Claiming that private schools in Milwaukee are discriminating against students with disabilities, the Department of Justice (DOJ) sent a letter to the Wisconsin Department of Public Instruction (DPI) demanding that private schools participating in the Milwaukee school choice program comply with Title II of the Americans With Disabilities Act. As Professor Patrick Wolf explains over at Education Next, the DOJ is wrong on the facts and wrong on the law.

Wolf is part of a team of researchers that has studied the Milwaukee school choice program over five years. Their statistical analysis “confirmed that no measure of student disadvantage—not disability status, not test scores, not income, not race—was statistically associated with whether or not an 8^th grade voucher student was or was not admitted to a 9^th grade voucher-receiving private school.” This is exactly what the law requires. Wisconsin law forbids discrimination on the basis of disability and requires schools participating in the voucher program to accept students on a random basis. 

Moreover, the DOJ is wrong on the law in treating private schools participating in the program as though they were government contractors. As Wolf explains:

Private organizations normally are exempt from Title II of ADA but the DOJ argues that the law applies to private schools in the MPCP because the government is contracting with them to provide a public service (the education of K-12 students). This claim flies in the face of the facts and case-law surrounding the program. The voucher program does not involve any contracts, of any kind, between any government organization and the participating private schools. Students need to meet certain eligibility restrictions to participate in the program, as do interested private schools. Once both are deemed eligible by the state, students choose schools and government funds flow to the private schools based on the choices families have made and consistent with the laws governing the program, not based on any “contract.” In fact, the Wisconsin State Statute that governs the MPCP, §119.23, is entirely separate from Wisconsin State Statute §119.235 entitled “Contracts with Private Schools and Agencies.” Nothing could make the point clearer that the MPCP is not a case of government contracting for education services.

Wolf suspects that the DOJ’s letter came as a result of the Wisconsin DPI’s report that 1.6 percent of choice students have a disability. Since the DPI is not authorized to collect that information, they estimated the number of students with disabilities using the number of choice students given accommodations on the state accountability exam. However, as Wolf explains, that is a highly flawed proxy since only a minority of students with disabilities are given such accommodations. Wolf’s team of researchers estimated that the number of choice students with disabilities between 7.5 and 14.6 percent, with their best estimate being 11.4 percent.

The DOJ’s overreach may be unsurprising in light of other recent scandals, but it also sets a terrible precedent. Parents choosing to use their vouchers at private educational institutions do not render those institutions “government contractors” any more than grocery stores become “government contractors” when citizens use their EBT cards to purchase food there. The Obama administration’s unlawful and misguided attempt to hamper school choice programs with additional red tape should be vigorously resisted.

Georgetown University’s Jennifer Daskal, and Stephen Vladeck, an associate dean in the College of Law at American University, have posted a working paper (.pdf) regarding the 12+ year old Authorization for Use of Military Force (AUMF) at the Lawfare blog that is receiving, and deserves, some attention. The shorter version in today’s New York Times is receiving even more attention, presumably.

“After the AUMF” is written, in part, as a response to a Hoover Institution proposal (.pdf) that would replace the existing AUMF with, as Daskal and Vladeck describe it, “a new blanket framework statute authorizing the use of military force against as-yet-undetermined future terrorist organizations, and to delegate to the Executive Branch the authority to delegate those organizations against which such force may be used if and when the time comes.”

The crux of the Daskal-Vladeck critique rests on their claim that such a framework is unnecessary, and, worse, counterproductive. They explain that we should be trying to end, rather than extend, the war on terror, and that existing authorities (including many that have expanded since 9/11) are more than sufficient to protect the country against terrorist attacks. Should those authorities prove insufficient in the future (for example, if an as-yet-unknown terrorist organization materializes and plots attacks against the United States), Congress would retain the ability to pass a new AUMF–and would likely do so quite quickly, if past history is any guide. Lastly, they claim that the war frame, in general, undermines the nation’s counterterrorism goals by engendering hostility and resistance across a broad spectrum, from innocent civilians to heads of nation states, who resist being drawn into a never-ending war.

Although I am broadly sympathetic with the idea that we should move away from thinking of counterterrorism as a war, thus demanding a military response (about which I have written book chapters here and here), I believe that the most important of the Daskal-Vladeck objections revolves around the Hoover proposal’s apparent disdain for Congress, and its willingness to grant more power to the Executive Branch. The Hoover proposal claims that this would be an improvement over the current system, because it would give “the president the flexibility he needs to address emerging threats” and would “render more transparent and regularized the now very murky process by which organizations and their members are deemed to fall within the September 2001 AUMF.”

Elsewhere the Hoover paper claims that such a blanket predelegation of authority is required because “Congress probably cannot or will not, on a continuing basis, authorize force quickly or robustly enough to meet the threat.”

Daskal and Vladeck disagree. They counter that “no examples exist of cases where Congress either could not or would not provide the necessary authority–or why, in the interim, the President’s Article II authorities, criminal law, and other existing counterterrorism authorities weren’t sufficient to meet the threat.” On the contrary, the Congress has consistently demonstrated the ability and willingness to authorize wars quite quickly (too quickly, some might say), including within three days of the 9/11 attacks, and within five days of the supposed attack in the Gulf of Tonkin in August 1964. Thus, Daskal and Vladeck conclude, if a new terrorist group “were to emerge, nothing would or should stop Congress from providing a new, narrow and specific authorization to use force.”

They continue, with emphasis:

Proposals to delegate such future—and momentous—decisions to the President lack any historical precedent, and for good reason. It is Congress, not the Executive, that is given the authority under our Constitution to declare war. An authorization to use military force…should not be an ex ante delegation to the President to make unreviewable decisions to go to war at some future date. This is something our Founding Fathers understood well. Thus, proposals to delegate such a determination to the President threaten the carefully calibrated balance of powers enmeshed within the Constitution, essentially asking Congress to surrender one of its most important functions to the Executive.

This is an important and interesting discussion, and one that should not reduce to the predictable partisanship in Washington today. Some liberal Democrats agree with conservative Republicans that the president should be given more powers; other liberals and conservatives are joined in opposition to such suggestions. This timely–indeed, overdue–assessment of the powers that exist, and will be needed in the future, to deal with terrorist threats should and will be getting more attention in the weeks and months ahead.

The Carol Anne Bond saga continues. Now in her second trip to the Supreme Court—and with Cato’s support for the fourth time—Bond is still hoping to avoid federal punishment stemming from her attempts to get back at her erstwhile best friend for having an affair with her husband.

Bond, a microbiologist, spread toxic chemicals on her friend’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement, however, a federal prosecutor reached into his bag of tricks and charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Yes, rather than being charged with attempted murder and the like, Bond is essentially accused of chemical warfare.

Bond challenged the federal government’s power to charge her with a crime, arguing that Congress lacks constitutional authority to pass general criminal statutes and cannot somehow acquire that authority through a treaty. Before a court could reach this issue, however, there was a question whether Bond could even make that argument under the Tenth Amendment, which reaffirms that any powers not delegated to Congress are reserved to the states or to the people. On Bond’s first trip to the Supreme Court, the Court unanimously accepted the argument, offered in an amicus brief by Cato and the Center for Constitutional Jurisprudence, that there’s no reason in constitutional structure or history that someone can’t use the Tenth Amendment to challenge the constitutionality of the statute under which she was convicted.

On remand to the Philadelphia-based U.S Court of Appeals for the Third Circuit, and now with standing to challenge that law, Bond raised the argument that Congress’s limited and enumerated powers cannot be increased by treaties. We again filed in that case in support of Bond. The Third Circuit disagreed, however—if reluctantly—based on one sentence written by Justice Oliver Wendell Holmes in the 1920 case of Missouri v. Holland, which has been interpreted to mean that treaties can indeed expand Congress’s powers. With Cato supporting her bid to return to the Supreme Court on that treaty power question, Bond’s case reached the high court.

Now, in a brief authored by professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence, the Atlantic Legal Foundation, and former attorney general Edwin Meese III—in what we hope will be our final filing in the case—we argue that a treaty cannot give Congress the constitutional authority to charge Bond. Allowing Congress to broaden its powers via treaties is an astounding manner in which to interpret a document that creates a federal government of limited powers.

Not only would this mean that the president has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating previously valid treaties—thus removing the constitutional authority from certain laws. This perverse result makes Missouri v. Holland a doctrinal anomaly that the Court must either overrule or clarify. We also point out how the most influential argument supporting Holland is based on a clear misreading of constitutional history that has been repeated without question.

Although Holland is nearly 100 years old, there is thus no reason to adhere to a precedent that is not only blatantly incorrect, but could severely threaten our system of government. We’re in a constitutional quagmire with respect to the treaty power, one that can only be escaped by limiting or overturning Missouri v. Holland.

The Supreme Court will hear oral arguments in Bond v. United States in October.