Robert Jackson and NSA Spying Reconsidered

I enjoyed Roger Pilon’s and Bob Levy’s debate on NSA surveillance Friday. I’ll confess I’m in general agreement with Bob. However, I post to note one wrinkle: Bob mentioned Justice Jackson’s opinion in the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer) in support of his position against the NSA surveillance program. In the Steel Seizure Case, Jackson’s concurrence set out a tri-partite framework for assessing presidential power, in which he argued that the power of a President acting without congressional authorization is at its lowest ebb. The problem is that no one knows what exactly this means.

In the spring edition of The Green Bag (available here), Jack Goldsmith (my onetime international law professor and former head of the Office of Legal Counsel) discusses a recently discovered draft of Jackson’s (never filed) concurrence in In re Quirin—the case involving the military trial and eventual execution of enemy saboteurs captured on U.S. soil during World War II. The draft opinion sheds some further light on Jackson’s views.

Here’s the basic gist:

[Jackson] ‘began in Quirin with the fixed presumption that the Court has no business reviewing military judgments in time of war, and he never deviated from that position.’ Jackson clearly stated the basis for this presumption in the closing paragraph of his draft opinion in Quirin:

‘[I]n the long run it seems to me that we have no more important duty than to keep clear and separate the lines of responsibility and duty of the judicial and of the executive-military arms of government. Merger of the two is the end of liberty as we in this country have known it. If we are uncompromisingly to discountenance military intervention in civil justice, we would do well to refuse to meddle with military measures …’

Jackson’s is a somewhat strange middle position: He felt it was the Court’s duty to declare extra-legal actions undertaken in the service of national security unconstitutional when the Court confronted such acts. But Jackson also seemed to believe that courts should not directly interfere with the carrying out of such unconstitutional “military measures.” In effect, Jackson believed the Court, when confronted with illegal actionj must declare it as such, but should leave the remedy to the political process.

What would Jackson have done in a case reviewing the NSA surveillance program.? It is hard to tell. But to the extent he would have viewed the program as a “military measure,” part of the “necessities and practices” of warfare, he might well have wanted the Court to declare it illegal and then abstain from directly ordering an end to the surveillance program.

What if They Held an Election and Nobody Came?

The interesting story about the new Associated Press-Ipsos poll is not the further decline in approval ratings for President Bush and the Republican Congress. The interesting story is how the decline is being driven by discontent among self-identified conservative voters.

Bush’s disapproval rating among conservatives is 45%. That is not as high as the overall 66% disapproval score, but it is quite remarkable considering Bush is supposed to be—according to the media—the most conservative president since Ronald Reagan. Even more stunning is the whopping 65% negative score among polled conservatives for the Republican Congress. Close to a third of conservatives surveyed would be happier if the GOP lost control of Congress.

There are many reasons for the low poll numbers. But one of the primary drivers of conservative discontent with the GOP has got to be that the Republican Congress and President Bush are the biggest spenders since LBJ.

The AP-Ipsos results seem to corroborate what other pollsters have discovered among likely voters over the past two years. In February 2006, a George Washington University Battleground poll revealed that only 36% percent of those surveyed trusted Republicans in Congress to keep spending under control—down from 47% in the same poll two years before. This isn’t because Democrats have effectively wrapped themselves in the mantle of fiscal responsibility. It’s entirely a result of the public realizing that the GOP is no longer a party committed to small government.

As a result of this, many Republicans might shift from being “likely voters” in November to deciding they’d rather not put up with the fuss of showing up to vote at all. And that’s exactly what has Republican strategists worried. Why would conservatives bother to pull the lever for a Republican candidate when continued GOP control of Congress seems likely only to give them the sort of Big Government they would expect from Democrats? That’s not what Republican leaders want to hear from their base before a mid-term (read: low turnout) congressional election in which support of the party faithful is essential to victory.

Pundits suggest that the poll numbers of late are a harbinger of a 1994-like realignment in Congress. It’s probably too early to make such grand predictions. Perhaps a better historical comparison is with the 1998 congressional elections.

At that time, Republicans were coming off of a year when they seemed to have made peace with Big Government. A few weeks before the midterm elections of 1998, the Republican Congress approved a budget that hiked non-defense discretionary spending by over 5% that year—low by comparison to today’s budgets, but over twice what was promised in the Contract with America budget. They also funded a record amount of pork-barrel projects, reversed their promise to phase-out farm subsidies, and passed a highway bill that at the time was the most expensive and earmark-laden in U.S. history. In other words, the 1998 session of Congress was in every way a rout of the very ideals that sparked the Republican Revolution in the first place.

What was the result? The GOP lost a net three seats in the House, narrowing their majority to five seats. Exit polls showed that turnout among self-identified conservatives dropped 6% from 1994 to 1998. This may not sound like a lot, but consider this: Republican House candidates received a total of 32 million votes, and Democratic candidates received 31 million votes—a difference of about 2%. In a race that close, Republicans needed all the help that could be mustered from self-identified conservatives. But those voters were clearly peeved that Republicans had lost their fiscal backbone and decided to stay home on Election Day.

Whether 2006 will be a replay of 1998 or even 1994 will at least partly depend on whether Republicans can dispel their reputations as big spenders. 

The Politics of Pain

Over at Reason, Jacob Sullum notes the similarities between the the Rush Limbaugh case and the sad case of Richard Paey

Both men suffered severe back pain for which they underwent unsuccessful surgery, and both were accused of fraudulently obtaining more narcotics than they really needed. But while Limbaugh remains a free man and will not even face criminal charges if he continues to attend drug treatment for the next 18 months (something he was planning to do anyway), Paey is serving a 25-year sentence in a Florida prison.Limbaugh was accused of “doctor shopping,” getting painkillers from several physicians who were not aware of the other prescriptions. Although he denies the charge, he admits he became addicted to the painkillers, which by definition means he was taking them for reasons the law does not recognize as medically legitimate–as an “escape” (his word) from stress or unhappiness.

Paey, who moved to Florida from New Jersey, was accused of forging painkiller prescriptions from his New Jersey doctor. The doctor, who could have faced criminal charges if the government decided he was dispensing narcotics too freely, at first confirmed that the prescriptions were legitimate but later changed his story.

There was no evidence that Limbaugh or Paey sold painkillers on the black market, and both men insisted they had done nothing illegal. But unlike Limbaugh, who publicly confessed to a drug problem and voluntarily entered treatment, Paey said he really did need large quantities of narcotics to treat his physical symptoms, a situation that is not uncommon among patients who suffer chronic pain for years and develop tolerance to the analgesic effect of their medicine.

So why the disparity in sentences? Limbaugh copped to Drug War rhetoric. He admitted addiction, didn’t question the law, and did what he was told. In contrast, Paey refused to admit to any crime, and instisted on his right to find relief from his pain. Sullum writes:

Paey’s refusal to call himself an addict, more than Limbaugh’s celebrity, seems to be the crucial factor that led to such dramatically different outcomes in these two cases, both of which were handled by Florida prosecutors under Florida law. Like Limbaugh, Paey was initially offered an arrangement through which he could have avoided jail—although, unlike Limbaugh, he would have had to plead guilty.After Limbaugh’s deal was announced, a spokesman for the Palm Beach County State Attorney’s Office explained that “it’s a diversion specifically for first-time offenders with no prior criminal history or arrest.” He called it “standard for someone who is dealing with their addiction.”

But because Paey insisted there was no addiction to deal with, the prosecution threw the book at him, charging him not just with prescription fraud but with drug trafficking.

Paey’s prosecutors have admitted as much. Here’s John Tierney on Paey from July of last year:

Scott Andringa, the prosecutor in the case, acknowledged that the 25-year mandatory penalty was harsh, but he said Mr. Paey was to blame for refusing a plea bargain that would have kept him out of jail.

In other words, Paey—a paraplegic with multiple sclerosis—was punished with an unspeakably cruel 25-year sentence in a maximum-security prison not for selling illicit drugs, but for “stubbornly” insisting on his right to a jury trial.

Meanwhile, the DEA’s misguided war on painkillers continues. Last week, the Third Circuit denied the appeal of Pittsburgh doctor Bernard Rottschaefer, convicted of overprescribing painkillers, despite the fact that key prosecution witnesses have since admitted to committing perjury on the stand. The 63-year old Rottschaefer—a man with no previous criminal record and a spotless medical record—will serve his 6 1/2 year sentence at a maximum security prison, with a population of men convicted of sex crimes, trafficking in hard drugs, and murder.

Japanese FM in Washington—Who Knew?

Japanese Foreign Minister Taro Aso was in Washington for meetings on Wednesday, and he took time to speak to the media and the public at an event at the Willard Hotel.

There was considerable interest in Aso’s talk, judging from the many microphones at the podium and cameras in the back. And no wonder: if Prime Minister Junichiro Koizumi steps down later this year, as is widely expected, Aso would be a leading candidate to replace him. The security retinue of Mr. Aso is already comparable to that of a head of state, judging from the number of people with earpieces standing around the room who showed absolutely no interest in what he was saying.

And yet, Aso’s remarks didn’t merit mention on the front pages of either the Washington Post or the Washington Times. Then again, it didn’t make it into the middle pages of those papers either. The big news in the capital city of a country waging two conventional wars (and numerous smaller unconventional wars) was that the Washington Nationals baseball team had new owners. Other cities, and other papers, also seemed disinterested. After an admittedly cursory glance, I found no mention of Aso’s remarks in the New York Times or the Wall Street Journal. (By way of comparison, today’s Financial Times has two stories, a news article and an editorial, about the speech.)

The speech presumably got more coverage in East Asia, but Americans need to hear what Aso is saying. Of great concern on both sides of the Pacific is the nature and trajectory of China’s rise to power. If Sino–Japanese relations remain sour or grow worse, there will be a risk of conflict. And with over 35,000 U.S. troops in Japan and another 25,000 on the Korean peninsula, the United States would almost certainly become involved. Then there is the perennial flashpoint of Taiwan, the subject of my friend and mentor Ted Galen Carpenter’s latest book (America’s Coming War with China: Collision Course over Taiwan)

Mr. Aso went out of his way, both in his prepared remarks (delivered in English, by the way) and in his responses to questions, to stress the potential for peaceful coexistence between Japan and China. He did not dismiss questions about the past nor did he minimize or ignore China’s need for greater transparency and openness in its dealings with the outside world. But Aso tried his best to focus on the future. Trade is flourishing between the two countries. China has now passed the United States as Japan’s leading trading partner. There is now tremendous economic opportunity throughout East Asia, a region once characterized by crushing poverty.

As I stress in a Cato Policy Analysis published last month (“Two Normal Countries: Rethinking the U.S.–Japan Strategic Relationship,” PA 566, April 18, 2006), Japan’s emergence as a normal nation, one that is no longer dependent upon the United States for its defense, could play an important role in safeguarding East Asian security. While it would be unwise to dismiss lingering concerns in East Asia about Japan’s intentions, I stress that many of these concerns flow from a period of time that has long since past. It is well past time for Americans and East Asians to embrace the future.

Foreign ministers come and go in Washington almost every day. When Mr. Aso returns to Washington, which he is almost certain to do, it will be interesting to see if the media coverage will be any different. Perhaps the Redskins will replace the Nationals on the front pages of the hometown newspapers, or perhaps foreign policy concerns will remain focused on the Middle East. But I hope that a Prime Minister Aso will be afforded the attention that he, and that the U.S.–Japan relationship, deserves.

The Devil in Massachusetts

Betsy McCaughey digs into some of the details on the effects on business of Massachusetts’ brave, new health insurance experiment:

Say, for example, you open a restaurant and don’t provide health coverage. If the chef’s spouse or child is rushed to the hospital and can’t pay because they don’t have insurance, you – the employer – are responsible for up to 100% of the cost of that medical care. There is no cap on your obligation. Once the costs reach $50,000, the state will start billing you and fine you $5,000 a week for every week you are late in filling out the paperwork on your uncovered employees (Section 44). These provisions are onerous enough to motivate the owners of small businesses to limit their full-time workforce to 10 people, or even to lay employees off.

What else is surprising about this new law? Union shops are exempt (Section 32).

Of course, in states like Maryland (where I live), the possibility of killing off jobs in small businesses would hardly deter the passage of similar laws.  As far as politicians here are concerned, undermining the private economy is not a legislative bug.  It’s a feature.

Back from the Former USSR

I’ve just returned from a fascinating week in Russia and Ukraine. I was in Moscow last week to deliver some lectures regarding my book on globalization, Against the Dead Hand, which was recently translated into Russian. From there I traveled down to Kiev to improve Cato’s contacts with liberal (in the everywhere-but-America sense of that word) organizations there. 

My overwhelming impression from the visit: what a difference an oil boom makes! Now in the fifteenth year since the collapse of the Soviet Union, neither Russia nor Ukraine has had much success in making the transition from communism to a viable market economy (according to the latest Economic Freedom of the World report, Ukraine ranks 103rd in the world, with Russia trailing just behind at 115th). Despite this and many other similarities, there is one critical difference between the two countries: Russia has oil and gas, and Ukraine doesn’t.

As a result, Moscow fairly reeks of money these days – luxury retail outlets everywhere, the roads choked with Mercedes sedans, non-stop construction projects. On a plane flight I met an American whose job seems to be schmoozing the new Russian nomenklatura on behalf of American investors. Boy, did he have some stories to tell – like one about a group of bigwigs who recently paid a big-name Hollywood actor a half-million bucks just to fly to Russia and hang out with them for a few days. While I can’t vouch for the accuracy of that story (and therefore won’t give the actor’s name), the fact that it seemed entirely plausible tells you something about the amount of money sloshing around that town these days.

Kiev, meanwhile, is a charming, beautiful city – but poor. Just off Kreshchatik Street, the city’s main boulevard, are lovely old buildings in dismal, Soviet-era disrepair. And the only Western retail establishments I saw were McDonald’s, Reebok, and Benetton – not exactly catering to the glitterati.

For precisely this reason, I am much more optimistic about Ukraine’s propects for reform than I am about Russia’s. Seduced by all the easy money, Russia under Putin has decided for the time being that Jed Clampett beats Adam Smith as an economic role model. And with the abandonment of economic reform has come a nasty crackdown on political freedom. Ukraine, on the other hand, has no easy way out. And so, perhaps, its improving political climate (whatever one makes of the results of the recent parliamentary elections, at least they were free and fair) will create the space within which durable economic improvements can eventually be achieved.

D.C. Circuit 1, WaPo 0

Substantive due process cases make normally careful commentators sloppy. As many readers know, the D.C. Circuit ruled on Tuesday that “a terminally ill, mentally competent adult patient’s informed access to potentially life-saving … new drugs … warrants protection under the Due Process Clause.” Comes the Washington Post editorial board with a slapdash discussion of the case. The Post argues that the decision pulls a new constitutional right “out of thin air”—one that could “create a right to LSD or marijuana.”

Golly. Is that right? Now, there’s no denying the Court’s substantive due process line of cases is controversial. But this decision didn’t pop out of thin air and its not going to legalize marijuana. [Warning: lengthy legal discussion follows.]

The D.C. Circuit is a lower court, obligated to follow superior court precedent. The Supreme Court over the last three decades has dipped again and again into the substantive due process well. Let’s put Roe v. Wade, the most controversial example, to the side. The most restrictive framework for assessing substantive due process follows the framework set out in Justice Scalia’s plurality opinion Michael H v. Gerald D (joined by Chief Justice Rehnquist). Scalia’s opinion in Michael H makes three points:

1. Constitutionally protected liberty interests must be rooted in a “fundamental principle of the common law.”

2. The Court must select “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”

3. The liberty interest cannot be rooted in abstractions or generalizations. It must be rooted in a concrete description of actual case law.

The Court has since disagreed, sharply, about how to apply these principles. But, as Michael H underscores, even the most conservative members of the Court agree that the “liberty interests” protected by the due process clause include more than just freedom from restraint.

The Abigail decision does a level job of following the framework laid out in Michael H. It is at its strongest in its reliance on the common law tort rule creating a duty to refrain from “intentionally prevent[ing] a third person from giving to another aid necessary to his bodily security,” which, under Michael H, provides the most specific common law support for the liberty interest recognized.

The challenge for the case is twofold: First, the tort duty against interference with self-help and rescue is, as the court recognizes, ancient but infrequently invoked. It’s arguable that the frequency in which a widely recognized tort is invoked should not factor into whether it rises to the level of a liberty interest, since this sort of empirical judgment isn’t something courts do well. Rather, the legal question is whether the right is ancient and widely accepted as a formal principal of tort law today. (The principal problem for this argument is Lawrence v. Texas, which held state sodomy laws applied to consensual adult homosexual conduct violate the Due Process Clause, based in part on the way in which sodomy laws have been historically prosecuted. But, as the D.C. Circuit notes, some lower courts have viewed Lawrence as “not, properly speacking, a substantive due process decision.”)

Second, the pervasiveness of drug restrictions will lend credence to an argument that common law rule has been limited with respect to certain kinds of administrative regulations and can no longer be described as part of our legal traditions. The D.C. Circuit’s basic argument is that federal prohibitions on marketing of new drugs are too spotty to have displaced the basic common law rule. This is surely the most problematic part of the opinion, because the Michael H framework suggests that the presence of a countervailing regulatory tradition can refute the existence of a liberty interest. Hence the relevance of the dissent’s discussion of a history of drug regulation in colonial and nineteenth century state drug laws.

Here, there are perhaps two arguments for the D.C. Circuit. First, perhaps the evidence of a fundamental right should differ depending on whether the regulation is state or federal: perhaps a history of federal regulation is relevant to the scope of due process limits on federal law. (Michael H and most other substantive due process cases, such as Cruzan and Glucksberg, involve state laws.)

Second, and more interestingly, the D.C. Circuit argues that the challenge involves a challenge to an administrative regulation, not to a federal statute. The logic of the D.C. Circuit (see footnote 9 of the opinion for this point) appears to be that administrative regulations promulgated under a legislative delegation of rulemaking authority come with a lesser presumption of constitutionality for purposes of fundamental rights analysis. The point is fuzzy, but appears to assume that, in such challenges, plaintiffs bear a lesser burden of proving a liberty interest than they do when confronting a duly enacted federal statute. This argument is perhaps the most intriguing—and, to my mind, the most fertile for defenders of the D.C. Circuit’s decision.

If I read the case right, the latter point adds additional fuel for explaining why this decision says nothing about marijuana and LSD: both drugs are labeled Schedule I drugs (no accepted medical use) by Congress. The decision can only have implications for Schedule I drugs if the FDA uses its delegated authority to reschedule either drug.  Not likely any time soon, I’m afraid.

The point is, even under the most restrictive approach to substantive due process, the D.C. Circuit has a fairly reasonable argument based on precedent. And the D.C. Circuit must follow the Supreme Court’s precedents as it understands them. The decision is surely open to challenge, as even its staunchest defenders must admit. But only a sloppy lawyer can say this decision popped out of thin air.