortion doctor moves the fetus past the cervix into the vagina before he aborts it. The challenge to the Act was upheld by every lower court, but in a 5-4 decision (Anthony Kennedy was the swing vote), the Supreme Court reversed the lower courts, saying the Act was, in fact, constitutional. (For more details, please read the Supreme Court's opinion in today's case, Gonzales v. Carhart, 05-380.)

Justice Kennedy, writing the majority opinion, addressed the following arguments against the Act:

1. The Act is unconstitutionally vague;
2. The Act acts as an illegal barrier to obtaining an abortion;
3. The Act does not contain an exception for performing an abortion to preserve the life of the mother, as required by Stenberg.

Objections (1) and (2) are rather procedural. I happen to agree with the majority on Objection (1) -- that the Act is not unconstitutionally vague. As a piece of legislation, it's quite clear what is being rendered illegal and what the punishment is. Objection (2) is not so clear. Kennedy writes that the Act, while a barrier to abortion, is not necessarily an illegal barrier:

"[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." (quoting Planned Parenthood of Pa. v. Casey, 505 U.S. 833 (1992))

Furthermore, reasons Kennedy, "the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." This is sketchy reasoning at best because of Objection (3), which is at the crux of this decision.

In Stenberg, which actually dealt with a partial-birth abortion statute in Nebraska, the Supreme Court ruled that all legislation that regulated abortion must contain a provision for performing an abortion to save the life of the mother. No ifs, ands, or buts. The Republican-controlled Congress tried twice in the 1990s to enact a federal partial-birth abortion ban, but both times, the bill was vetoed by President Clinton, and neither house could muster up enough votes to override the veto. With President Bush in power in 2001, Republicans passed -- and Bush signed -- the Act now in question. In 2000, the Supreme Court felt that there was enough medical evidence to suggest that there are situations in which abortion may be medically necessary to save the mother's life (C. Everett Koop's opinions nonwithstanding).

Whenever Congress writes a law, it prefaces the actual legislation with its "findings," which are supposed to act as a guide to future interpretation of that law. In the findings for the Partial Birth Abortion Act, the Republican-controlled Congress called the Court's findings in Stenberg "very questionable." To that end, in their findings, they concluded that the partial-birth abortion method prohibited by the Act "is never medically necessary." These four words form the entirety of justification for the majority's opinion today. All abortion cases after Stenberg have relied on the Court's belief that abortion may be medically necessary. Congress sidestepped the Court in makes its own determination that an intact dilation and extraction abortion "is never medically necessary." Because it is necer medically necessary, Casey's requirement that an abortion restriction must protect the life of the mother has been blown away, since, in this instance, Casey would require something that is impossible! Because the mother's health is never in question now, the government defaults to protecting its "legitimate and substantial interest in preserving and promoting fetal life" only. Mommy doesn't matter, anymore! Her health will never be in danger!

But what of the issue of safety to the mother? Also at issue is whether intact dilation and extraction abortion is safer for the mother than a regular dilation and extraction abortion (the difference is that, in the former, the physician tries to remove the fetus as intact as possible, and in the latter, the physician removes the fetus in pieces). Kennedy notes the "documented medical disagreement" that exists as to whether or not "the Act's prohibition would ever impose significant health risks on women," but dismisses it, instead suggesting that "[a]lternatives are available to the prohibited procedure," or that the legislature should take on the issue. He will have none of it today!

Justice Ginsburg is pissed. In her dissent, in which she was joined by Stevens, Souter, and Breyer, she writes,

Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.

I dissent from the Court's disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices.

Ginsburg's objections are four-fold. One, she disagrees with the science supporting the majority's opinion. "The term 'partial-birth abortion' is neither recognized in the medical literature nor used by physicians who perform second-trimester abortions," she writes in her very first footnote, saying that the the procedure had been dubbed so "in the political arena." Ginsburg disagrees with the very core of the majority's opinion, saying that the evidence supporting Congress' findings that intact D&E "is never medically necessary" "do not withstand inspection, as the lower courts have determined and this Court is obliged to concede." Take a look at these whoppers (with some citations removed to make reading less irritating):

Many of the Act's recitations are incorrect. For example, Congress determined that no medical schools provide instruction on intact D&E. But in fact, numerous leading medical schools teach the procedure. See also Brief for ACOG as Amicus Curiae 18 ("Among the schools that now teach the intact variant are Columbia, Cornell, Yale, New York University, Northwestern, University of Pittsburgh, University of Pennsylvania, University of Rochester, and University of Chicago.").

More important, Congress claimed there was a medical consensus that the banned procedure is never necessary. But the evidence "very clearly demonstrate[d] the opposite." Planned Parenthood, 320 F. Supp. 2d, at 1025. See also Carhart, 331 F. Supp. 2d, at 1008-1009 ("[T]here was no evident consensus in the record that Congress compiled. There was, however, a substantial body of medical opinion presented to Congress in opposition. If anything ... the congressional record establishes that there was a 'consensus' in favor of the banned procedure."); National Abortion Federation, 330 F. Supp. 2d, at 488 ("The congressional record itself undermines [Congress'] finding" that there is a medical consensus that intact D&E "is never medically necessary and should be prohibited." (internal quotation marks omitted)).

Similarly, Congress found that "[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures." But the congressional record includes letters from numerous individual physicians stating that pregnant women's health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods. See also Planned Parenthood, 320 F. Supp. 2d, at 1021 ("Congress in its findings . . . chose to disregard the statements by ACOG and other medical organizations."). No comparable medical groups supported the ban. In fact, "all of the government's own witnesses disagreed with many of the specific congressional findings."

Clearly, this evidence goes quite a long way from suggesting that intact D&E "is never medically necessary," and while all the lower courts disagreed with those four words, the majority in this case chose to disagree with evidence to the contrary.

Two, she also takes on Kennedy's dismissal of the relative safety of intact D&E versus regular D&E: "We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion." In her mind, the government's illegalization of intact D&E forces them to consider what some may construe as a more unsafe method; namely, the standard D&E. Ginsburg would rather that the state err on the side of protecting the already-living mother, and rightly so. In instances where the survival of the mother is directly at odds with the survival of the fetus (assuming there is no other medical technique that could save both the mother and the fetus, or that such options have been exhausted), the mother should always win.

Three, "the Act scarcely furthers ["the legitimate interest of the Government in protecting the life of the fetus that may become a child"]: The law saves not a single fetus from destruction, for it targets only a method of performing abortion." Good one, Ruth! If the government is so keen to protect the lives of innocent, unborn babies, then why outlaw only one procedure? Two answers. The first one, my answer, is that religious Republican groups are working to slowly erode away abortion rights, bit by bit. This is only the beginning. Two, Justice Ginsburg's answer, is that "[d]elivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant."

Fourth, Ginsburg is pissed that the government is acting so patronizingly and infantilizing women:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem." Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning."). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

This way of thinking reflects ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited.

As though it is the government's job to act as a man of the 19th century would in telling a woman what is good for her.

And yes, Kennedy actually did write in today's opinion, "Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well." So, it appears that contemporary court rulings from other countries are not permissible as support for a Supreme Court opinion, but "Western heritage," the Bible, and now "the bond of love the mother has for her child" are. I see that Anthony Kennedy got his legal justifications by reading the case Potter v. Voldemort, in which respondent Lord Voldemort was defeated by petitioner Harry Potter using a similar legal (or was it magical?) justification.

Well, what now? We have seen a small chip come off the large block of a woman's right to an abortion, which is a chunk of a woman's right to do what she pleases with her own body. For a variety of flimsy reasons, the Supreme Court has decided today that -- in some cases -- women should be prohibited from doing certain things to their bodies in the name of (1) morality and (2) what the government thinks is good for them. And what's nearly as bad, Anthony Kennedy has joined The Dark Side. This may not be the last of the 5-4 conservative majorities.

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The Recording Industry Association of America (RIAA), the cartel (not necessarily pejorative; the RIAA fits the definition of a cartel) of U.S. recording companies, is deeply concerned about artists. Many times, they have used, as an argument against file sharing, the moral argument: when you download music, you're stealing from the artists. And the artists deserve to be paid, too!

In an effort to keep their logic consistent, the RIAA petitioned the federal Copyright Royalty Judges to lower the royalty rates "in applications like cell phone ring tones and other digital recordings." A royalty is a fee paid to a content creator every time his work is publicly performed or copied. Recording companies license content -- in this case, a song -- from an artist and paid him for each copy of the song they sell. In the United States, this is called a "statutory fee" because the fee is set by statute.

How interesting that the RIAA, on the one hand, laments the plight of the poor artist who is losing money because Timmy is downloading illegal copies of his music, and on the other hand, wants to pay those same artists less money. Cell phone ringtones are a gold mine and the RIAA is furious that they have to actually compensate the people who wrote the song! That money should belong to EMI, or Atlantic, or Time Warner!

I haven't read the actual text of this request, so I don't know if the RIAA wants to lower royalty fees for all digital content. If that were the case, certainly any sane judge would realize that they're just trying to weasel their way out of paying for music in a burgeoning new market. That's been the RIAA's tactic all along: instead of adapting themselves to new markets, they've been trying to adapt the new markets to behave like the old ones, so that RIAA won't have to innovate or spend money changing anything. The Digital Millennium Copyright Act was a valiant attempt to make digital content behave like analog content, but there's no guarantee that consumers will tolerate it.

I wonder what Metallica thinks now?

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WASHINGTON -- This week, the U.S. Supreme Court will hear oral arguments in a case that shows exactly what the Bush administration agenda is, in black and white. (Please read the summary of questions presented in Massachusetts v. EPA, 05-1120.)

The Bush administration is actually going to argue that it should not be required to enforce certain provisions of the Clean Air Act; namely, the EPA does not believe that carbon dioxide emissions are a "pollutant" as defined by the Clean Air Act, and thus the administration should not have to regulate those emissions.

But why would the government argue that it shouldn't have to enforce its own laws? In the schizophrenic world of the Bush administration, the law is pitted against (1) the philosophies of Bush apointees, many of whom came from the very industries that they are now in charge of regulating; and (2) the interests of Bush personal friends and financial backers. It wouldn't be very good for business if the government suddenly required dramatic, nationwide reductions in carbon dioxide emissions. Domestic auto manufacturers and energy companies would be forced to -- gasp! -- spend money developing alternative energy sources that don't generate as much carbon dioxide.

With Bush in office, they've had some help in that regard. Bush's so-called Healthy Forests initiative increased the amount of logging that logging companies could engage in. The so-called Clear Skies Act actually weakened the Clean Air Act. All of this backscratching was done in the name of pleasing Bush's constituency.

Now, the administration is being taken to court to require it to set standards of carbon dioxide emissions through the Clean Air Act. The administration claims that carbon dioxide doesn't qualify as a "pollutant" under the Act; however, the Act itself is quite clear in its language. A "pollutant" is anything that is released into the air, regardless of whether or not it is dangerous or toxic. As carbon dioxide is released into the air, it stands to reason that it qualifies as a "pollutant" and thus must be regulated under the Clean Air Act.

Part of the Bush administration's failure to regulate carbon dioxide emissions may be political (obviously). In regulating carbon dioxide emissions, the administration may be admitting that carbon dioxide is a pollutant "associated with climate change," and in admitting that, the administration would also have to admit that there is such a thing as global warming, and that humans are causing it. The administration thus far refuses to believe such a thing, and it has gone to great lengths in the past to censure or silence government scientists who would make such a conclusion. Again, this is due to the relationship Bush has with auto and energy companies, who do not want to have to spend billions of dollars to change their business models.

More analysis on the D.C. Circuit Court's prior decision in this case, as well as citations from the Clean Air Act.

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A few years back, the U.S. Supreme Court issued a ruling in the case Boy Scouts of America v. Dale, 99-699. (FindLaw had better get up to speed with its citations.) You'll recall that, in that case, respondent Dale was fired as a boy scout troop leader when the Boy Scouts discovered that he was gay. The Boy Scouts are a Christian organization (and, indeed, one of their largest single supporters is -- ta da! -- the Mormons!) and, of course, homosexuality is inconsistent with Christianity.

Dale sued the Boy Scouts, alleging discrimination. The Boy Scouts' defense was that forcing them to admit homosexuals was a violation of their "freedom of expressive association," a First Amendment doctrine which holds that groups should be permitted to discriminate in their membership if admitting particular members would go against the mission of that group. Or, as Chief Justice Rehnquist wrote:

The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see, Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 123-124. The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs.

This is not a doctrine invented out of whole cloth by the justices; it's been around for a while, and it makes sense: if you're forced to accept members whose existence in your organization dilutes the organization's mission, then the government has placed an "undue burden" on your ability to express yourself through your choice of membership.

A lot of homosexual rights groups didn't like this decision. I disagreed with them, and I still do: the court's opinion in Dale was correct, given the implications for freedom of expressive association if they had decided the other way.

Well, now it's time for just desserts. The U.S. Supreme Court refused to grant a writ of certiorari -- which means they refused to hear the case -- to the Sea Scouts, an offshoot of the Boy Scouts. Eugene Evans v. City of Berkeley -- that's right, our very own Berkeley! -- pitted the Sea Scouts against the intractable neo-hippie liberalism of Berkeley, California. The city of Berkeley permits nonprofit organizations to moor boats at the Berkeley Marina for free -- as long as they do not discriminate against any race, religion, ethnicity, et cetera et cetera. The Sea Scouts, as an offshoot of the Boy Scouts, must necessarily discriminate in both religion and sexual orientation. As such, the city of Berkeley took away their free mooring status and started charging them $500.

This time, it was the Sea Scouts who alleged discrimination -- that the city of Berkeley was restricting their freedoms of speech and expressive association. The trial court and the state Court of Appeals both ruled in favor of the city. The California Supreme Court affirmed the decision.

In the Sea Scouts' defense, they have never discriminated against anyone based on religion or sexual orientation. However, when requested by the city attorney to provide a written statement that they wouldn't do so in the future, the group would only state that they considered sexual orientation to be "a private matter." The Sea Scouts later told the city attorney that they did not explicitly condemn such discrimination "due to fear of losing their charter from the Boy Scouts.” The court's ultimate decision:

We agree with Berkeley and the Court of Appeal that a government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy. We further agree Berkeley reasonably concluded the Sea Scouts did not and could not provide satisfactory assurances because of their required adherence to BSA’s discriminatory policies.

The California Supreme Court suggested that the state not funding a particular group is not equal to the state barring the speech of that group. "The [U.S. Supreme Court] has generally approved, against First Amendment challenges, programs of governmental financial assistance that limit the expressive activities for which the funds may be used," said the California Supreme Court.

Now it is the Boy Scouts' turn to be upset. Maybe if they didn't hate The Gays so much, the Sea Scouts -- which are guilty only of being affiliated with the Boy Scouts -- might have a free berth in the Berkeley Marina.

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Welcome to the Supreme Court's 2006 Term! While the term officially began last week, I wasn't talking about it. So let's get to business. This is the court's first full term with its new, reconstituted self: John Roberts replaced Chief Justice Rehnquist about a month before the beginning of the term last year, and Samuel Alito joined the court in December. Now we will see the power of the fully armed and operational judicial station!

Last Tuesday, the court heard oral arguments for its first cases of the term (while the term began on Monday, they heard no arguments that day). The cases of Lopez v. Gonzales and Toledo-Flores v. United States were consolidated into one argument. The question presented in each case is essentially the same: the petitioner was convicted of drug possession, a misdemeanor federal crime, but a felony in the petitioner's state. The Fifth Circuit Court of Appeals ruled that the fact that the crime was a felony in the petitioner's state changes the federal crime from "simple possession" (a misdemeanor) to "drug trafficking" (an "aggravated felony"). The Fifth Circuit stands in opposition to the Second, Third, Sixth, and Ninth Circuits, which held that a state felony conviction does not create a federal felony "drug trafficking" crime. Lopez v. Gonzales puts this in the context of immigration laws, but the answer to Toledo-Flores will give us the answer to Lopez.

Next, we had Ayers v. Belmontes, which asks the court to look into the legality of California's practice of considering a defendant's background and character as "mitigating factors" for sentencing purposes. (E.g., if Johnny committed a violent crime, but the court learned that he had been abused as a child, his sentence might be brought down from life to 30 years.)

These cases are boring. But hopefully we might see some warrantless wiretapping action going on later in the term.

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Last week, the U.S. House of Representatives passed H.R. 6166, the Military Commissions Act of 2006. A poster at Boing Boing earlier today linked to an article claiming that the bill does a number of things that it does not, in fact, do. While the legislation contains a number of questionable provisions, as one Boing Boing reader noted, "[I]f we start fighting it with false and misrepresented claims about its provisions, we'll look stupid from the start, and our arguments will just be dismissed an non-applicable."

What does this thing do?

By and large, it amends Chapter 47 of Title 10, U.S.C., known as the Uniform Code of Military Justice (UCMJ). These are the laws under which the military governs itself and tries its accused criminals. H.R. 6166 would create a subchapter, Chapter 47A, governing the military trials of suspected terrorists.

Immediately, the legislation defines an "unlawful enemy combatant" to potentially include even U.S. citizens. U.S. citizens accused of terrorist could be summarily stripped of their Constitutional rights and tried as though they did not have Constitutional guarantees (which they still would).

If H.R. 6166 defines "unlawful enemy combatant," then what is a "lawful enemy combatant"? It's any member of any state-organized armed force. Apparently, it's now illegal for civilians to engage in combat. By refusing to recognize terrorists as engaging in war per se, the Bush administration can avoid some of the nasty requirements of the Geneva Conventions of 1949.

What rights, then, does an "unlawful enemy combatant" have under the Geneva Conventions? Apparently, none. Under § 949b(2)(g), "No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights." Oops. Because the Geneva Conventions were for armies, not civilians, so it looks like you're out of luck.

H.R. 6166 also makes the president the authority on interpreting international treaties:

As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

Huh? He has Constitutional authority to "intrepret the meaning and application" of treaties now? Apparently, this is culled from the sentence in the Constitution in Art. II, § 2 that gives the president the authority "to make treaties." But, as with the line-item veto, this is a dicey area. The president's line-item veto authority is nill, since the Constitution specifies that he may either "sign it" into law or "return it" to the house it came from. So, too, does the president lack the authority to do anything but "make" treaties. Sure, he can enter into treaties -- with the advice and consent of the Senate, of course -- but after that, does he have the authority to interpret them? A treaty approved by the president and the Senate becomes the law of the land, on par with the Constitution in terms of weight. And only one group of people is qualified to interpret the Constitution.

But what about the allegations from prisonplanet.com's Alex Jones and Paul Joseph Watson (which is the Boing Boing link I spoke of)? The article mentions all of the criticisms I leveled above. Then it introduces new ones that aren't so true. "[T]he bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court," the authors say, referring specifically to § 950j.

H.R. 6166 does no such thing. While it does shut out future detainees from ever filing habeas suits again, it does not "criminalize" challenges to the legislation. To "criminalize" would mean "to render illegal" and thus permit the arrest of someone who might be trying to challenge the legislation in court. § 950j merely spells out that no court -- including the Supreme Court -- has jurisdiction to hear complaints about the legality of the legislation or the resulting findings of the military courts (except as provided later in the chapter; the legislation does permit suspects to appeal their cases to appellate tribunals, as well as the Supreme Court). If any court received a complaint about this legislation, men in black vans wouldn't arrest the petitioner; they would throw the case out due to a lack of jurisdiction.

"A change of the definition of 'pillaging' which turns all illegal occupation of property and all theft into terrorism. This makes squatters and petty thieves enemy combatants"? Not so much. Read the beginning of § 950v(b)(5): the provisions of this legislation don't apply to any old person, only to "[a]ny person subject to this chapter." Regular Joe Squatter hanging out in the park or an abandoned building is not subject to a military tribunal; neither are "petty thieves." This law would have to go much further in order to create a military police state.

Questioning § 950v(26), Watson & Jones ask, "For an individual to hold an allegiance or duty to the United States they need to be a citizen of the United States. Why would a foreign terrorist have any allegiance to the United States to breach in the first place?" The section -- which criminalizes "knowingly[ly] and intentionally aid[ing] an enemy of the United States," applies -- again -- only to "[a]ny person subject to this chapter." It is also clearly designed to allow prosecution of defecting military or federal government officials under this chapter. This means that if a Defense Department employee -- who did have to take an oath of allegiance upon getting the job -- gives al-Qaeda top-secret information, he may be prosecuted as an "unlawful enemy combatant" under this section.

This legislation is a bad idea, but it's not a bad idea for reasons that Watson & Jones claim it is, and it is alarmist and disingenuous to criticize particular parts of this bill that, in fact, have no problems. Thankfully, though, the authors do get to the worst parts of the bill. Imagine if Bill O'Reilly or Sean Hannity got hold of this article? This would it up as a model for all anti-war, anti-Unitary Executive arguments.

Posted by Mark at 10:39 PM | Permalink | Comments (0) | TrackBacks (0)

Whoa, it's been a long time since I posted last!

WASHINGTON -- Sen. Arlen Specter (R-PA) has authored a bill that he hopes will be a compromise between some semblance of Congressional oversight and the Cheney administration's hopes of unbridled executive power. Specter and Cheney brokered a deal in smoke-filled rooms in which they agreed to hold hearings about the administration's illegal, poorly-justified, warrantless wiretapping program in the Judiciary Committee instead of the Intelligence Commitee in exchange for Specter's guarantee that then-Supreme Court nominee Samuel Alito would make it through the Judiciary Committee to the Senate floor.

At first, I thought, "Well, I suppose we have the lesser of two evils, here." I thought Specter was concerned about transparency, as hearings of the Intelligence Committee are often closed to everyone without a security clearance. Turns out it's about power: Specter wanted some leverage in Congress' increasingly one-sided relationship with the administration, which, through a variety of techniques, refuses to allow Congress to question it on any matters, including legislation that Congress passes in order to exercise its constitutional checks on the executive.

Nope. Turns out that Specter just wants Congress' power back, even if he has to screw the American people to get it. S. 2453, an as-yet unnamed bill, would retroactively legalize the president's warrantless wiretapping program, allowing the president to sidestep the provisions of the Foreign Intelligence Surveillance Act of 1978, which requires the president to obtain a warrant from a Foreign Intelligence Surveillance Court before he engages in any wiretapping that involves a caller located in the United States.

But the administration's argument that it needs warrantless wiretaps is bogus.

The administration's major argument in favor of warrantless wiretaps is that the FISA court doesn't move quickly enough for us to keep up with the terrorists, and that the process of obtaining a warrant apparently takes so long that by the time the warrant is issued we may no longer be able to surveil the terrorists. "We use FISA still -- you're referring to the FISA court in your question -- of course, we use FISAs. But FISA is for long-term monitoring. What is needed in order to protect the American people is the ability to move quickly to detect," said President Bush in a Dec. 19, 2005 press conference.

Unfortunately for the president, FISA does not require the president to obtain a warrant before initiating surveillance. 50 U.S.C. 1802 says that "the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" as long as the Attorney General follows several reporting requirements, one of which is that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." In other words, such spying must be between two people who are neither U.S. citizens nor U.S. nationals. This certification must be transmitted, under seal, to the Chief Justice of the U.S. Supreme Court and both the House and Senate Select Intelligence Committees. As far as we know, neither of these conditions has been met. President Bush claims that he's kept some members of Congress in the know about the wiretapping, but many members say that they never heard anything about it.

Also, FISA allows the president to begin to engage in warrantless wiretapping for a period of 72 hours before submitting a warrant application to the FISA court, whereupon the initial surveillance could be retroactively permitted.

Nevertheless, no application for a warrant has ever been submitted to the FISA court. President Bush has ignored the express intent of Congress -- as noted in FISA -- and in doing so has violated the law, which requires that he eventually obtain a warrant from the FISA court. Average citizens are not permitted to ignore the law whenever they feel it convenient; our president should be held to no less a standard. The president -- or his agents -- should be arrested for violating federal law and the justification that he has some sort of expanded powers in times of war should be evaluated by federal judges and put to sleep once and for all.

Additionally, the FISA court isn't very strict at all. Since 1978, when the court was created, it has outright rejected only four foreign intelligence surveillance applications out of thousands submitted between 1978 and 2005. Many applications are not rejected, but are instead amended by the FISA court judges, asking the submitters to modify parts of the application before it will be approved.

The FISA court is pretty much a done deal. Why, then, would the Bush administration want to bypass even such a rubber-stamp authority? Possibly Cheney felt that the activities of the program were so illegal that even the FISA court wouldn't approve them, and he couldn't risk details of the program's illegality being leaked to the public.

Now, Arlen Specter seeks to submit to his handlers and legalize warrantless wiretapping. The preamble to the legislation makes a big talk that keeping our nation safe is the responsibility of all three branches of government -- and then proceeds to exempt the executive from checks upon him by the judicial branch. It's as though the legislature and the executive are in cahoots to shut the judiciary (which is, coincidentally, the most independent branch of government) out of any decision-making, as the judiciary might actually challenge the executive's authority. And, hey, it's an election year: we can't have it appear as though the legislators are siding with the judiciary!

Here are some changes made to FISA by Specter's bill:

• Targets no longer have to be named "where it is not technically feasible to name every person or address every location to be subjected to electronic tracking." This is called a dragnet, and it comes from the way that fisherman used to drag giant nets under their boats to catch any fish they could. In law enforcement, a dragnet is an open invitation to surveil anyone who might be involved without naming names. In this way, the president no longer has to say that "X" is the subject of surveillance; he can surveil everyone and claim that "it is not technically feasible" to surveil everyone, and thus he is not subject to a warrant requirement. All the president has to do is create the situation governed by this section, and he will not need a warrant.
• If anyone objects to foreign intelligence surveillance, and demands review, then the case can be sent to the FISA court -- which is top-secret -- if the information under review would "harm the national security of the United States." This means that if the EFF wanted judicial review, the review would be completely blocked from public view if the president wanted it to be (and of course he would want it to be).
• Whereas FISA required that a "United States person" (a U.S. citizen or national) not be involved in the wiretapping, under Specter's amendments, a "United States person" is now subject to wiretapping if the Attorney General believes him to be "a person reasonably believed to have communication or be associated with a foreign power that is engaged in international terrorism activities."
• Language that only allowed the president to engage in international surveillance only as set forth in FISA has now been modified to give him the ability to engage in such surveillance under the guise of any law or his "Constitutional authority," which, as we have seen, has been interpreted very liberally by Cheney.
• Releases from criminal prosecution anyone who furnishes foreign intelligence information to the U.S. government, like, oh ... AT&T. (This same provision, though, exists in FISA now, but I guess they felt the need to reiterate it.)

While this bill doesn't remove the warrant requirement, it significantly degrades the standard of evidence for obtaining a warrant, and, more importantly, allows U.S. citizens and nationals to be the subject of electronic surveillance, something that was previously forbidden by FISA.

Posted by Mark at 12:37 PM | Permalink | Comments (0) | TrackBacks (0)

DETROIT -- Yesterday, U.S. District Court Judge Anna Diggs Taylor layed the smackdown on the Bush administration's illegal, warrantless, poorly-justified wiretapping program. In her 44-page opinion in the case ACLU, et al. v. NSA, et al., Judge Taylor granted the government's request for dismissal of certain "state secrets" evidence, but nevertheless said that the program itself was unconstitutional.

Judge Taylor also laid to rest the bogus "unitary executive" theory, which holds that the president has the last word in federal government matters -- above and beyond the objections of the legislative branch (and while, theoretically, the "unitary executive" would also be superior to the judicial branch, we have yet to see that in action). The "unitary executive" is in direct conflict with the Constitution's separation of powers doctrine, established in the delegation of different powers to each branch of government in three different articles. The unitary executive theory holds that the president is at once enforcer, author, and interpreter of the law: he acts as all three branches -- in total disregard of the Constitution.

The government's primary case in arguing for the unitary executive -- as it has with ACLU v. NSA -- has been Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), in which President Truman attempted to nationalize a striking metal-working company on national security grounds. The Supreme Court had a good laugh at that and totally rebuked Truman for attempting to exercise a power that was not his to exercise. Out of this case comes Justice Jackson's concurring opinion, the one that the government has used to justify encroachments of presidential power into other branches of government. Jackson laid out a model for instances in which presidential power might conflict with Congressional power, and in each instance, he theorized who should win each fight, and why:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

The government has repeatedly argued that the president's authority to engage in warrantless wiretapping comes directly from the post-September 11 "Authorization for the Use of Military Force" (AUMF). The AUMF, argues the government, through its "all necessary and appropriate force" clause, gives the president the authority to conduct warrantless wiretapping because he feels it to be "necessary and appropriate" for fighting terrorism. However, the government assumes that it is not in question that Congress authorized such a thing in its AUMF; indeed, the U.S. Supreme Court has taken steps to limit the scope of the president's power under the AUMF. In Hamdan v. Rumsfeld, 05-184, the Court ruled that ad hoc military tribunals were illegal because "[t]he military commission at issue is not expressly authorized by any congressional Act." In this sentence, the court dismissed a Bush argument that the AUMF implicitly granted him a power by requiring that the action in question by explicitly authorized. Judge Taylor agrees, observing that "this court must note that the AUMF says nothing whatsoever of intelligence or surveillance."

And, so, there is some issue as to where the president's powers currently lie within Justice Jackson's model. The government argues that the president has been acting pursuant to situation one, where the president has the authorization of Congress. The Supreme Court, and other federal courts, disagree. Judge Taylor believes that the president is currently living his life in situation three, as "[i]n this case, the President has acted, undisputedly, as FISA forbids [by failing to get a warrant or meet certain emergency surveillance requirements]. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained."

Also note that, to sustain its case that the president has supreme control of the world, the government is using a concurring opinion in a case in which the court decided that the president did not have the supreme authority to control the world. Yes, in Youngstown, the court ruled that President Truman lacked the authority to nationalize the Youngstown Sheet & Tube Co. They're really reaching, aren't they?

Judge Taylor is nobody's fool, and she gives the theory of the "unitary executive" the sound beating it deserves. This is as sexy as federal court opinions get:

Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. ...” Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.

Finally, although the Defendants have suggested the unconstitutionality of FISA, it appears to this court that that question is here irrelevant. Not only FISA, but the Constitution itself has been violated by the Executive’s TSP [the surveillance program]. As the court states in Falvey, even where statutes are not explicit, the requirements of the Fourth Amendment must still be met. And of course, the Zweibon opinion of Judge Skelly Wright plainly states that although many cases hold that the President’s power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements.

The argument that inherent powers justify the program here in litigation must fail.

And, so, Judge Taylor issued an injunction enjoining the government from engaging in its surveillance program. She ended her opinion with a beautiful afterword by Justice Earl Warren:

Implicit in the term "national defense" is the notion of defending those values and ideas which set this Nation apart. ... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the Nation worthwhile.

The government's reaction to the opinion was predictably bad. Attorney General Alberto Gonzales said that the opinion was a wrong one, and that the government would appeal the case to the Sixth Circuit Court of Appeals in Cincinnati (which has jurisidiction over federal court appeals in Ohio, Michigan, Kentucky, and Tennessee).

They should make bubble gum cards for federal court justices. "I'll trade you two James Whittemores for a Sandra Day O'Connor!"

Posted by Mark at 9:36 AM | Permalink | Comments (0) | TrackBacks (0)

From the very beginning of the illegal wiretapping case being brought by the Electronic Frontier Foundation (EFF) against the government and AT&T, both of the defendants have tried to get the case dismissed. The government wants the case dismissed because of state secrets and national security; AT&T wants the case dismissed because of trade secrets. Yesterday, in a 72-page decision, the U.S. District Court for the Northern District of California denied both the government's and AT&T's motions to dismiss.

What struck me as odd, though, is one of the justifications the government uses to bolster its claim that the wiretapping isn't illegal:

Additionally, the government contends that plaintiffs’ Fourth Amendment claim fails because no warrant is required for the alleged searches. In particular, the government contends that the executive has inherent constitutional authority to conduct warrantless searches for foreign intelligence purposes and that the warrant requirement does not apply here because this case involves “special needs” that go beyond a routine interest in law enforcement. [Citations removed, emphasis added.]

This is the government's official stance? That the executive has the constitutional equivalent of magic powers thar allow him to conduct searches without a warrant, in flagrant violation of the Fourth Amendment?! Some DOJ lawyer wrote this down, and his boss approved that? I thought the whole "the president has inherent constitutional authority that isn't explicitly mentioned, or even implicitly mentioned, but is there nonetheless, just trust us" was a public relations creation. But now it's being used as a legal justification? These people must have gone to law school at Patriot University.

Posted by Mark at 2:31 PM | Permalink | Comments (0) | TrackBacks (0)

With the failure of the gay marriage amendment and the flag-burning amendment, Republicans in Congress are in a bind: how can they show their constituency in the Religious Right that they care deeply about institutionalizing Christianity and making patriotism mandatory? And during an election year, nonetheless! Not even the Severed Head of Mussolini could think of a way out of this -- and we know that he's been consulted, as he lives in a safe in Dick Cheney's office.

The answer has come in the form of H.R. 2389, a bill that would prohibit federal courts from ruling on the issue of whether or not "under God" belongs in the Pledge of Allegiance. Congress' authority to limit what cases federal courts can hear comes from its power to establish courts as provided in Art. III § 1 of the Constitution. Art. III § 2 allows Congress to specify the Supreme Court's appellate jurisdiction.

Ah, yes! That's the posturing I was looking for! With any luck, the bill will be passed and the Religious Right will finally be appeased! And there's no way the courts can do anything about it! Except the D.C. Circuit Court, which was specifically exempted from this prohibition.

Oh, and guess what? This isn't just a proposed bill. This bill passed the House yesterday, 260-167, along mostly party lines. Now it's on to the Senate!

Posted by Mark at 11:25 AM | Permalink | Comments (0) | TrackBacks (0)

Last week's Hamdan v. Rumsfeld decision signaled the end of the Court's 2005 term. Terms typically last from October to June. This term, the court saw two new justices -- Chief Justice John Roberts and Associate Justice Samuel Alito -- added to the court. Both justices are decidedly conservative, and with the absence of Sandra Day O'Connor, the court has shifted to the right.

But Justice Anthony Kennedy -- a conservative -- has become the new "swing" vote, writing concurring opinions in 5-4 decisions in which the "liberal" point of view prevailed.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, wrote an op-ed for USA Today in which he summarized the effects of Roberts and Alito on the last term and observed that they "proved every bit as ideological in major cases as predicted."

More importantly, Turley noted that this term's decisions marked a significant -- and frightening -- shift in the court's thinking:

These votes reveal a new vision of our society emerging from the new conservative base of the court with Roberts and Alito. It is a society with few checks on the government except when it comes to environmental protection, private property, affirmative action, or religious practices. It is the very transformation that many wanted to discuss in the confirmation hearings but were blocked by the refusal of the nominees to answer questions and the refusal of senators to insist on such answers.

If Turley is correct, then the court's right-hand side has become the evil conservative enemy we've always feared: a monster that wants to invade our privacy, allow the state unrestricted access to our homes, declare what our religion should be, and at the same time insist that it is for "smaller government" -- at least, as far as checking large corporations. Government should be free to pry into our bedrooms and our minds; government should be free to tell us what we can and cannot choose to do in our personal lives, even if those decisions affect no one but ourselves; government should be allowed to imprison us indefinitely without stating that we've done anything wrong, as long as it justifies that detention with the T-word. Government should execute evil-doers, even if there's a possibility that the evil-doers are actually innocent -- but only because it would be wasteful to spend more money trying to figure out if someone it was going to execute was actually guilty.

Thankfully, many cases were decided correctly. Hamdan, for example, successfully -- but narrowly -- put a stop on the Bush administration's assertions of total, unquestionable power. Georgia v. Randolph upheld the Fourth Amendment even as Hudson v. Michigan took it away. Gonzales v. Oregon finally put an end to John Ashcroft's ridiculous litigation against Oregon's assisted-suicide law, deciding after five years that the Oregon statute was constitutional.

Things are not as bad as Turley paints them: right now, it's Alito, Scalia, Thomas, and Roberts staunchly on the right, and that's a minority. But it's only a minority by one vote, and it's less of a minority than existed before, when Sandra Day O'Connor wasn't sure to vote with the conservatives. We should not be terrified immediately, but we should be worried.

Posted by Mark at 1:53 PM | Permalink | Comments (1) | TrackBacks (0)

This just in! The Supreme Court ruled today that the Bush administration overstepped its bounds in instituting military tribunals for Guantánamo terror suspects (who were rounded up by civil authorities, not the military, and detained under civil law). Going even further, the Court said that Congress could not strip detainees of their rights of habeas corpus.

You'll recall that, in April, there were calls for Justice Scalia to recuse himself from the case, as he had made comments in a speech at the University of Freiburg in which he suggested that the Guantánamo detainees had no rights under the U.S. Constitution or international law.

Please read the court's opinion in Hamdan v. Rumsfeld, 05-184. The Court was divided along predictable lines, with The Usual Suspects (Scalia, Thomas, and newcomer Alito) siding with the government and everyone else siding With the Terrorists. Chief Justice Roberts properly recused himself from the case, as he had previously ruled on it when it was on appeal to the D.C. Circuit Court.

The Court was quite divided, with the majority issuing three concurring opinions in addition to the opinion of the court. All three dissenters each wrote separate dissenting opinions. Here were the court's findings:

1. The Court rejected the government's argument that, pursuant to the ludicrous Detainee Treatment Act of 2005, "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay,” and therefore, the Supreme Court did not have jurisdiction to rule on the Hamdan case. The law was clearly passed to prevent the Supreme Court from making this very ruling and ensuring that Guantánamo detainees would never, ever see the light of day. The one loophole in this law is that the Detainee Treatment Act did not apply to detainees who currently had a case on appeal, as was Hamdan's case.
2. The Court rejected the government's argument that Hamdan should be dismissed based on a case in which the Court previously ruled that federal courts should normally not intervene in military court martials. Kennedy apparently noted something that the government hoped the Court would overlook: the analogy "is inapt because Hamdan is not a service member." Oops!
3. The Court said -- in these words -- that "[t]he military commission at issue is not expressly authorized by any congressional Act." Woot! Now we have a precedent from the Supreme Court calling into question the specificity of Congress' authorization in 2001. While the Congressional resolution authorized the president to use any means within his power to stop terrorism, omission is not endorsement. In order for Congress to authorize the president to do something, it had to mention what it was they authorized him to do. In order for Congress to give the president a power, they must specifically mention the power. Giving the president some sort of broad, general power to do anything and then saying that that in itself was a justification is stupid and what the Court might call "over-broad." Expect this philosophy to be used in future court cases against the government, and rightly so.


4. The Court noted that, even if the military tribunals were authorized by the Authorization for the Use of Military Force, the structure and procedures of those tribunals "violate both the UCMJ and the four Geneva Conventions signed in 1949."

Whew! That's a lot of reasons why the Bush tribunals are illegal, and why the government's attempt to stop the Courts from regulating those tribunals ultimately failed in this case. So, what are the other justices saying?

• Justice Stevens, concurring with the opinion and joined by Justices Souter, Ginsburg, and Breyer, observe that the military tribunals are illegal because "[t]he Government has not charged Hamdan with an 'offense . . . that by the law of war may be tried by military commission.'" The government charged Hamdan with "conspiracy," which "has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war." Thus it is not appropriate to try Hamdan in a military court for an offense that the military would not try in a military court.
• These three justices agree that the procedures of the military tribunal violate international treaties, noting, "[t]he procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees."

No doubt the Republican Spin Machine will label these five justices as traitors, terrorist-lovers, and "activist" judges for daring to suggest that President Bush doesn't have the broad power he asserted he did under the AUMF. Now, let's see the court take on some more Bush overreaches.

Posted by Mark at 9:14 AM | Permalink | Comments (1) | TrackBacks (0)

Ned alerted me to a particularly ridiculous U.S. Supreme Court decision from last week, Buckeye Check Cashing, Inc. v. Cardegna, 04-1264 (2006). The case deals with contract law and arbitration clauses, which you might not think are relevant to you. But ask yourself: "Do I rent?" If you do, you signed a lease. A lease is a contract. Did the lease agreement contain illegal terms? Did it contain an arbitration clause? Maybe you should find out.

Petitioner Buckeye Check Cashing, Inc. is a Florida company that cashes your paycheck in advance and charges you exorbitant interest rates for doing so. Respondent Cardegna sued the company in Florida court, "alleging that Buckeye charged usurious interest rates and that the Agreement violated various Florida laws, rendering it criminal on its face." Usury is the word for charging outrageously high interest rates. It was a crime in the early Christian church, and it's still a civil crime today. Banks are not allowed to charge excessive interest rates, but the problem is that these check-cashing places aren't considered banks, and as such, aren't subject to the same usury laws that banks are. But that's a discussion for another day.

In contract law, if any term of the contract is illegal (e.g., your rental agreement requires you to sacrifice five virgins every month or pay a $1000 penalty, or to use Ned's more down-to-earth example, "breach of a lease resulting in liquidated damages equaling 2x monthly rent for the remainder of the contract’s term; requiring a tenant to pay for management’s attorney fees, etc."), then the entire contract is unenforceable. So, if the other party to the contract tried to take you to court, you could use as your defense the fact that the contract contains one or more illegal terms and thus the contract is void, and you are no longer obliged to adhere to the terms of the contract.

But Buckeye's contract was different: it contained an "arbitration clause." An arbitration clause says that if there's any dispute arising from the contract, the matter doesn't go to a civil court. Instead, it goes to an arbitrator. As Ned points out, this is a problem: "The problem is arbitrators do not employ the tenets of contract law, but rather make decisions in equity." This means that arbitrators will not concern themselves with whether or not a contract is void, or whether one party is completely in the right and the other completely in the wrong. "Equity" means that the arbitrator will not do what is legally correct, but rather, what is fair.

Buckeye filed a motion to compel arbitration at the trial court level. The trial court denied the motion, reasoning that if the dispute is whether or not a contract is illegal, then the dispute must be resolved by a court, even if the contract contains an arbitration clause. A state appellate court reversed that decision, but the Florida Supreme Court reversed the reversal. ("I remixed the remix. It was back to normal!")

But the U.S. Supreme Court reversed the Florida Supreme's Court's reversal of the reversal. Its reasoning was that "a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause within it, must go to the arbitrator, not the court." Apparently, the Court believes, even if the contract may be illegal, and the contract contains a term requiring arbitration, then the contract must still go to an arbitrator, even if the clause that requires arbitration might turn out not to be valid.

Does this make sense?

Apparently so, if you're a contract junkie. The Court used as support for its opinion Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), in which the Court ruled that an arbitration clause was "severable" from the rest of a contract. This means that an arbitration clause can never be voided, even if the rest of the contract is unenforceable. This is federal law. Justice Scalia, writing for a near-unanimous Court (Thomas dissented, O'Connor's opinion no longer counts, and Alito never heard the case), recounts the three tenets of arbitration established in Prima Paint:

First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts.

That's great, but Ned points out a problem: the person writing the contract can fill the contract with illegal terms, and as long as there's an arbitration clause, the contract will go to an arbitrator before it goes to a court. (Although, realistically, the arbitrator will probably judge the contract void, but there's always the possibility that he or she won't. This is unfair to the person signing the contract, who deserves to be treated according to the tenets of contract law, not hippie "equity.")

Thomas disagreed that the Federal Arbitration Act applies to state courts. This opinion (the Court's, that is) should be slightly alarming.

Posted by Mark at 10:31 AM | Permalink | Comments (0) | TrackBacks (0)

The Supreme Court ruled today that members of a Brazilian religion that involves drinking hallucinogenic tea are allowed to engage in their practice.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 04-1084 pitted the U.S. attorney general against a Brazilian church (abbreviated "UDV") that drinks hoasca, a hallucinogenic tea, as part of its religious rituals. A shipment of hoasca was seized by U.S. customs officials in 1999, as the active ingredient in hoasca, DMT, is classified as a Schedule I narcotic by the DEA. UDV filed suit against the government, alleging that confiscating the tea is a violation of the the Religious Freedom Restoration Act of 1993 (RFRA), which allowed members of the Native American Church to consume peyote as part of their religious rituals.

Lest you think the court is populated by crazy neo-cons who want to engage in a War on Drugs at all costs, prepare to be astounded: the Supreme Court ruled unanimously that the government was wrong to confiscate the hallucinogenic tea!

The opinion, written by Chief Justice Roberts, focuses mainly on the procedural issue of whether or not a lower court was right to issue an injunction against the federal government. An injunction is a court order that prevents someone from doing something while the legality of an action is being decided in court. In this case, a federal district court issued an injunction against the federal government, barring it from enforcing the Controlled Substances Act while the case was being decided, allowing members of UDV to use the DMT in their religious practices.

At issue was whether or not lower courts erred in issuing an injunction against the government. Roberts and the other members of the court agreed that the lower courts were correct, since UDV demonstrated a likelihood of success on the merits of the case.

Roberts and the court also dismissed the government's argument that "the Act's description of Schedule I substances as having 'a high potential for abuse,' 'no currently accepted medical use in treatment in the United States,' and 'a lack of accepted safety for use ... under medical supervision,' 21 U. S. C. §812(b)(1), by itself precludes any consideration of individualized exceptions such as that sought by the UDV," since exceptions have been made to the enforcement of the Controlled Substances Act regarding religious use of scheduled drugs.

So, maybe they're not that conservative, after all.

Posted by Mark at 12:25 PM | Permalink | Comments (0) | TrackBacks (0)

Judge Samuel A. Alito, Jr. will soon become Justice Alito at a swearing-in ceremony later today. Through a 58-42 vote, Alito became the next Supreme Court justice, replacing Sandra Day O'Connor. Democrats attempted a filibuster of Alito yesterday, but a bipartisan (!) vote ended it. Some Democrats voted to end the filibuster with the rationale that Alito was going to be confirmed, anyway, and the Senate has more pressing matters to attend to.

The Bush administration has fulfilled its promise to its Evangelical Protestant constitutents: it has moved the Supreme Court rightward. Additionally, any cases that Sandra Day O'Connor may have heard in oral arguments, but have not yet had opinions released, may need to be re-argued. O'Connor's vote no longer counts in cases where an opinion has not yet been issued.

Goodie.

Posted by Mark at 10:05 AM | Permalink | Comments (0) | TrackBacks (0)

Judge Samuel A. Alito, Jr. was approved by the Senate Judiciary Commitee and will now proceed to the full Senate for an up-or-down vote. The vote was along party lines, with the 10 Republicans on the committee voting for Alito and the 8 Democrats voting against.

But Alito presents many problems. One of them is his opinion of abortion, which has conveniently changed over the years. In 1985, he suggested that the Constitution doesn't protect a right to privacy. When asked the same question two weeks ago, he said that it definitely did. As a judge with the Third Circuit Court, Alito was the sole dissenter when the court struck down a Pennsylvania law requiring women to notify their husbands before having an abortion.

At Princeton University, Alito belonged to an organization that was opposed to letting more minorities and women into Princeton.

As a junior partner of the Reagan Justice Department, he helped craft the wrong-headed "unitary executive" interpretation of the Constitution, which says that the president is more powerful than the legislature or the judiciary.

When he first applied for the job on the Third Circuit Court, Alito was asked if he had any conflicts of interest in which he might have to recuse himself. He mentioned that some of his money was being managed by Vanguard, an investment/securities company, and that he would recuse himself if Vanguard were a party to any case heard by the Third Circuit. Vanguard was twice a party to cases heard by the Third Circuit and Alito didn't recuse himself in either case.

Bush is attempting to present Alito as "mainstream," though it is clear that his opinions are more radical than we are being led to believe. In a CNN/Gallup Poll conducted between Jan. 6 and Jan. 8, 53% of respondents identified themselves as "pro-choice." While not a huge majority, it's still a majority. (Although, if you're President Bush, it's a landslide!)

Posted by Mark at 10:35 AM | Permalink | Comments (2) | TrackBacks (0)

Yesterday, the Justice Department released its most detailed white paper yet [PDF] on the legal justification for warrantless electronic surveillance.

According to The New York Times, the document relies heavily on Congress' Sept. 14, 2001 resolution authorizing the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

The white paper also relies on the "unitary executive" interpretation of Article II of the Constitution. This interpretation is a relatively new school of thought that says that the executive is the most powerful branch of government, more so than the legislature or the judiciary, and if he needs to supercede those bodies -- especially in a time of war -- then he is justified in doing so. This interpretation is flawed, because the Constitution makes no distinction about presidential powers in times of war; such an interpretation is invented by those who wish to justify great presidential powers. Like the legislature's powers, the executive's powers are enumerated, and if a power isn't listed specifically, then the executive doesn't have it. The only thing Article II says about war is, "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." It mentions nothing about presidential power being greater during time of war, and I believe that the writers of the Constitution intended it that way.

The white paper suggests that the president, "as Commander in Chief and sole organ for the Nation in foreign affairs," is allowed to conduct warrantless electronic surveillance in the name of "disrupt[ing] armed attacks on the United States." The white paper also misconstrues FISA. The paper claims that FISA "also contemplates that Congress may authorize such surveillance by a statute other than FISA," and the Sept. 2001 Authorization for Use of Military Force (AUMF) is just such a statute, and thus, the surveillance is being conducted under the authority of AUMF by way of FISA. Except, that's not what FISA says. While FISA says it is a criminal act if a person "engages in electronic surveillance under color of law except as authorized by statute," FISA also says that the president can only engage in warrantless surveillance in three specific instances "notwithstanding any other law" (emphasis mine). "Notwithstanding" means "despite." In regular English, the sentences reads, "Despite what any other law might say, the president may only engage in warrantless electronic surveillance blah blah blah." 18 U.S.C. 2511(2)(f) also says that "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted." Note the words "exclusive means." Meaning that there is no lawful procedure for conducting domestic surveillance outside of the procedures set forth in chapter 119 or chapter 121 of Title 18 or FISA. Was that clear enough? FISA is in conflict with the AUMF, and as the older law, FISA wins, unless AUMF specifically amended FISA to include an exception, which it didn't.

The white paper also relies on a Supreme Court interpretation of the president as the "sole organ" of the nation's foreign affairs. But foreign affairs aren't the issue, here. No one is suggesting that the president doesn't have the authority to conduct wholly foreign surveillance. Even FISA says that wholly foreign surveillance is fine. What isn't fine and what the argument is really about is the president's authority to conduct domestic surveillance or surveillance that involves "United States persons." That's where FISA comes in. The president's foreign authority is not at issue; rather, his authority to spy on Americans or people residing in America is at issue.

And yet the Bush administration touts its ability to be above the law. In this week's Time, Andrew Sullivan discusses the implications of presidential "signing statements," which are little statements the president can add to legislation as he signs it. This president is using them to put in writing how he will choose to enforce a particular law, and how he might make exemptions for himself or others. For example, he signed into law a bill containing John McCain's anti-torture amendment. However, at the end, Bush added a stipulation: "The executive branch shall construe Title X in Division A of this Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent witrh the constitutional limitations on the judicial power." Sullivan replies:

Translation: if the President believes torture is warranted to protect the country, he'll violate the law and authorize torture. If the courts try to stop him, he'll ignore them too. This wasn't quibbling or spinning. Like the old English kings who insisted that Parliament could not tell them what to do, Bush all but declared himself above a law he signed. One professor who specializes in this constitutional area, Philip J. Cooper of Portland State University in Oregon, has described the power grabs as "breathtaking."

Sullivan later reveals that Samuel Alito, as a member of Reagan's Justice Department, invented the "unitary executive" interpretation in 1986. He suggested in a memorandum that the president has just as much control over legislation as the legislature, "[s]ince the president's approval is just as important as that of the House or Senate."

If it ever gets to the Supreme Court, I'm relatively confident that the court would rule the same as it did for the line-item veto under Clinton: unconstitutional. The Constitution says the president can either sign a bill or veto it. He is not given the power to veto just the parts he dislikes, and he is not given the power to alter a bill in any way. The Constitution is quite clear on this issue -- so clear that it is the first sentence of Article I: "All legislative powers herein granted shall be vested in a Congress of the United States." Not given fifty-fifty to the president and Congress. All of the legislative power belongs to Congress. Altering a bill so as to change its scope and enforcement is altering the legislation, and the executive has no such authority. The "unitary executive" has no basis in the Constitution and was fabricate