Topic: Constitution, the Law, and the Courts

Diversity: Math Counts

The Washington Post reports:

President Bush’s crop of political appointees includes fewer women and minorities than did President Bill Clinton’s at comparable points in their presidencies, according to a new report by House Democrats.

Women made up about 37 percent of the 2,786 political appointees in the Bush administration in 2005, compared with about 47 percent in the Clinton administration in 1997, according to the report and supplemental data released last week by the Democratic staff of the House Government Reform Committee. Similarly, about 13 percent of Bush administration appointees last year were racial minorities, compared with 24 percent in the fifth year of Clinton’s presidency.

Unlike the Democratic report [.pdf], the Post noted that Bush is the first president to appoint a minority to any of the top four Cabinet posts: State, Defense, Treasury, and Justice. And he has appointed three minorities to those jobs.

But there’s another problem with the Democratic analysis. Presidents usually draw their appointees from the ranks of their supporters, and they tend to reward constituencies that support them. Get more support from the South, and you’ll likely appoint more Southerners to office. If Catholics vote heavily for one party, that party is likely to appoint more Catholics. That’s partly a matter of rewarding your voters, and partly a reflection of the pool of supporters you can draw from. If blacks vote 9 to 1 Democratic, it’s likely that a Democratic president will have more blacks among his campaign workers, contributors, and party faithful. By that criterion, Bush has lived up to the demands of affirmative action better than Clinton.

In 1996, about 58 percent of Clinton’s voters were women, 11 points higher than the percentage of women among his appointees. In 2000, about 47 percent of Bush’s voters were women, about 10 points higher than the percentage of women among his appointees.

More dramatically, Clinton got 27 percent of his votes from minorities, compared with 24 percent of his appointees. Bush got only 9 percent of his votes from minorities, but 13 percent of his appointees were minorities. So an identity-politics advocate would say that Clinton under-rewarded his minority supporters while Bush over-rewarded his.

The people who are going to manage vital services ought to be selected on the basis of their qualifications, not their race and gender. (Appointees who are merely going to be involved in useless and unnecessary federal programs can, I suppose, be selected on some other basis than ability and experience.) But to the extent that we’re going to look at “diversity” criteria, it seems appropriate to note that Bush has appointed more women and minorities in proportion to their presence in his coalition than Clinton did.

Jury Independence

Some good news for jury independence.  Three terrific rulings in three weeks.  I don’t know if this is an indication of anything significant, but I’ll take it.

First, some background.  The Sixth Amendment to the Constitution says that in all criminal prosecutions, the accused shall enjoy trial by jury.  The government has undermined that right in several ways.  First, it uses plea bargaining tactics [.pdf] to deter the accused from exercising the right to trial.  Second, the government tries to stack juries with people who will not question the law.  A prosecutor, for example, might ask a pool of potential jurors, “Anyone here have a problem with the war on drugs?”  After a show of hands, the prosecutor judge will then say something like, “Thank you for your candor.  Everyone who raised their hand is excused from jury service today.”  Third, after a jury is finally selected, the jurors will be told that they may not vote their conscience.  They must instead “follow the law” as it is explained by the trial judge.  Jurors are told that their job is to determine “the facts” – did the defendant initiate the attack or was she acting in self-defense, as she claims?  Sometimes that neat separation between the facts and the law breaks down, such as when a prosecutor wants to enforce a ban on handguns.  There is no factual dispute for the jury to decide when the defendant openly admits “Yes, I brandished a handgun.  But it was only to stop that guy from raping me.”  We rarely see such cases because prosecutors are clever enough to dispose of the case with a plea bargain.  “Ma’am, we understand you might have been raped, but what you did was against the law.  We don’t want you to go to prison for two years in these circumstances.  If you waive your right to a trial and plead guilty, we’re prepared to offer you five hours of community service, okay?”

The government uses these tactics every day and the courts have ruled that they are perfectly legal and constitutional.  This was not always the case.  Our second president, John Adams, said “it is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  American law has drifted so far from that idea, that if I put John Adams’s statement on a sign and walked outside a criminal courthouse, I might get arrested if I were to try and hold my ground against overzealous ”security personnel” from the courthouse.  Still, Cato publishes articles and books that make the case that the modern legal trend is wrongheaded.  Prominent academics, most notably, Amar, Green, and Reynolds, seem to agree, but the opposing view remains fairly dominant.

That’s the bad news.  Now to the good news.  Under modern law, it is still verboten for a trial judge to issue a direct order to the jury, such as “We will take a short recess now and I want the jury to retire and then return with a guilty verdict in twenty minutes.”  Similarly, it is also illegal for a judge accomplish the same end, but after-the-fact by overturning an acquittal and declaring the defendant “guilty.”  Those legal propositions are not disputed, but from time to time courts must decide cases where there is an allegation that the jury was “coerced” in some way.  The good news is that over the past few weeks there have been three such rulings and in each instance, the court came to the defense of jury independence.

Here’s a quick and dirty summary.

In a Maryland case, a note was sent to the judge after the jury started deliberating in a criminal matter.  The note complained that one of the jurors “did not trust the police no matter the circumstance.”  The judge responded by instructing the jury that such a skeptical point of view should have been disclosed by the juror before the case began.  The judge went so far as to say that this juror “might be violating the oath” that the jurors took earlier.  Shortly thereafter, the jury returned a guilty verdict.  On appeal, the defendant argued that the judge had coerced the verdict.  The Maryland Court of Appeals found coercion and overturned the conviction.  The appeals court said the trial judge’s admonishment may have caused the juror in question to “rethink her legal obligation,” go against her conscience, and vote with the majority.  In other words, it is improper to interfere with the jury’s independence.  Butler v. State. (Md Ct App) [.pdf] .

The second case involved a man on trial for first-degree assault.  The jurors were told that if they found the man not guilty of first degree assault–or if they simply could not unanimously agree on the first-degree charge, they should consider whether he was guilty of second-degree assault.  The jury returned a guilty verdict on the second-degree charge.  When the verdict was announced, the prosecutor asked the judge to clarify whether the jury was deadlocked on the first-degree charge or whether they had unanimously agreed that the defendant was not guilty of first-degree assault.  The judge proceeded to inquire of jury foreperson what had happened.  The jury foreperson explained that the jury was deadlocked and could not reach an agreement as to first-degree assault.  The trial judge then announced that, with respect to the first-degree charge, there was a mistrial, not an acquittal.  That finding is significant because the double jeopardy safeguard is triggered after an aquittal verdict, but not for mistrials because of hung juries.  The prosecution promptly announced its intention to retry the defendant and the defense objected.  The Supreme Court of Washington agreed with the defense that the court had acted improperly: “The trial judge erred by inquiring into the jury’s thinking about the first degree assault charge. … The jury’s resolution on first degree assault is beyond the realm of inquiry.”  In other words, state functionaries, including trial judges, should not interfere with the jury’s independence–most especially in a manner that might prejudice the defendant.

The third case involved the high-profile federal prosecution of Ed Rosenthal on marijuana charges in 2002.  This was one of the major skirmishes between Californians and the federal government over medical marijuana.  In 1996, California voters approved an initiative to allow marijuana use in certain medical situations.  The feds took the hard line: We don’t care what state law says, there is no “medical exception” to the federal ban on marijuana possession.  On the eve of Rosenthal’s trial, federal prosecutors asked the trial judge to lay down some ground rules for the trial.  No medical marijuana defense.  And Rosenthal should not be allowed to make any argument aimed at jury nullification. The judge readily agreed to those requests.  Weeks later, as the jury was deliberating Rosenthal’s fate, one juror decided to contact her attorney-friend to ask a question about a legal point.  The juror was frustrated because she had surmised from questions asked during the early jury selection phase of the case that there was a medical marijuana angle–and yet there was no evidence introduced in the case about medical marijuana.  This troubled the juror–so she phoned her attorney-friend to ask ”if [she] had to follow the Judge’s instructions, or if [she] had any leeway at all for an independent thought.”   The attorney responded by saying that jurors definitely had to follow the judge’s instructions and went so far as to say that a juror “could get into trouble” for acting outside of those instructions.  Rosenthal was subsequently convicted by the jury, but on appeal, he raised this episode as one reason that he should be given a new trial.

[Digression: After the trial, the jurors were shocked at the information that had been kept from them and many approached Rosenthal and his legal team to explain why they voted the way they did.  Several wanted to help in his appeal in any way they could].

The federal appeals court agreed with Rosenthal’s argument and overturned his conviction:

Jurors cannot fairly determine the outcome of a case if they believe they will face “trouble” for a conclusion they reach as jurors.  The threat of punishment works a coercive influence on the jury’s independence, and a juror who genuinely fears retribution might change his or her determination of the issue for fear of being punished. United States v. Rosenthal (9th Cir). [.pdf].

Good stuff.

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.

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.

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.

No Guardrails?

As Tim Lynch and I detail in our new study Power Surge: The Constitutional Record of George W. Bush, the Bush administration has advanced an extraordinarily broad theory of presidential power during the war on terrorism. The claim that shows up again and again—in the torture memos, in the enemy combatant cases, in the wiretapping controversy—is that the president’s “inherent executive authority” and powers as commander in chief allow him to override validly enacted statutes that proscribe tactics he wants to pursue in the war on terror.

But surely there are limits to this theory, boundaries that even a wartime president cannot cross, right? Well, if there are, administration officials have been pretty cagey about identifying them. At a Senate Judiciary Committee hearing in February, Attorney General Alberto Gonzales stonewalled like a Supreme Court nominee when asked about limits to the president’s power. To questions like “Can the president suspend the application of the Posse Comitatus Act legally?” he’d offer only, “Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible.”

In April, before the House Judiciary Committee, Gonzales suggested that the president has inherent authority to wiretap Americans’ domestic communications–calls and emails where both parties are in the United States–without a warrant. That day, the Justice Department issued a “nonclarification clarification” of the AG’s remarks: “The attorney general’s comments today should not be interpreted to suggest the existence or nonexistence of a domestic program or whether any such program would be lawful under the existing legal analysis.” Anyone looking for a straight answer on limits to “inherent executive authority” would be well-advised to look elsewhere.

A few months back, CBS’s Bob Schieffer decided to ask the president himself: “Do you believe that there is anything that a president cannot do, if he considers it necessary, in an emergency like this?” Here’s the president’s response:

PRESIDENT BUSH: That’s a–that’s a great question. You know, one of the–yeah, I don’t think a president can tort–get–can order torture, for example. I don’t think a president can order the assassination of a leader of another country with which we’re not at war. Yes, there are clear red lines, and–it–you–you–you just asked a very interesting constitutional question. The extent to which a president, during war, can exercise authorities in order to protect the American people, and that’s really what the debate is about.

It’s a very interesting answer, because, as Jacob Sullum pointed out recently, neither example represents a case in which the president considers himself bound by law or by anything other than his own sense of self-restraint. Assassination is barred by an executive order that the president himself could change. As for torture, the administration has never repudiated the theory of uncheckable executive power outlined in the Justice Department’s torture memos. And recently, when President Bush signed the McCain Amendment reaffirming the ban on torture, the president suggested in the signing statement that he could interpret it out of existence if he thought it necessary.

Given all that, Schieffer’s question still stands: in the administration’s constitutional theory, is there anything that a president cannot do, if he considers it necessary? It would be good–or at least clarifying–to have an answer, even if that answer turns out to be “no.”