Topic: Law and Civil Liberties

Roberts and Pro-Executive Minimalism

Over the weekend, L.A. Times Supreme Court reporter David Savage criticized John Roberts for breaking his pledge to be a minimalist judge, pointing to the Chief’s votes with the “conservative” majority in Gonzales v. Oregon and Rapanos v. United States as evidence of his hypocrisy. Ilya Somin and Orin Kerr critique Savage here and here. Ilya, in particular, makes a good point:

Roberts[’] position in Rapanos was that the Corps has very broad discretion under the CWA’s grant of power to regulate discharges into “navigable waters,” but not the power to assert what he rightly called virtually “boundless” regulatory authority. The Corps had claimed the right to regulate virtually any body of water, no matter how small, remote, or nonnavigable, and had persisted in this stance in the face of an adverse Supreme Court decision. No broad assertions of judicial power here.

[H]is positions were hardly contrary to “judicial modesty.” Indeed, in my view, a stronger criticism of Roberts’ performance is that he was too deferential to assertions of federal authority in both cases, particularly Oregon.

See my recent short piece, and earlier blog post, on Roberts’ Rapanos concurrence here for more in that vein.

The confusion points out that “judicial minimalism” can mean different things. Here are just two (of several) possible meanings:

  1. Minimalism could mean protecting expectations created by current precedent, or current understanding of precedent, by reading new, potentially revolutionary decisions, like Raich, narrowly rather than broadly. In fact, Cato’s amicus brief in Gonzales v. Oregon tried to portray a vote for Oregon as a minimalist decision in this sense, arguing that Raich should be read as narrowly as possible in order to protect the pre-Raich expectation of states.
  2. Minimalism could be read to mean that courts should displace democratic politics, rather than floating “expectation interests,” as little as possible, by deciding “no more than is necessary,” leaving as much of a class of questions implicated by the case as possible to democratic judgment. This is much closer to what Roberts appears to believe, and his votes in both Oregon and Rapanos are consistent with this version—carving out as much room for a (federal) political response to the problem as possible.

Notably, though, even if you accepted version two, you could reach a pro-state outcome. Again, Cato’s amicus brief tried to make such a connection by portraying a narrow reading of Raich in that case as a reading favoring the decisionmakers with the superior democratic pedigree—that is, Oregon voters who, by direct referendum, had voted for legalizing assisted dying (twice). Even if agencies have a greater democratic pedigree than courts, state referenda have a far better democratic pedigree than the rulings of federal agencies.

The upshot is that minimalism is an indeterminate concept, less a theory of judging than a mood or intuition whose outcome depends on unexpressed background preferences. Oregon suggests that Roberts’ operative background preference is to preserve the flexibility of agencies under executive control by weighting their interests more than competing state interests when the law is open-textured. Perhaps, this might be called a kind of pro-executive minimalism.

Harpers Denounce Border Plan, ID Systems

A prominent Harper spoke out this week against the plan to require passports or passport-‘lite’ ID cards for crossing the U.S.-Canada border. That’s Canadian Prime Minister Stephen Harper. 

He is no relation to the Cato Institute’s director of information policy studies, Jim Harper, who spoke out about the Western Hemisphere Travel Initiative’s PASS card system two weeks ago

The Western Hemisphere Travel Initiative (WHTI) sounds like a wonderful thing. It’s hard to be against travel. But WHTI is actually about shrinking commerce and travel among the friendly countries in our region.

In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress pushed the Department of Homeland Security to create an “automated biometric entry and exit data system” for people crossing the borders. A prominent proposal is the PASS card, which stands for People Access Security Service. It is envisioned as a card containing an RFID chip that is to be given to passport holders. The chip would alert the DHS when a person arrives at a border crossing. 

“Pre-positioning” data by sending an electronic signal from 30 or more feet sounds like it would make border crossings go faster. But moving identification data is not what takes time at border crossings — it’s checking to see if the person and the identity information match up. 

An RFID-chipped PASS card would mean that lots more information about American citizens’ movements would be collected. It’s a system not just verifying that travelers are citizens or legal aliens — it’s a system for collecting information about our comings and goings, yet another dimension of our lives revealed to the government to do with as it will.

Congress seems held in thrall by national ID systems. Last week, the House passed a bill to require showing identification cards for voting. And, of course, we already have the REAL ID Act, which by May 2008 will have states issuing drivers’ licenses and ID cards to national standards (sharing driver information nationwide, too) — if states comply. Harper of the Cato Institute testified to a New Mexico legislative committee about that issue last week. The National Conference of State Legislatures reports that compliance with the REAL ID Act will cost $11 billion dollars nationwide.

Identification seems to offer an easy technological quick-fix for ailments like illegal immigration and terrorism. But what most of these schemes would do is further regiment and control law-abiding people while merely inconveninencing criminals, terrorists, and any other threat with a modicum of sophistication and motivation.

My book Identity Crisis has more on this and all other facets of identification.

All Wet

For wetlands and Commerce Clause groupies, I have a short piece published in the Environmental Law Institute’s National Wetlands Newsletter analyzing the impact of last term’s wetlands-meets-federalism decision, Rapanos v. United States, here. While every critic of the case singles out Justice Kennedy for criticism, I aim equal ire at the failings of Chief Justice Roberts’ short, and equally problematic, concurrence.

Islam and Enlightenment

Let me start by saying that I was not and am not a supporter of the Iraq war, and personally I’m an old-fashioned skeptic about religion. But I was appalled to hear Seyyed Hossein Nasr, a leading Islamic scholar, declare on an NPR interview show on Tuesday that the Pope’s statements “themselves are acts of violence.”

Interviewer Diane Rehm wanted to make sure what she’d heard. She asked him, “You’re saying that the language itself is an act of violence?” “Of course it is,” Nasr replied. Discussing the violent reaction to the Pope’s quotation, he declared, “He who uses the sword shall perish by the sword.”

Later in the show, Rehm read a quotation from a column by Anne Applebaum, who wrote that westerners of all political stripes “can all unite in our support for freedom of speech - surely the Pope is allowed to quote from medieval texts - and of the press. And we can also unite, loudly, in our condemnation of violent, unprovoked attacks on churches, embassies and elderly nuns.”

Asked for his reaction, Nasr said that such violence was “not unprovoked–it is provoked.” “Because words are violence?” asked Rehm. “Of course,” replied Nasr, “of course.”

I want to be careful not to pick out obscure members or adherents of any philosophy and draw large conclusions from them. But Nasr is not so obscure. He’s a distinguished professor at a leading American university. He holds a Ph.D. in the history of science and philosophy from Harvard and is the author of more than 20 books, from publishers including Oxford University Press. His university held a conference honoring him, titled Beacon of Knowledge. The website of the Seyyed Hossein Nasr Foundation declares him “one of the most important and foremost scholars of Islamic, religious and comparative studies in the world today.” So it seems fair to say that Nasr is not an oddity; he’s a recognized Islamic scholar.

And that’s why it’s so shocking to hear the claim that words “are acts of violence” from such a distinguished scholar. A scholar, we might note, who teaches at George Washington University, named in honor of the great Enlightenment statesman. I don’t want to believe that we are faced with a clash of civilizations, much less World War III. But if Islamic scholars who teach at great American universities believe that violent attacks “on churches, embassies and elderly nuns” are “provoked” by the words of a religious leader in a university speech a thousand miles away, then we certainly have a clash of world views.

The west went through the wars of religion and emerged with a modern understanding of toleration. We have learned through bitter experience that we can worship God without forcing everyone else to worship in the same way. We allow our neighbors to practice their religion, we practice our own or none at all, we criticize views we deem unsound, and we accept that our own views and faith will also be subject to criticism.

What we forswear is violence in response to words. In the present crisis we should seek peaceful dialogue between Muslims and Christians, not to mention Jews and freethinkers and all the others who share our world. But we who live in Enlightenment societies should not apologize for the fact that freedom of thought and freedom of speech sometimes lead to hurtful words.

Instead, we should reaffirm our own commitment to free speech - “hate speech” laws, anyone? - and urge Muslims to appreciate the benefits of liberal values, such as liberty and prosperity and social harmony. And we should hold Muslim leaders to the same standards we expect of western leaders, both civil and religious: we expect them to condemn, yes, “unprovoked” violence.

Cross-posted from Comment is free.

The President’s Prerogative to Torture

Tom Palmer links to this truly remarkable clip of a recent presidential press conference.  In it, David Gregory asks the president what his reaction would be if a US operative were captured in Iran or North Korea and subjected to the type of treatment the administration is currently arguing for.  The response is typical Bushian avoidance and obfuscation, but the president over and over makes one point that I think is totally wrongheaded.

He repeats (I’m paraphrasing) that “you cannot ask a young intelligence officer to violate the law.  They will not violate the law…And that’s why we need to clarify and codify [our new] Common Article 3 interpretation so that officers have a defined standard to go by.”

The answer, of course, had nothing to do with the question, but I think President Bush isn’t making sense here.  Bush is trying to play to the ”ticking nuke” scenario that we’ve heard so much about.  (Whenever somebody starts with an absurd hypothetical and then starts reasoning backward in order to make policy, you know you’re in trouble.)

Mark Bowden, author of Black Hawk Down, took up this issue in the Wall Street Journal the last time the president was trying to defend torture.  Bowden argues that apropos of John McCain’s last attempt to pass a law prohibiting American torture (successful, but arguably negated by a signing statement from Bush)

Cruel treatment of prisoners is already banned. It is prohibited by military law and by America’s international agreements. American citizens are protected by the Constitution. I see no harm in reiterating our national revulsion for it, and maybe adding even a redundant layer of legal verbiage will help redress the damage done to our country by pictures from Abu Ghraib and reports of widespread prisoner abuses in Iraq and Afghanistan.

But Bowden got to the bottom line about torture, too, without any doe-eyed illusions about the nature of war:

The point the White House is missing here is that even with important captives like Khalid Sheikh Mohammad, official authorization for severe interrogation is not necessary. Just as there is no way to draw a clear line between coercion and torture, there is no way to define, a priori, circumstances that justify harsh treatment. Any attempt to codify it unleashes the sadists and leads to widespread abuse. Interrogators who choose coercive methods would, and should, be breaking the rules.

That does not mean that they should always be taken to task. Prosecution and punishment remains an executive decision, and just as there are legal justifications for murder, there are times when coercion is demonstrably the right thing to do.

That, it seems to me, is an essential point, and totally runs against Bush’s current protestations.  The president is arguing that, in the ticking time bomb scenario, the intelligence officer will just stand there, twiddling his thumbs and waiting for the Sears Tower to implode, because he doesn’t have preauthorization to slap around the terrorist.

That’s absurd.  People commit murder in extreme circumstances, and they have the chance to explain the extreme circumstances in a process of law.  Sometimes the circumstances are so extreme that they’re exonerated.  The point is that most murders don’t occur under such extreme circumstances, and you want the law to govern the broadest possible swath of situations.  The guy who beat up the terrorist–in contravention of the law–and in so doing defused the ticking time bomb and saved Chicago is going to be a national hero, should that ever happen.  No judge would convict him, no president would refuse to pardon him, and it’s hard to believe there’d even be much international outrage.

But Bush’s approach is to assume a lifeboat ethics hypothetical, and then reason backward to make the law.  (Bush even concedes during the interview that as to an intel officer in the ticking time bomb scenario, ”I know nobody’s gonna prosecute ‘em.”)

Bush should worry less that an intelligence officer is going to sit on his hands and watch the time bomb tick, and worry more about what writing torture into law would do for everyday interrogations.

ACLU Sues to Limit Educational Liberty in AZ

Arizona passed a series of new school choice bills this June, and the ACLU has now filed suit to stop one of them from being implemented. For more than six years, individual Arizonan taxpayers have been able to claim a dollar-for-dollar tax credit on donations they make to private Scholarship Granting Organizations (SGOs). The SGOs, in turn, help families to pay tuition at the independent school of their choice. The recent bill that the ACLU is challenging extends that donation tax credit to businesses as well as individuals.

On what grounds does the ACLU claim to oppose this policy, you ask? They assert that “it violates state constitutional provisions prohibiting public funding for religious schools and mandating that the state provide a general and uniform public school system.”

The first objection is not likely to hold water, given that the AZ Supreme Court already ruled, in Kotterman v. Killian, that tax credits do not constitute public funding.

The second challenge is more interesting, having been inspired by the astonishingly inventive Florida Supreme Court ruling that struck down that state’s A+ voucher program early this year. Will foes of educational freedom find this argument a winner in AZ? Not knowing much about the AZ Justices, it’s hard to say. The argument certainly did not work with Wisconsin’s Supreme Court when it was used against Milwaukee’s voucher program during the 1990s.

What’s most interesting about all this is, however, is not the details of the legal arguments but the fact that opponents have been reduced to arguing about such minutia. In states where school choice programs are established and running, they tend to be very popular with the families who are able to participate. Hence, opponents find it hard to convince people that choice is bad – they have to try to show that some legal “i” has gone undotted to have any hope of herding the public back into state monopoly schools. In the Florida case, the plaintiffs openly acknowledged that the success of the voucher program was utterly immaterial to their argument.

Opponents of school choice don’t care whether or not educational liberty helps families. They are ideologically wedded to the status quo monopoly and will seek to preserve it by any means necessary.

How this benefits the American people, or advances “civil liberties,” I really can’t imagine.

The Blunt End of Paternalism

Kudos to both the Washington Times and North Dakota state GOP Rep. Jim Kaspar for opposing the Republican Congress’s wrongheaded attempt to ban Internet gambling. There are at least a few folks on the right who still understand that there’s more to “limited government” than revoking the estate tax.

Sen. Frist is justifying his misguided, pre-election move on the grounds that it’s the government’s responsibility to protect us from bad behavior. Said Frist on the floor of the Senate, “Internet gambling threatens our families by bringing addictive behavior right into our living rooms.”

At risk of delving into libertarian cliches, even if you buy the dubious notion that protecting us from “addictive behavior” is a legitimate function of government, even the most well-intentioned of paternalistic legislation is, ultimately, enforced at the point of a gun. The people who break these laws are arrested. The people who resist arrest risk getting shot. The end of result of legislation like Frist’s is, absurdly, that government will eventually use violence against American citizens to “protect” them from violating Sen. Bill Frist’s morals.

Here’s a real-world example: At last week’s forum for my Overkill paper, I met Salvatore and Anita Culosi, parents of Sal Culosi, the Fairfax, Virginia optometrist shot and killed by a SWAT team earlier this year. The SWAT team came to Culosi’s home to enforce Virginia’s prohibition on gambling, ostensibly designed to “protect” Virginians like Sal Culosi from wagering their own money on games of chance. Culosi, an accomplished, single man who had the means to back up his wagers, had been placing bets on football games with friends. He’s dead because there are people in Virginia’s government who fail to see the absurdity of sending a military unit to arrest a man guilty of nothing more than spending his own money in ways some people find unseemly. That’s it.

Culosi’s family is still understandably devastated. Mrs. Culosi still can’t talk about her son without fighting back tears. I choked up several times just listening to her. I can’t imagine the rage that would come with losing an adult son to such a stupid and hypocritical policy. Horrible.

The Culosi outrage has been compounded by the insensitive and unaccountable behavior of many in Fairfax County government since the incident (are you reading, Justice Scalia?). It’s been seven months now, and the Fairfax County police department still refuses to cooperate with Culosi’s family.

Frist’s legislation is aimed primarily at financial institutions. But like all prohibitions on consensual crimes, it will fail. And so over the next several years we will inevitably see attempts by Congress to expand and strengthen the gambling prohibition, to the point where, as is now the law in Washington state, the prohibition will be aimed squarely at gamblers themselves, not just the companies that profit from gambling.

Perhaps Senators Frist and Kyl, and Reps. Leach and Goodlatte should sit down for a few minutes with Salvatore and Anita Culosi. It would at least help them understand the inevitable consequences of using the blunt instrument of government to impose their own values and morals on the rest of the country.