Author Archive
Gay Marriage Still Has an Uphill Climb
The right answer to the same-sex marriage question is to remove government from the marriage business altogether. That’s a legislative matter, however, and not something the courts should decree. Until then, because state and federal laws confer benefits based on marital status, the equal protection provisions of the Fifth and Fourteenth Amendments require that same-sex couples not be subject to discrimination in receipt of those benefits. But that issue was not addressed by the U.S. Court of Appeals in California—a state that permits gay unions and does not discriminate against such unions in conferring “marital” benefits. The specific issue the court decided was whether the label “marriage” could attach to heterosexual but not homosexual partnerships. Quite properly, the court ruled that it could not. That’s a narrow but important step in the right direction. But it does not settle the more significant question whether states may grant benefits to heterosexual couples while granting less or no benefits to homosexual couples.
In fact, there’s a negative aspect of the court’s ruling, which essentially declared Prop 8 unconstitutional because California went further than other states in allowing civil unions. The court held there’s no rational basis for allowing such unions but requiring that they carry a different label. That’s quite different from invoking the Equal Protection Clause to forbid a state from denying gays a right to the benefits of marriage. That issue didn’t arise because California grants such benefits to gays. Regrettably, other states may be dissuaded from following the California civil union model because their voters wish to limit the definition of “marriage” to exclude gays. In this instance, the better may become the enemy of the good.
Awlaki and Due Process
The administration argues that suspected al Qaida terrorists – even U.S. citizens – can be targeted for assassination because they either (a) pose an imminent threat or (b) are part of an enemy army; and (c) other governments are unwilling or unable to act. Although the Fifth Amendment ensures that persons not be denied due process, it’s unclear what process is “due” – especially when the person is a citizen. For example, a U.S. citizen who threatens hostages with imminent loss of life can be killed by law enforcement authorities. Similarly, an American who serves in a foreign army against which the United States is at war is plainly a legitimate target.
Moreover, under the Nationality Act, a citizen can lose his citizenship if he intends to do so (although intent can be inferred by actions) and he either (a) declares allegiance to a foreign state, (b) serves in a post requiring such a declaration, (c) serves in armed forces in combat with the United States, or (d) serves as an officer or NCO in the armed forces of a foreign state.
Still, the killing of Awlaki is a close legal call. On balance, it’s probably unlawful. The imminent-threat contention isn’t credible. To my knowledge, no one has identified a threat that is imminent (meaning: about to happen). The part-of-an-enemy-army claim and the loss-of-citizenship argument raise several questions: First, is the Nationality Act itself constitutional? The Constitution establishes criteria for citizenship. Stripping someone of citizenship effectively changes those criteria, and Congress may not have that power. Second, even if the Nationality Act is constitutional, does al Qaida qualify as a foreign state for purposes of the Act? Are al Qaida agents equivalent to soldiers engaged in combat with the United States? Third, even if the Nationality Act might apply in Awlaki’s case, how do we know that he triggered the provisions of the Act? Can the administration simply assert that he met one of the tests for loss of citizenship, or must there be some threshold process to make that determination?
Finally, the Authorization for the Use of Military Force sanctioned force against those involved in the 9/11 tragedy. Awlaki, although not directly involved, probably qualified as part of an “associated force”; but actions that might self-evidently be lawful if Awlaki were actively fighting on a battlefield are less so when he’s allegedly plotting attacks from Yemen.
All told, when U.S. citizens are targeted, I’d be more comfortable with somewhat more process – not a trial before an Article III court, of course, but perhaps the equivalent of an assassination warrant that required a non-executive-branch body with relevant expertise to certify sufficient cause. Anything less risks disrespect for the Constitution, which could have regrettable implications in other areas. The separation of powers doctrine, if it means anything, stands for the proposition that citizens cannot be killed on command of the executive branch alone, without regard to the Fourth and Fifth Amendments. Naturally, exceptions are justified for truly imminent threats. If I were convinced that involvement of another branch might result in Awlaki-types escaping punishment, I’d be more willing to invoke “emergency” powers – similar to hot pursuit – but not in this case.
Does PPACA’s Mandate ‘Carry into Execution’ the Commerce Power?
The Obama administration contends that its mandate to purchase health insurance is “necessary and proper” to effect PPACA’s comprehensive scheme of interstate health care regulation. The constitutional argument is two-part: First, the Commerce Clause empowers Congress to regulate interstate health care. Second, the Necessary & Proper Clause empowers Congress to implement health care regulation by directing individuals to acquire medical insurance or pay a penalty. The administration concedes that the underlying purpose of the mandate is to subsidize insurance companies so they can afford to cover pre-existing conditions, which PPACA commands.
Consider the text of the Necessary & Proper Clause. It authorizes Congress “To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States.” For example, Congress’s power to spend—which is not expressly mentioned in the Constitution—is necessary for carrying into execution numerous other powers that entail the expenditure of money. Also, the Supreme Court has determined that Congress’s power to regulate intrastate commerce may occasionally be necessary for carrying into execution Congress’s enumerated power “To regulate Commerce among the several States.” Similarly, Congress’s power to establish a federal penal system may be necessary for carrying into execution Congress’s enumerated power “To provide for the Punishment of counterfeiting” and certain other crimes.
All those implied powers are instrumental. They afford a means by which other express powers can be carried into execution. By contrast, PPACA’s health insurance mandate does not carry into execution any express power, including the Commerce Power to regulate interstate health care. Indeed, health care regulation—even with its requirement that insurers cover pre-existing conditions—could have been implemented without the mandate, in which case insurance companies would have been compelled to raise premiums, cut other costs, or accept lower profits.
Instead of carrying health care regulation into execution, the mandate is designed solely to produce a specified outcome for the benefit of private insurers—i.e., to subsidize insurers so they don’t have to raise premiums, cut other costs, or accept lower profits. In other words, the mandate is simply a cost distribution scheme: a policy judgment having nothing to do with facilitating execution and everything to do with who pays the bill. Because the mandate relates to outcome and not process, it cannot be prerequisite for carrying into execution the Commerce Power. Accordingly, it cannot be authorized under the Necessary & Proper Clause, the sole purpose of which is to carry other powers into execution.
Obama Same-Sex Order Right in Spirit, Wrong in Letter
President Obama has ordered the Department of Health and Human Services to craft new rules that would facilitate hospital visitation rights for same-sex couples and smooth the way for gays and lesbians to make medical decisions on behalf of their partners.
On public policy grounds, the president’s directive is indeed welcome. Two people who have joined in a long-term, committed, and mutually reinforcing relationship are entitled to equal treatment, regardless of sexual preference.
Regrettably, however, the president has exceeded his constitutional authority. His order to his health secretary is deficient in two respects:
First, the government is invoking its power to spend for Medicare and Medicaid, then demanding that all hospitals receiving such funds adopt the new rules. But there is no explicit power to spend in the Constitution. Despite the Supreme Court’s contrary pronouncements, spending is permitted only as a “necessary and proper” means to execute other enumerated powers. Quixotic though it might sound given post-New Deal jurisprudence, there is no enumerated power for the federal government to be engaged in providing health care to private citizens.
Second, the Constitution requires that “All legislative Powers … shall be vested in a Congress.” That means laws conferring benefits or imposing obligations on private parties are supposed to be passed by the legislature, not the executive. Yes, the Court has condoned delegations of legislative authority for a vast array of programs, but that merely reinforces the need to interpret the Constitution as it was originally understood.
What the FISA Court of Review Said and Didn’t Say
After a quick read of the FISA Court of Review’s latest opinion on NSA wiretaps (In Re: Directives) …
Essentially, the Court affirmed that the Protect America Act was constitutional as applied to a particular telecom company. More specifically, the Court held: (1) A warrant might impose unreasonable delay. There’s a “special needs” exception to the warrant requirement for foreign intelligence targeted at a person reasonably believed to be outside the US. (2) The “reasonableness” requirement of the 4th Amendment was not violated. National security trumps the privacy right of targets even without a court-reviewed determination of the purpose, target, and particularity of the search. Executive branch review of those items, along with minimization procedures, provided sufficient safeguards.
Notably, the Court did not address the original NSA warrantless surveillance program, which covered communications between US persons in the US and persons outside the US, regardless of the target’s location. Moreover, the Court’s holding was constitutional, not statutory. No one challenged whether the NSA was complying with the terms of the Protect America Act. The issue was whether that Act was itself constitutional, as applied. Recall that my principal concern regarding the original NSA program was whether the executive branch had unilaterally adopted procedures that Congress had either not approved or expressly rejected. It was the Youngstown paradigm that the executive branch had offended, even if the original NSA program might have passed constitutional muster had it been enacted by Congress. Nothing in the Court’s latest opinion is contrary to that assessment of the original program.
It’s also worth noting that the Protect America Act was replaced by the FISA Amendments of 2008, which requires, among other things, an individualized probable cause determination by the FISA court to surveil US persons outside the US. In other words, the Court’s latest opinion addresses an act that, first, has been superseded and, second, was deemed by Congress to be unwise as a policy matter even if it survived constitutional scrutiny.
Response to Professor Barron’s Critique of “The Dirty Dozen”
Prior commitments prevented me from participating with Professor David Barron in the Cato / American Constitution Society forum on The Dirty Dozen, which I co-authored with William Mellor. I’m especially gratified, therefore, to have this second opportunity, which I will use to document seven errors by Professor Barron in his blog postings here and here. Of course, the best and most complete rebuttal is the book itself, available for the shamefully low price of $17.13 at Amazon.
Barron #1: “The crime of the Supreme Court since the 1930s, so says this book, has been its refusal to lock in the laissez faire constitutional philosophy that reigned supreme in the decades leading up to the New Deal.”
Facts: Laissez faire is never mentioned in the book – not once. Included among our 12 worst cases are those involving the non-delegation doctrine, campaign finance regulation, gun owners’ rights, civil liberties, civil asset forfeiture, and racial preferences – none of which has anything to do with laissez faire economics. Yes, we also cover cases relating to property, contract, and other economic liberties; but to suggest that we view the Court’s major crime as not upholding laissez faire is to ignore most of our book.
Barron #2: “Number one on The Dirty Dozen’s hit list is Helvering v. Davis … because it upheld Social Security on a broad theory of federal spending and taxing power.” Moreover, Helvering’s “interpretation of the General Welfare Clause is not inconsistent with original understanding because there was no clear understanding on that point during the Founding. Madison had one view, Hamilton another.”
Not the Way America Is Supposed to Work
A Miami jury has convicted Jose Padilla of charges unrelated to those that were alleged when he was first incarcerated more than five years ago. Some will argue that the guilty verdict justifies Padilla’s characterization as an enemy combatant and his extended detention, incommunicado, without charges filed. Nothing could be further from the truth. Jose Padilla is a U.S. citizen, protected by the U.S. Constitution against unreasonable seizure and deprivation of liberty without due process. He was denied his rights.
In the case of suspected terrorists, the stakes are immense. So a powerful argument can be made for changing the rules to provide for preventive detention in narrowly defined circumstances. But if we do change the rules, the process cannot be unilateral − implemented by executive edict without either congressional or judicial input. And it cannot be law on-the-fly, with no knowledge of the rules by anyone other than the executive officials who are responsible for their enforcement. In the end, Padilla may have deserved the treatment he received, perhaps worse; but for those of us concerned about the rule of law, the Padilla episode is not the way America is supposed to work.
Does the Military Commission Act Apply to U.S. Citizens?
Legal scholars are debating whether the Military Commission Act [MCA], passed by Congress on September 29 and soon to be signed by President Bush, applies to U.S. citizens. The answer is more complicated than one would think.
First: Under Sec. 948a(1) an unlawful enemy combatant is “(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents …; or (ii) a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal….” Use of the word “person” suggests that citizens may be detained as unlawful combatants.
But second: Sec. 7(a) denies habeas rights only to aliens. Thus, a citizen who is detained as an unlawful combatant would appear to have habeas rights to challenge his detention.
Moreover, third: Sec. 948b states that “[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants.” In other words, only non-citizens may be tried by a military commission.
My conclusion: A citizen may be detained (subject to habeas challenge), but not tried, under the MCA.
NSA: Coda
Let me make two brief and (I hope) final points in response to Roger Pilon’s post of earlier today.
First, Roger asserts that the executive and legislative branches would not be “co-equal” if Congress is permitted “to restrict the president’s powers, as with FISA.” “Congress,” he adds, would then be “supreme, the president its mere agent.” Not true. Before any restrictive measure can become law, it must be passed by Congress and signed by the president. FISA was of course signed by President Carter. Neither successive presidents nor successive legislatures are required to re-validate previously enacted, unexpired statutes. Moreover, FISA was implicitly re-signed by George W. Bush, who helped craft the FISA amendments that are included within the PATRIOT Act and prescribe surveillance warrants.
Second, Roger notes that Congress can always avail itself of the “power of the purse … and simply cut off funds for projects.” My response is threefold: (1) A constitutional regime that would allow Congress to eliminate a project altogether, but not restrict a project, is quite simply incoherent — especially if the project arises, as Roger insists, out of an inherent presidential power. (2) The NSA surveillance program is secret to all but a few members of Congress. Accordingly, Congress might have to de-fund the entire NSA in order to pinpoint and de-fund one program, the scope and function of which is mostly unknown. (3) Even if Congress could de-fund the program itself, that would throw the baby out with the bathwater. Republicans and Democrats alike conjecture that much of the NSA program may be necessary and effective, albeit illegal, in combating terrorism. The responsible remedy is not to de-fund an essential program, but either to change its implementation to comply with the law, or change the law to authorize the program.
NSA Redux
In his latest posting, my colleague Roger Pilon restates several of his arguments in defense of the NSA’s warrantless domestic surveillance. Each of Roger’s points has been addressed in detail in our recent debate and in my Senate testimony. For those who prefer a nutshell version of my response, here it is:
Roger asks, “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government …?” I do not dispute that the president has inherent powers, especially during wartime. The question is not the existence, but rather the scope, of those powers. And because Congress too has wartime powers, an express restriction by Congress, like the FISA statute, is persuasive when deciding whether the president has overreached.
Indeed, the Constitution specifically authorizes Congress to shape the president’s inherent powers. Article I, section 8 empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
If, as Roger insists, warrantless domestic surveillance is incidental to the president’s inherent powers, so too are sneak-and-peek searches, roving wiretaps, library records searches, and national security letters — all of which were vigorously debated in deciding whether to reauthorize the Patriot Act. Could the president have proceeded with those activities even if they were not authorized by Congress? If so, what was the purpose of the debate? Why do we even need a Patriot Act?
President Bush has also asserted “inherent powers” to justify military tribunals without congressional authorization, secret CIA prisons, indefinite detention of U.S. citizens, enemy combatant declarations without hearings as required by the Geneva Conventions, and interrogation techniques that may have violated our treaty commitments banning torture. Are those activities outside the president’s wartime authority? If not, what are the bounds, if any, that constrain his conduct?
The animating sentiment at the time of the founding was fear of executive power — return of the king. Against that backdrop, it’s remarkable that the president, with Roger’s apparent approval, now claims to wield unilateral powers with no safeguards — in effect, an irrebuttable presumption of authority, unfettered by Congress or the courts, to do just about anything that he pleases in battling terrorists.
NSA Database II
The disclosure by USA Today that the NSA has another domestic surveillance database is no shocker. Yet the newly uncovered database includes only calling and receiving phone numbers, not the content of the conversations.
More ominous, when asked by Congress whether the NSA was monitoring the content of wholly domestic calls, Gonzales refused to rule out such surveillance. Indeed, from a policy rather than legal perspective, if it’s necessary and effective to monitor calls from, say, DC to Naples, Italy, then why not DC to Naples, Florida? If the NSA can disregard legal barriers because a communication might include information of foreign intelligence value, then monitoring domestic-to-domestic calls would seem no less justified than monitoring domestic-to-foreign calls.
When communications from and to a US person in the US are monitored, that’s domestic surveillance, no matter whether the party on the other end is inside or outside of the US. Since Bush believes that warrantless domestic surveillance is permissible regardless of FISA’s contrary provisions, we shouldn’t be surprised if the NSA has much more data (including content) than USA Today has uncovered.
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