Tag: Constitution

Civil Liberties and President Barack W. Bush?

It’s fair to say that civil liberties and limited government were not high on President George W. Bush’s priorities list.  Indeed, they probably weren’t even on the list.  Candidate Barack Obama promised “change” when he took office, and change we have gotten.  The name of the president is different.

Alas, the policies are much the same.  While it is true that President Obama has not made the same claims of unreviewable monarchical power for the chief executive–an important distinction–he has continued to sacrifice civil liberties for dubious security gains.

Reports the New York Times:

Civil libertarians recently accused President Obama of acting like former President George W. Bush, citing reports about Mr. Obama’s plans to detain terrorism suspects without trials on domestic soil after he closes the Guantánamo prison.

It was only the latest instance in which critics have argued that Mr. Obama has failed to live up to his campaign pledge “to restore our Constitution and the rule of law” and raised a pointed question: Has he, on issues related to fighting terrorism, turned out to be little different from his predecessor?

The answer depends on what it means to act like Mr. Bush.

As they move toward completing a review of their options for dealing with the detainees, Obama administration officials insist that there is a fundamental difference between Mr. Bush’s approach and theirs. While Mr. Bush claimed to wield sweeping powers as commander in chief that allowed him to bypass legal constraints when fighting terrorism, they say, Mr. Obama respects checks and balances by relying on — and obeying — Congressional statutes.

“While the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people,” Robert Gibbs, the White House press secretary, said this week in response to questions about the preventive detention report. “And this will not be pursued in that manner.”

But Mr. Obama’s critics say that whether statutory authorization exists for his counterterrorism policies is just a legalistic point. The core problem with Mr. Bush’s approach, they argue, was that it trammeled individual rights. And they say Mr. Obama’s policies have not changed that.

“President Obama may mouth very different rhetoric,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “He may have a more complicated process with members of Congress. But in the end, there is no substantive break from the policies of the Bush administration.”

The primary beneficiaries of constitutional liberties are not terrorist suspects, but the rest of us.  The necessary trade-offs are not always easy, but the president and legislators must never forget that it is a free society they are supposed to be defending.

Spinning…When a President who Seeks Dictatorial Powers in an Illegal Move Is Removed by the Congress and by the Supreme Court, Is it a “Military Coup”?

The media discussion of events in Honduras is remarkably confused. Here’s CNN:

The president of the U.N. General Assembly scheduled a noon session Monday to discuss the situation in Honduras, following a military-led coup that ousted the sitting president.

and

Micheletti, the head of Congress, became president after lawmakers voted by a show of hands to strip Zelaya of his powers, with a resolution stating that Zelaya “provoked confrontations and divisions” within the country.

….

The coup came on the same day that he had vowed to follow through with a nonbinding referendum that the Honduran Supreme Court had ruled illegal.

Imagine that George Bush, Barack Obama, Bill Clinton, Ronald Reagan or some other American president had decided to overturn the Constitution so that he could stay in power beyond the constitutionally limited time. To do that, he orders a nationwide referendum that is not constitutionally authorized and blatantly illegal. The Federal Election Commission rules that it is illegal. The Supreme Court rules that it is illegal. The Congress votes to strip the president of his powers and, as members of Congress are not that good at overcoming the president’s personally loyal and handpicked bodyguards, they send police and military to arrest the president. Now, which party is guilty of leading a coup?

This is another example of populist, dictatorial, anti-democratic thought parading as “democratic.” I discuss the issue in my recent lecture on enduring democracy in New Delhi.

Schneier and Friends on Fixing Airport Security

Security guru Bruce Schneier comes down on the strictly pragmatic side in this essay called “Fixing Airport Security.” Because of terrorism fears, he says, TSA checkpoints are “here to stay.” The rules should be made more transparent. He also argues for an amendment to some constitutional doctrines:

The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is “implied consent,” which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is “plain view,” which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that. Both of these principles are well established and make sense, but it’s their combination that turns airport security checkpoints into police-state-like checkpoints.

The comments turn up an important recent Fourth Amendment decision circumscribing TSA searches. In a case called United States v. Fofana, the district court for the southern district of Ohio held that a search of passenger bags going beyond what was necessary to detect articles dangerous to air transportation violated the Fourth Amendment. “[T]he need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable,” wrote the court.

Application of this rule throughout the country would not end the “police-state-like checkpoint,” but at least rummaging of our things for non-air-travel-security would be restrained.

I prefer principle over pragmatism and would get rid of TSA.

The Supreme Court Decision on NAMUDNO v. Holder

In the case of Northwest Austin Municipal District Number One (“NAMUDNO”) v. Holder, the Supreme Court issued a narrow decision today that avoided ruling on the constitutionality of Section 5 of the Voting Rights Act.

Section 5 requires any change in election administration in certain states and counties—mostly but not exclusively in the South—to be “precleared” by the Department of Justice in Washington. As I wrote earlier, this is a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.

The ruling correctly allows a small utility district (and other political subdivisions) to seek relief—known as a “bailout”—from the 1965 Voting Rights Act’s onerous pre-clearance requirements. There is simply no reason for jurisdictions that have, at worst, gone decades without any voter intimidation or disenfranchisement—where the Act succeeded in stamping out or preventing racial discrimination—to continue to go before the Department of Justice for the most innocuous changes in state and municipal election procedures.

Here, for example, an electoral district that wasn’t even created until 1987 wants to move its polling locations from private garages to public schools, for ease of voting. Since Congress amended the Act in 1982, only 17 of 12,000 covered jurisdictions have been able to come out from under the thumb of federal oversight. Congress clearly never intended it to be so difficult to escape having to seek federal approval for such minor changes in election procedure.

This is one “bailout” that actually saves taxpayer money and makes common sense.

Unfortunately, the constitutionality of the Act’s Section 5—in the absence of the “exceptional conditions” the Court cited in 1966 as justifying “extraordinary legislation otherwise unfamiliar to our federal system”—remains in doubt. While it is a close call whether the Court need resolve that issue to dispose of the NAMUDNO case, Section 5’s validity as a matter of constitutional law and public policy is assuredly not a close call.

As Chief Justice Roberts notes in his majority opinion: “The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”

Indeed, blatantly discriminatory evasions of federal decrees are exceedingly rare. Minority candidates run for and hold office at unprecedented rates—particularly in the South. The racial gap in voter registration—the primary concern of the VRA—is higher nationwide than it is in the covered states; in some covered states, blacks register and vote at higher rates than whites.

As Justice Thomas says in his partial dissent: “Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgement of victory.”

The White House as Animal Farm

As George Orwell’s Animal Farm closes, the revolutionary pigs have been transformed into oppressive humans.  It took some time to occur on the Animal Farm.  It’s taken just a few months in the Obama White House.

Reports McClatchy Newspapers:

President Barack Obama is morphing into George W. Bush, as administration attorneys repeatedly adopt the executive-authority and national-security rationales that their Republican predecessors preferred.

In courtroom battles and freedom-of-information fights from Washington, D.C., to California, Obama’s legal arguments repeatedly mirror Bush’s: White House turf is to be protected, secrets must be retained and dire warnings are wielded as weapons.

“It’s putting up a veritable wall around the White House, and it’s so at odds with Obama’s campaign commitment to more open government,” said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a legal watchdog group.

Certainly, some differences exist.

The Obama administration, for instance, has released documents on global warming from the Council on Environmental Quality that the Bush administration sought to suppress. Some questions, such as access to White House visitor logs, remain a work in progress.

On policies that are at the heart of presidential power and prerogatives, however, this administration’s legal arguments have blended into the other. The persistence can reflect everything from institutional momentum and a quest for continuity to the clout of career employees.

“There is no question that there are (durable) cultures and mindsets in agencies,” Weismann acknowledged.

Conservatives once opposed executive aggrandizement.  Then with George W. Bush in office, they embraced the idea of the presidency as a kind of elective monarchy.  With President Barack Obama now pushing the executive power grab, will conservatives rediscover their inner-Constitution and again join the barricades for liberty?

A Nation of Lawlessness

The matter of Chrysler’s bankruptcy seems to have rendered quaint our system of checks and balances. President Obama is breaking the law and the other two branches are letting him get away with it. One can probably understand how a smitten public might casually allow this president a stipend of unconstitutional acts, since he doesn’t scowl like Nixon or stutter like Bush. But, even a popular president (in particular, a popular president) must be held in check by the legislative and judicial branches.

And that’s not happening.

On Tuesday at 4:00 pm, Justice Ruth Bader Ginsburg “stayed pending further order” the bankruptcy-related transactions of Chrysler, giving hope the Supreme Court might hear the appeal filed on behalf of certain Indiana state pension and construction funds, who claim that their property rights as secured creditors were violated by the forced sale and that the use of Troubled Asset Relief Program funds to support Chrysler and facilitate its restructuring was illegal. Only 28 hours later, the Supreme Court decided against taking the appeal, despite the seemingly compelling issues at hand.

Just as the Bush administration was telling Congress last September that there was no time to debate the merits of a financial bailout and that the only course was to give Treasury Secretary Paulson carte blanche immediately to spend $700 billion, the Obama administration was telling the Supreme Court this week that time was of the essence and that Fiat would walk away from the Chrysler deal if it wasn’t allowed to proceed right away. Was that the decisive factor in the Supreme Courts rejection of the appeal? It seems to me the appeal contains some serious constitutional issues worthy of judicial consideration (consideration that goes beyond merely rubber-stamping the Obama administration’s pre-packaged, politically-driven bankruptcy plan for Chrysler, which is what Judge Gonzalez appears to have done).

But it’s now a done deal, possibly facilitated by illegalities.

I’m struck by the relative quiet about this issue (in the mainstream media and the blogosphere). Maybe we’re all just too numb and shell shocked by the blitzkrieg of government interventions over the past 9 months that it’s no longer possible to feel alarmed or outraged by just another government act that would have been unthinkable this time last year.

Well wake up!

There is a compelling legal argument against using TARP funds to support automobile producers. (Obviously, there is a compelling economic argument, as well.) Convincing the courts to hear the argument and subsequently persuading judges (probably up to the Supreme Court) of its merits will likely be the last chance to spare us the nationalization of General Motors.

As you may recall, there wasn’t a whole lot of clarity about how the Treasury’s use of TARP funds would be limited or defined. Lots of discretion was granted the Treasury Secretary. However, Section 101(a)(1) of the law establishing the TARP stipulates:

“The Secretary is authorized to establish the Troubled Asset Relief Program (or ‘TARP’) to purchase, and to make and fund commitments to purchase, troubled assets from any financial institution, on such terms and conditions as are determined by the Secretary, and in accordance with this Act and the policies and procedures developed and published by the Secretary.” (My emphasis).

Neither Chrysler nor GM is a financial institution and therefore neither can receive TARP money.  There’s the argument, plain and simple.  Congress authorized funds for a defined use; the executive breached those boundaries, and thus acted illegally. Is it more complicated than that?

President Bush was the first to break the law by authorizing $17.4 billion in TARP funds for GM and Chrysler, circumventing the wishes of Congress, which had recently voted against an auto bailout.  And President Obama has followed suit, providing funding the Chrysler and GM during bankruptcy.

If there’s any doubt that TARP funds were not to be used for automobile companies, consider the fact that the same House of Representatives that passed the legislation creating the TARP in October also passed a bill specifically authorizing the use of TARP funds for automobile companies in December. (There was never a vote in the Senate so it never became law.)  Such legislation wouldn’t have been necessary if the intent of Congress was to allow TARP funds to be used for automakers originally.  Thus, there are two conclusions to draw here. First, the 110th Congress didn’t think the TARP legislation, which it had passed two months earlier, allowed TARP funds to be used for automakers; and second, Congress was too cowardly to bring the matter to the Supreme Court, thereby exercising its constitutional responsibility and allowing the judiciary an opportunity to exercise its.

Let’s hope the judiciary finds the opportunity to check the legality of the executive’s implementation of the legislature’s instructions, as far as the people’s money is concerned.

Haywood v. Drown

The Supreme Court ruling in Haywood v. Drown got lost in the news last week, but it was an important constitutional case involving the principle of federalism.  The issue concerned the  extent to which the central government can commandeer state judicial systems.  Unfortunately, by a narrow 5-4 vote, the Court gave the central government a green light.

Justice Clarence Thomas filed  another one of his sober, scholarly opinions in dissent and I think he makes the case rather well.  Excerpt:

The Court holds that New York Correction Law Annotated §24, which divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers, violates the Supremacy Clause ofthe Constitution, Art. VI, cl. 2, because it requires the dismissal of federal actions brought in state court under42 U. S. C. §1983. I disagree. Because neither the Constitution nor our precedent requires New York to open its courts to §1983 federal actions, I respectfully dissent.

Although the majority decides this case on the basis of the Supremacy Clause, see ante, at 5–13, the proper starting point is Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The history of the drafting and ratification of this Article establishes that it leaves untouched the States’ plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action.

Until this setback, the Court’s conservatives were doing well in this corner of the law.  In New York v. United States (1992), the Court ruled that state legislatures were not subject to federal direction.  In Printz v. United States (1997), the Court ruled that state executive officers were not subject to federal direction.  This case stood for the proposition that state courts are not subject to federal direction.  Alas, Justice Anthony Kennedy joined the liberals to subordinate the states to federal control.

Here’s a practical example to illustrate the problem.  It’s bad enough when Congress wants to pass a law like the Americans with Disabilities Act (pdf)–a law that will create a flood of litigation.  But what if Congress goes a step further and writes the law in such as way as to say ”take all those time-consuming lawsuits to the state courts. Federal judges and personnel can’t be bothered with that stuff!”  So state courts get clogged or state lawmakers must raise taxes to alleviate the added burden, which blurs accountability.  That’s what is likely to happen. Or, to be precise, continue to happen with increasing frequency.  The feds have permission to foist costs on to the states.

But, to be clear, the main issue here is the proper division of federal and state authority.  Even if Congress were to get around the problem of unfunded mandates by throwing money at the states, each state should retain control over its judiciary.  As Justice Thomas notes, the issue of federal supremacy is too often distorted by liberals.  Within its proper sphere, the feds are supreme.  Liberals want supremacy and federal authority that is plenary.  Wrong.  Obama’s Supreme Court nominee should be asked about federalism and the doctrine of enumerated powers at the confirmation hearings.