Archive for May, 2010
Elena Kagan, Super Tuesday, Tea Parties, Guns
Just as Tuesday’s primary elections were good news for libertarians, they were bad news for Elena Kagan. Now that Arlen Specter (D-R-D-PA) will never again face an electorate, we will be able to see his true colors, whatever they are – this should be interesting! — on the Senate Judiciary Committee. Blanche Lincoln (D-AR), assuming she wins her June 8 primary run-off (having to tack left to do so), will be a possible vote against Kagan so she can show skeptical Arkansans that she’s not an Obama-Reid-Pelosi rubber stamp. And Rand Paul’s trouncing of establishment candidate Trey Grayson in the Republican primary should strike fear into the hearts of all senators running for re-election this fall (or even 2012) such that they refuse to accept pablum from a judicial nominee’s testimony.
The above races, combined even more notably with Scott Brown’s victory in Massachusetts in January, reinforce that voters are upset with Washington and they ain’t gonna take it any more. Put simply, this fall’s election is shaping up to be a repeat of 1994 — except now we have protesters, the Tea Party movement, actively opposing every type of government expansion, bloat, and “stimulus” emanating from the federal government. Elena Kagan will still get confirmed but she will face tough questions about the limits on government power; a 59-seat majority is nothing to sneeze at, but her confirmation margin is eroding every day.
Turning to one aspect of Kagan’s record that will get some attention in coming weeks, Ken Klukowski of the American Civil Rights Union argues that the nominee “confirms that President Obama’s gun-control agenda is to create a Supreme Court that will ‘reinterpret’ the Second Amendment until that amendment means nothing at all.” Now, even though Ken and I have tangled before, I have no doubt that Obama is not the best president ever for the defense of the natural right to keep and bear arms for self-defense. Still, Ken’s claim here that Kagan’s decision not to file a brief on behalf of the United States in McDonald v. City of Chicago indicates that she is anti-gun rights is specious.
Doug Kendall of the Constitutional Accountability Center — a progressive group that nevertheless has the intellectual integrity to support the application of the right to keep and bear arms via the Privileges or Immunities Clause — has a detailed refutation to these allegations:
As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense. It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.
As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.
From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.
On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case. As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.” Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.
General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.
In short, as Josh Blackman says, Kagan had plenty of reasons not to file a brief in McDonald and her decision not to says absolutely nothing about her views on the right to keep and bear arms. Again, I have no doubt that Elena Kagan, being a standard modern liberal, is no friend of the Second Amendment. But the evidence Ken Klukowski purports to marshal is no evidence at all.
Federal Spending Transparency: Unlocking the Power of Abstraction
I’ll present a short paper and lead some discussion on federal spending transparency today at an OMB Watch conference entitled “Strengthening Federal Spending Transparency: A Working Conference to Develop a Plan of Action.”
My paper is called “Federal Spending Transparency: Unlocking the Power of Abstraction.” It builds on lessons I learned from developing the Earmarkdata.org model aimed at getting earmark information out of Congress.
Information scientists will find the paper amateurish and riddled with imperfections. Policy people will find it obscure and dense. That’s what you get when you translate between two languages and cultures.
The goal:
Each piece of the policy making process—the budgets, bills, votes, etc.—should originate as structured data, feeding directly into the information infrastructure that the transparency community creates. A budget should come out not just in paper and PDF versions, but as a data set containing all the meaning that exists in the physical documents.
Make sense? If not, you’ll want to get yourself to where it does.
The Lieberman-Brown Bill and Your Right to Stay out of Gitmo
The attempted Times Square bombing prompted Senators Joseph Lieberman (I-CT) and Scott Brown (R-MA) to propose that anyone suspected of providing material support, as defined by 18 U.S.C. § 2339A, to State Department-listed terrorist groups be stripped of their citizenship. As Julian Sanchez points out, existing law provides for expatriation for a number of reasons, but in two distinct categories. The first is for actions that demonstrate intent to relinquish citizenship: swearing loyalty to another nation, serving in a foreign military as an officer or non-commissioned officer (or in any capacity if that country is at war with the United States), formal renunciation before a diplomatic official, and similar actions. The second is for serious crimes against national security: treason, rebellion, insurrection, advocating the overthrow of the government, seditious conspiracy, and levying war against the United States.
As Julian and I point out in this piece at Politico, there is a key difference between the existing expatriation provision and the Lieberman-Brown proposal.
The existing expatriation capacity triggers, if at all, after conviction for listed crimes against national security. The Lieberman-Brown proposal would strip citizenship where there is an allegation of material support to a Foreign Terrorist Organization.
With this very important distinction, it is clear that the Lieberman-Brown bill does not merely update expatriation law for the 21st century. I discuss some of the low points of this legislation in this podcast:
This bill is an end-run around the jurisdictional limitation of the military commissions. After expatriation, a former citizen could be shipped off to Guantanamo for trial by a panel of military officers for a domestic crime. This is a step that the Bush administration never took. The military commissions, from the original executive order through the Military Commissions Acts of 2006 and 2009, are limited in jurisdiction to non-citizens. This is an attempt to take terrorism prosecutions out of civilian federal courts, which already effectively deal with domestic terrorism, and put defendants in a forum where they will have fewer rights.
What if the defendant is expatriated by a preponderance of the evidence (51% sure that they provided material support to an FTO) but are acquitted at the commission? Now we have the possibility of a natural-born non-citizen, who, unlike the traditional expatriation subject, has no other nationality to fall back on.
This procedure won’t pass constitutional muster anyway, as David Cole points out. Citizenship cannot be stripped so lightly against a person’s will.
In short, this is an ineffectual political stunt that aspires to be a radical threat to civil liberties. This proposal shouldn’t become law.
Collecting Dots and Connecting Dots
As Jeff Stein notes over at the Washington Post, the declassified summary of the Senate Intelligence Committee’s report on the Christmas underpants bomber ought to sound awfully familiar to anyone who thumbed through the 9/11 Commission’s massive analysis of intelligence failures. Of the 14 points of failure identified by the Senate, one pertains to a failure of surveillance acquisition: the understandably vague claim that NSA “did not pursue potential collection opportunities,” which it’s impossible to really evaluate without more information. (Marc Ambinder tries to fill in some of the gaps at The Atlantic.) The other 13 echo that old refrain: Lots of data points, nobody managing to connect them. Problems included myopic analysis—folks looking at Yemen focused on regionally-directed threats—sluggish information dissemination, misconfigured computers, and simple failure to act on information already in hand.
Yet you’ll notice that in the wake of such failures, the political response tends to be heavily weighted toward finding ways to collect more dots. We hear calls for more surveillance cameras in our cities, more wiretapping with fewer restrictions, fancier scanners in the airport, fewer due process protections for captured suspects. Sometimes you’ll also see efforts to address the actual causes of intelligence failure, but they certainly don’t get the bulk of the attention. And little wonder! Structural problems internal to intelligence or law enforcement agencies, or failures of coordination between them, are a dry, wonky, and often secret business. The solutions are complicated, distinctly unsexy, and (crucially) don’t usually lend themselves to direct legislative amelioration—especially when Congress has already rolled out the big new coordinating entities that were supposed to solve these problems last time around.
But demands for more power and more collection and more visible gee-whiz technology? Well, those are simple. Those are things you can trumpet in a 700-word op-ed and brag about in press releases to your constituents. Those are things pundits and anchors can debate in without intimate knowledge of Miroesque DOJ org charts. In short, we end up talking about the things that are easy to talk about. We should not be under any illusions that this makes them good solutions to intel’s real problems. Hard as it is for pundits to sit silent or legislators to seem idle, sometimes the most vital reforms just don’t make for snazzy headlines.
The Ninth Circuit as a Denial of Service Attack on American Justice
The Supreme Court is expected to decide tomorrow whether to summarily overturn a Ninth Circuit Court ruling, hear an appeal of that ruling, or let the Ninth Circuit’s decision stand. The case involves Arizona’s k-12 scholarship tax credit program that helps families afford private schooling, which the Ninth Circuit found last year to violate the First Amendment.
Before the Ninth Circuit handed down its decision, I predicted that it would rule against the tax credit program, and that it would eventually be overturned by the Supreme Court. The first part of that prediction came to pass, and I still expect the second part to as well. For the reasons why SCOTUS will overturn the Ninth Circuit, see Cato’s brief in the case.
Ilya Shapiro (with whom I co-wrote that brief) draws attention today to a great column by George Will in which Will likens the Ninth Circuit to a “stimulus package” for the Supreme Court. It’s a funny analogy, but it’s too benign. It’s more accurate to see the Ninth Circuit as a Denial of Service Attack on American justice. A D.O.S. is a computer attack that prevents Internet surfers from accessing a particular website/server by flooding it with spurious requests. By failing to take Supreme Court precedents seriously, as the Ninth Circuit routinely does, it creates a torrent of ridiculous rulings that demand the Supreme Court’s attention, thereby preventing the nation’s highest court from taking other important cases.
If there is a way for SCOTUS to reprimand the Ninth Circuit for spuriously consuming the nation’s most important legal resources, it would be in the interest of justice for it to do so.
Libertarians Rejoice
Here’s a headline you don’t often see on election night:
Rand Paul Challenges the Establishments
In his Kentucky Republican primary victory speech last night, Rand Paul took a well-placed shot at one of the more repulsive props used by Beltway politicians:
“We have come to take our government back from the special interests who think that the federal government is their own personal ATM … from the politicians who bring us over-sized fake checks emblazoned with their signature as if it was their money to give.”
The comment immediately brought to mind a C@L blog I wrote in 2008 that criticized the Senate Minority Leader from Kentucky, Republican Mitch McConnell, for being a hypocrite when it comes to big government spending. I titled the post “The Bluegrass Porker” and included this picture:
That fellow on the right holding the fake, over-sized Treasury check is Mitch McConnell. Last night, Paul defeated McConnell’s hand-picked choice for the Republican nomination, Trey Grayson. Perfect.
I’d prefer to believe Paul’s victory last night was a repudiation of the GOP establishment as much as it was a repudiation of Washington in general. Popular discontent with the statist Democrat establishment in Washington is well recognized. But if Kentucky Republicans just signaled their displeasure with the statist Republican establishment, better days for liberty could be ahead.
Supreme Court Should Call Out Ninth Circuit in Education Case
Friend-of-Cato and 2010 Milton Friedman Prize Dinner keynote speaker George Will published an excellent column today about a case under review at the Supreme Court, Arizona Christian School Tuition Organization v. Winn:
The case concerns an Arizona school choice program that has been serving low- and middle-income families for 13 years. The state grants a tax credit to individuals who donate to nonprofit entities that award scholarships for children to attend private schools — including religious schools. Yes, here we go again.
The question — if a question that has been redundantly answered remains a real question — is whether this violates the First Amendment proscription of any measure amounting to government “establishment of religion.” The incorrigible 9th Circuit has declared Arizona’s program unconstitutional, even though there is no government involvement in any parent’s decision to use a scholarship at a religious school.
If this case hadn’t originated in a state within the Ninth Circuit’s jurisdiction, nobody would have heard about it because any other federal appellate court would probably have decided it correctly. Will correctly and convincingly argues for summary reversal — as our friends at the Institute for Justice, who represent the petitioners, request — because the Ninth Circuit’s decision ignores clear Supreme Court precedent allowing parents to choose how to direct state funds for their children’s education (to a sectarian school or otherwise):
So, [Chief Justice William] Rehnquist wrote [in 2002], public money “reaches religious schools only as a result of the genuine and independent choices of private individuals.” Therefore any “advancement of a religious mission” is merely “incidental” and confers “no imprimatur of state approval . . . on any particular religion, or on religion generally.” These standards had been developed in various prior cases.
Cato filed a brief in this case that I previously blogged about. And you can listen to Will’s Friedman Dinner address here. (Unrelatedly, if you still haven’t read his masterful Men at Work: The Craft of Baseball – which has sold many more copies than any of his political books — pick up the re-issued twentieth anniversary edition.)
Souder’s Departure
In case you haven’t heard, Rep. Mark Souder (R-Ind.) is departing Congress because of an extramarital affair with one of his staffers. His replacement can only improve Indiana’s Third District on drug policy and limited government (and here).
During the initial hearings on the creation of the Department of Homeland Security, Souder was one of two representatives (the other being former Rep. Benjamin Gilman (R-N.Y.)) stressing the need for DHS to get into the drug war business. Souder went so far as to compare drug use to chemical warfare: “more than 4,000 Americans die each year from drug abuse – at least the equivalent of a major terrorist attack.” Rep. Gilman went so far as to propose that the DEA fall under the DHS since, as anyone can see, its supervision of nearly two-dozen subordinate agencies isn’t enough. And drug dealer = terrorist. Clearly.
While it would be preferable for voters of his district to reject pork-barrel spending and the nonsensical drug war, this resignation is not lamentable.
The Use and Misuse of Foreign Law in U.S. Courts
On Tuesday I discussed the Supreme Court’s decision to strike down laws that allow juveniles to be sentenced to life without parole (LWOP) for non-homicide crimes. What concerns me here isn’t so much the morality or policy wisdom in applying such sentences — though Chief Justice Roberts makes some good policy points in his concurrence — or even the interpretation of what constitutes a “cruel and unusual punishment” — which I think Justice Kennedy mishandles in a confusing discussion of national consensuses.
No, the most troubling part of that case was the unfortunate reference to foreign authorities to support the Court’s interpretation of the Eighth Amendment. Justice Kennedy notes that juvenile LWOP has been “rejected the world over.” “The judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency,” he writes, “demonstrates that the court’s rationale has respected reasoning to support it.”
Justice Thomas, in his dissent, disputes Justice Kennedy’s math, noting that 11 countries allow the punishment. More importantly, “foreign laws and sentencing practices” are “irrelevant to the meaning of our Constitution.” He adds that most democracies around the world remain free to adopt the punishment should they wish to. “Starting today,” Thomas concludes, “ours can count itself among the few in which judicial decree prevents voters from making that choice.”
And that’s the crux of the matter: citing foreign law, using it to support a given reading of domestic law undermines democratic self-governance. The interpretation of the U.S. Constitution should depend on that document’s text, structure, and history, what it means in the context of the American polity. Even if a judge cares about ”evolving standards of decency” or invokes the “living Constitution,” it should be the updated standards in America that matter, or the opinions and values of modern Americans.
That is, federal judges derive their powers from the Constitution, which is a wholly American document. To the extent they use foreign extrinsic evidence to interpret this document, they are engaging in something — comparative law? social science? — that is not judging. It’s not a matter of being closed-minded or provincial — I actually enjoy reading comparative political research, and think our legislators and constitutional draftsmen engage in malpractice if they don’t use it — but, as Justice Thomas describes in Graham, the judicial role is different than the legislative or academic one.
Now, in practice U.S. courts actually rarely cite foreign law, and most of the time when they do it’s not controversial. For example, it’s relevant to see how all the contracting parties interpret a treaty, because you want a treaty (a contract among nations) to be understood the same way everywhere. Similarly, foreign court pronouncements are relevant to interpreting customary international law – the law of nations as the Framers understood it — to the limited extent it applies to a given case (crime on the high seas and the like). Next we have the coordination of litigation, with international companies suing each other based on contracts that specify that “X” provision is subject to British law whereas “Y” deals with Hong Kong law, and that the arbitration forum is supposed to be Switzerland: here the citation of foreign law is absolutely appropriate. Another appropriate use is in conflict of laws analysis: figuring out which law applies and sometimes even applying foreign law as binding in a dispute.
But using foreign law to interpret domestic law, and especially the Constitution, is problematic — but the Supreme Court does it more than lower courts, particularly in high profile cases: those involving the culture wars, moral issues like the death penalty and abortion, and other charged cases like affirmative action and sex discrimination. Libertarians should not welcome this trend because it signals judging based on something other than the principled reading of our own laws — in short, judicial usurpation of the policy-making function.
Hans Bader of CEI provides a longer write-up of Graham, and here again is Cato’s brief. For a pithy critique of the improper use of foreign law by U.S. courts, see Richard Posner’s now-famous article in Legal Affairs. And for an in-depth and entertaining exploration of these issues, read or watch a debate Justices Scalia and Breyer had in 2005.
Coincidentally, the same day the Court issued both Graham and Comstock (which I discuss here), it also decided an important case, Abbott v. Abbott, that uses foreign law to interpret an international treaty on child abduction. (While I haven’t yet gone through the Abbott decision, both the majority and dissent are correct to use foreign law to help them reach their conclusions.)
Neocons Finish Out of the Money in Kentucky Race
Rand Paul’s landslide victory in the Kentucky Republican primary is being hailed as a big win for the Tea Party movement, a slap in the face to the Republican establishment, and maybe even as a harbinger of the rise of libertarian Republicanism. (Only 19 percent of Kentucky Republicans say they’re libertarians, but that’s got to be more than before the Rand Paul campaign.) It’s also a big loss for Washington neoconservatives, who warned in dire terms about the horrors of a Paul victory.
Back in March, Jonathan Martin reported in Politico:
Recognizing the threat, a well-connected former aide to Vice President Dick Cheney convened a conference call last week between Grayson and a group of leading national security conservatives to sound the alarm about Paul.
“On foreign policy, [global war on terror], Gitmo, Afghanistan, Rand Paul is NOT one of us,” Cesar Conda wrote in an e-mail to figures such as Liz Cheney, William Kristol, Robert Kagan, Dan Senor and Marc Thiessen.
With an attached memo on Paul’s noninterventionist positions, Conda concluded: “It is our hope that you can help us get the word out about Rand Paul’s troubling and dangerous views on foreign policy.”
In an interview, Conda noted that Paul once advocated for closing down the detention center at Guantanamo Bay and sending some suspected terrorists to the front lines in Afghanistan.
“This guy could become our Republican senator from Kentucky?” he exclaimed. “It’s very alarming.”
A week later, Dick Cheney himself issued his first endorsement of the campaign season to Secretary of State Trey Grayson, hardly the most promising Republican candidate of 2010. Obviously, Cheney was urging Kentuckians not to vote for Rand Paul.
David Frum kept up the pressure on his website and in national magazines, where he tossed around words like “extremist,” “conspiracy monger,” and “his father’s more notorious positions.” (That column also included the most amazing confession of political error I’ve ever seen: “many of my friends fell (briefly) victim to Lyndon Larouche’s mad ideology, which exploited those good themes to bad ends.” Say what? I never knew anyone who fell for Lyndon Larouche; I never even heard of any actual person who followed him; but David Frum had “many friends” who became followers of the nuttiest guy ever to run for president? That’s some band of friends.)
The big-government Republican establishment rallied to Grayson’s side against the previously unknown opthalmologist from Bowling Green. Late in the campaign, Grayson ran ads featuring endorsements from Senate Minority Leader Mitch McConnell of Kentucky, Cheney, Rick Santorum, and Rudy Giuliani. That’s more raw tonnage of Republican heavyweights than you’d see on a national convention stage.
And after all that Kentucky Republicans gave a 25-point victory to a first-time candidate who opposed bailouts, deficits, Obamacare, and the war in Iraq. That’s a sharp poke in the eye to the neocons who tried so hard to block him. They don’t want a prominent Republican who opposes this war and the next one, who will appeal to American weariness with war and big government. They don’t want other elected Republicans — many of whom, according to some members of Congress, now regret the Iraq war — to start publicly backing away from perpetual interventionism.
There were plenty of winners tonight. But the big losers were the neoconservatives, who failed to persuade the Republican voters of Kentucky that wars and bailouts are essential for national progress.
Collecting Your DNA—Not Controversial
That’s why the House of Representatives has put “Katie’s Law” (H.R. 4614, the Katie Sepich Enhanced DNA Collection Act of 2010) on the “Suspension Calendar” today. That’s the procedure for considering non-controversial bills, giving them about 20 minutes of debate.
The bill would promote collection of DNA samples from people based simply on their arrest for certain crimes. Needless to say, being arrested is nothing close to conviction of a crime, at which time it might be fair to collect a person’s DNA for use as a powerful identifier in later criminal investigations. And if DNA evidence is relevant, let it be collected and used according to existing procedures.
But getting your DNA put in a database just because an investigator got you in his or her sights? It’s the reverse of “innocent until proven guilty.”
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