Topic: Law and Civil Liberties

Christian Toleration

I’ve just seen an interesting new book, The Choice Principle: The Biblical Case for Legal Toleration, by Andy G. Olree, who is a graduate of the University of Chicago Law School, where he studied under Richard Epstein and Michael McConnell, and now teaches law at Faulkner University’s Jones School of Law. The book presents an evangelical Christian argument for a legal framework that tolerates most “sinful” choices by individuals.

Olree writes, “The Choice Principle posits that Christians are called to influence law and government in ways that maximize opportunities for human freedom of choice–that is, for individual autonomy.” And he applies that principle in ways that might surprise critics of the religious right, to issues ranging from prostitution and homosexuality to Social Security.

He criticizes Roy Moore, Jerry Falwell, Pat Robertson, and James Dobson as “fearmongers” who “simplistically reduce complex societal problems to…the age-old struggle of good versus evil.” But he also takes on more academically serious defenses of enforced morality, devoting an entire chapter to a critique of Princeton professor Robert George’s book Making Men Moral.

Christians and libertarians could learn a lot about each other from reading this book. Or to be more careful with my language: Christian libertarians will find this book an effective presentation of a principle they likely agree with. Non-Christian libertarians and non-libertarian evangelical Christians will find it a provocative challenge.

It’s Not about Same-Sex Marriage

The lead headline in the Washington Post on Tuesday reads “53% of Voters Say They Back Va. Same-Sex Marriage Ban.” Slate’s “Today’s Papers,” reporting on that story, says it shows that “Virginia voters [are] supporting a ban on gay marriage.” Washington’s public-radio WAMU refers to the upcoming vote as “the proposed ban on gay marriage.”

All these journalists are doing the supporters’ work for them. Bans on gay marriage have passed everywhere they’ve been placed on the ballot. That’s what the supporters of the Virginia amendment want voters to think they’re voting on. But that’s not what the Virginia amendment really does.

Same-sex marriage is already prohibited in Virginia, and there’s no prospect of legislative or judicial change in that fact. So this amendment is touted as banning something that is already banned.

The real impact of the amendment can be seen in its second sentence:

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. [emphasis added]

It’s not just about same-sex couples, and it’s not just about marriage. The law firm of Arnold & Porter analyzed [pdf] the amendment and concluded:

the [proposed Virginia] Amendment could be interpreted by Virginia courts to have the following effects:

  • Invalidate rights and protections currently provided to unmarried couples under Virginia’s domestic violence laws;
  • Undermine private employers’ efforts to attract top employees to Virginia by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits; and
  • Prevent the courts from enforcing –

– private agreements between unmarried couples,
– child custody and visitation rights, and
– end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: “This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state.”

Journalists should not call this “the proposed amendment to ban same-sex marriage.” Rather, they should give readers and listeners a more accurate summary, along the lines of “the proposed amendment to restrict gay rights” or “the amendment on unmarried couples.”

Specter’s Signing Statement Bill

Whilst buried by my Cato Supreme Court Review duties, I missed an opportunity to weigh in on the summer blog debate over presidential signing statements (i.e., the president’s practice of announcing how a bill will be interpreted by the executive branch).

My general views track Marty Lederman, Walter Dellinger, et al.’s analysis in this post, which concludes that most common complaints about signing statements are overblown.

There is one problem that Lederman et al. don’t mention: the risk that courts will defer to signing statements when the law is ambiguous. Currently, the Court gives deference to agencies’ interpretation of ambiguous laws, under a narrow set of conditions set out in cases like United States v. Mead. In Mead, the Court underscored that judicial deference to the executive is controlled by Congress. Courts defer to the executive when the law is unclear based on a background assumption — a legal fiction, really — that this deference is what Congress wants when it passes an ambiguous law. 

The Court has never decided whether the president deserves the same deference as the agencies under his control. Courts certainly won’t give any deference to presidential constitutional interpretations, just as they don’t give deference to the constitutional interpretations of agencies. But it’s possible that future courts might defer to some nonconstitutional signing statements, and the explosion of signing statements in this administration suggests the president is perhaps making a bid for recognition of some such future deference. If that bid is successful, the president’s interpretation would act as a kind of “super-legislative” history, trumping competing legislative history by members of Congress when the text of a law is unclear.

Under Mead, Congress has the power to command courts not to defer to signing statements. Sen. Arlen Specter (R-Pa.) has introduced a bill to do just that and, if this were all the bill did, it would deserve the support of all who care about maintaining a balance of power between the president and Congress. Unfortunately, the bill is saddled with some additional provisions that are constitutionally problematic.

Here’s what these additional portions of the bill say:

SEC. 5. CONGRESSIONAL STANDING TO OBTAIN DECLARATORY JUDGMENT.

Any court of the United States, upon the filing of an appropriate pleading by the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, may declare the legality of any presidential signing statement, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

SEC. 6. CONGRESSIONAL RIGHT TO INTERVENE OR SUBMIT CLARIFYING RESOLUTION.

(a) Notice to Congress- In any action, suit, or proceeding in the Supreme Court of the United States, wherein the construction or constitutionality of any Act of Congress in which a presidential signing statement was issued, the Supreme Court shall certify such fact to the Office of Senate Legal Counsel and to the Office of General Counsel for the United States House of Representatives.

(b) Congressional Right To Intervene- In any suit referenced in subsection (a), the Supreme Court shall permit the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of the Act’s construction and/or constitutionality. The United States Senate and House of Representatives shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

(c) Congressional Right To Submit Clarifying Resolution- In any suit referenced in subsection (a), the full Congress may pass a concurrent resolution declaring its view of the proper interpretation of the Act of Congress at issue, clarifying Congress’s intent, and/or clarifying Congress’s findings of fact. If Congress does pass such a concurrent resolution, the Supreme Court shall permit the United States Congress, through the Office of Senate Legal Counsel, to submit that resolution into the record of the case as a matter of right.’.

Ironically, these provisions are far more constitutionally problematic than the signing statement itself. There are three ways to read these portions of the bill:

First, Specter’s bill might be read to invite judicial deference to Congress’s post-enactment interpretations, when introduced into the record by Senate leg counsel, as the word “clarifying” may suggest.    

Second, perhaps the bill’s provisions are protective, allowing Congress to defeat executive reliance on presidential signing statements very quickly, shutting off the window of opportunity created by lengthy delays in private litigation.

Or perhaps, finally, the bill is simply designed to allow Congress a say in court, leaving courts free to treat Congress’s views as they wish, much as they can consider a law review article or amicus brief.

The first interpretation is clearly problematic under cases like INS v. Chadha and Bowsher v. Synar, which hold that Congress can’t assign itself, or its subsets, the power to issue controlling interpretations of laws it passes. Intepretation is an executive and judicial function, not a legislative one. Therefore, Congress cannot delegate to itself the power to issue authoritative interpretations of unclear laws. If it disagrees with the way a law is implemented, its recourse is to clarify its intent by passing a new law. Bowsher v. Synar, 478 U.S. 714, 733 (1986). A necessary corollary is that Congress’s clarifying resolutions deserve no judicial deference.

Perhaps it might be argued that a bicameral resolution endorsing a signing statment would meet the requirements of bicameralism and presentment outlined in Article I, Section 7 of the Constitution, in effect amending the bill. But presentment envisons an order of decisionmaking in which Congress initiates a statutory amendment, presenting it, in turn, to the president — an order of proceeding that restrains the creation of new law, since it is more difficult for Congress to act swiftly.

The second and third interpretations are less clearly problematic as a matter of first principles, but they raise separation of powers problems under current caselaw. They arguably assign an executive power — the power to represent the general legal interests of the United States in the proper enforcement of the law, as opposed to concrete interests of a house or member of Congress in legislative rights and privileges — to Article I legal counsel who are removable entirely at the discretion of Congress, something Bowsher says is a no-no. Moreover, and relatedly, after Raines v. Byrd, it’s hard to see how Congress can grant its own counsel “party” status in litigation without violating the case or controversy requirement of Article III, since Congress has no concrete stake other than its general interest, shared with the public, in the proper interpretation of the laws. 

I’m sympathetic to the Specter bill’s goal — to cut off the signing statement as a wedge for expanding executive power — but it’s on strongest ground in its simple command to courts to ignore presidential signing statements. 

Robberies in the Capital

Today’s Washington Post has a front page story on robberies in the District of Columbia.

The District of Columbia has one of the strictest gun control laws in the United States. And the old saw about gun control is that when guns are outlawed, only outlaws will have guns. (Important loopholes: The mayor has his own armed security detail and so do other government employees.)

On this map of the city, the red dots indicate robberies where the criminal brandished a gun against the victim. Query: Is the city’s gun control policy helping the people or the criminals?

Go here for Cato material on gun control. To learn more about a constitutional challenge to DC’s gun control law, go here.

ONDCP’s Smoke and Mirrors

Bruce Mirken of the Marijuana Policy Project sends along video of Office of National Drug Control Policy (ONDCP) chief John Walters openly boasting about using federal tax dollars to defeat Question 7, a Nevada ballot initiative that would effectively legalize possession of up to one ounce of marijuana for personal use. 

Walter’s mere presence in the state to speak against the initiative seems to violate the Hatch Act,  not to mention his use of federal dollars to organize against it. Unfortunately, the Office of Special Counsel seems to have made a gaping “drug war exception” to the act, despite the fact that what Walters is doing seems to be in direct defiance of the plain language of the law.

Violation or no, Walters’ and ONDCP’s interference in a state election is yet another example of the Bush administration’s utter contempt for federalism. This administration’s definition of the term seems to be, “the states should be able to set their own policy, except when we disagree with them.”

Notice, too, that even if we were to accept that the social maladies Walters says “correlate” with marijuana use (a relationship that has zero scientific value, and thus oughtn’t even enter into policy discussions), most are caused by the drug’s prohibition, not its recreational use.

Enemy Combatants

Glenn Greenwald has a good post on the latest developments in the Jose Padilla case.

By way of background, President Bush has claimed the power to arrest any person in the world and to lock that person up indefinitely without a trial.  So long as Bush issues an “enemy combatant” order to his Secretary of Defense and not his Attorney General, the imprisonment is supposedly legal because Bush is acting as the Commander-in-Chief during a time of war. Most Americans are probably unaware that Bush believes that he can use the same powers here in the USA.  He has already done so.  That’s what the Jose Padilla case is all about and it is why the legal community follows it so closely.  A legal precedent is being set here.

Padilla is the American citizen who was apprehended at Chicago’s O’Hare airport.  The feds locked him up as an “enemy combatant” for some three years and just a few months ago they moved him to civilian court to face criminal charges in Florida.  Now that Padilla is out of the hole of solitary confinement, we are starting to learn for the first time what went on at the Naval brig during the years that he was held there incommmunicado.  The legal filings by Padilla’s lawyers are disturbing–stress positions, sleep deprivation, etc. (A word of caution: To my knowledge, Padilla’s lawyers are making allegations.  We do not yet know if the government disputes the allegations in whole or in part.  Greenwald is correct to point out that Congress recently approved such interrogation tactics against prisoners.)

Why does this matter?  Well, whatever one’s view on the propriety of our government’s policies concerning the wartime capture and treatment of non-citizens overseas, most everyone will agree that if we are serious about limited government, we must keep an eye on potential overreaching here at home.  Liberty in America rests upon a system of checks and balances.  The police can arrest us at any moment, but the judiciary can “check” lawless police actions fairly quickly.

Mr. Bush (and his successors) can now bypass the judiciary by simply issuing an “enemy combatant” order.  That means the liberty of every American rests upon nothing more than the grace of the White House (actually lower level bureaucrats).  Some may shrug and say “This is war.  Captured terrorists don’t belong in fancy hotels.  Heck, some harmless drug offenders might be raped or stabbed in a U.S. prison.” 

True enough, but isn’t that like saying “Yes, the casualties are mounting in Iraq, but so what.  Didn’t ya know the U.S. lost 6,821 Marines at Iwo Jima, a single battle?”  My point is that we ought to be careful about how we intend to assess the actions of the government.  Let’s strive to keep the government limited and to minimize casualties, mistakes, and injustices.

Fukuyama on Secrecy: Read the Whole Thing

A few days ago, the New York Times ran a piece by Francis Fukuyama called “The American Way of Secrecy” [registration required] in which he deftly interweaves the twin scourges of threat exaggeration and secrecy.  He also recites the damage they have done to U.S. foreign policy, national security, and domestic tranquility.  No one quote captures this rich, brief essay, so I will indulge in a blogger cop-out and encourage you to read the whole thing.

(HT: Bruce Schneier)