Monday, September 29, 2014

Fog of War, Fog of Law

      When a reporter shouted a question to President Obama last week about the legal justification for the U.S.-led air strikes against the Islamic State in Syria, Obama waved the question away. “Good to see you,” Obama replied smilingly.
      Obama violated no constitutional provision by dodging the reporter’s question, but between them Obama and Congress have disrespected the Constitution with the president’s launch of a new war in the Middle East without formal debate or resolution from Capitol Hill.
      The president deserves credit for laying out his position in a prime-time televised address on Sept. 10 in advance of the start of the air strikes the next day. But the administration’s legal rationale has been scatter-shot rather than precision-targeted.
      In his speech, Obama blandly declared, “I have the authority to address the threat from ISIL” to use the White House’s acronym for the group. He cited nothing specific and then, without taking a breath, continued by saying that the country is “strongest . . . when the President and Congress work together.”
      Yet Obama has not asked Congress to sign on the dotted line, as the Constitution arguably requires. And congressional leaders have not put aside the midterm election campaigns to return to Washington simply to debate going to war.
      Obama was all over the map in his listing of the United States’ goals in the Sept. 10 address. The mission was described variously as helping Iraq defend itself, strengthening the opposition within Syria to the discredited president Bashar Assad, and combating “terrorists who threaten our country.” Never mind that any number of terrorism experts have played down any direct threat from the Islamic State to the U.S. homeland.
      On background, administration officials told reporters that the White House was relying in part on two congressional enactments: the post-9/11 Authorization for the Use of Military Force — commonly referred to by the acronym AUMF — and the late 2002 resolution on the Iraq War. Jack Goldsmith, the Harvard law professor who served as director of the Justice Department’s Office of Legal Counsel in President George W. Bush’s second term, dismissed the AUMF argument as “unconvincing.”
      Congress passed the AUMF to give Bush legal authority to take military action against “those nations, organizations, or persons” that “authorized, committed, or aided” the Sept. 11 attacks or “harbored” those that did. The Islamic State, which once operated under the name al Qaeda in Syria and Iraq, has only the faintest if any connection to Sept. 11 and has since parted ways from “core” al Qaeda.
      In a quickie column written the next day for Time, Goldsmith said that the invocation of the AUMF amounted to a claim for authority to “use force endlessly against practically any ambitious jihadist terrorist group” that fights the United States. The argument, he wrote, was “presidential unilateralism masquerading as implausible statutory interpretation.”
      With more time, Goldsmith is now giving the administration’s other arguments more credence. In a post on the conservative-leaning web site LawFare  [Sept. 23], Goldsmith wrote that the administration “is on pretty strong legal ground under both domestic and international law.” He still views the AUMF rationale as “weak,” but sees “adequate legal foundation” when the AUMF is combined with the Iraq War resolution and the president’s Article II power as commander in chief. Even so, Goldsmith adds, “[I]t would have been politically wise and constitutionally prudent for [Obama] to force Congress to vote on and authorize this dramatic expansion of the war on terrorism.’”
      Obama has his reasons for not calling Congress back into session. When he asked Congress in 2012 for authority to use military force against Syria to eliminate the country’s arsenal of chemical weapons, lawmakers balked. Obama withdrew the request and retreated to what proved to be a successful diplomatic solution. “The president doesn’t want to get burned again,” Charles (Cully) Stimson, a Heritage Foundation fellow and former assistant secretary of defense for detainee affairs in the Bush administration, remarked on C-SPAN’s Washington Journal last week [Sept. 25].
      Congress itself has other things on its mind, such as running for re-election and ducking responsibility for a war that may or may not go well. Admittedly, House Speaker John Boehner professes a desire for Congress to address the issue. “I have made it clear that I think the House and the Congress itself should speak,” the Republican speaker said last week in an interview with the liberal web site First Draft.
      Boehner is blaming Obama, however, for Congress’s failure to act. Speaking on ABC’s This Week [Sept. 28], he said Congress was waiting for Obama to send up a War Powers Act resolution for lawmakers to consider.
      Alphonse and Gaston made for a good comic strip back in the day, but they are a poor model for a constitutional republic. “This is not an ideal situation,” American University constitutional law professor Stephen Vladeck, founding editor of the liberal-leaning site JustSecurity, remarked on the C-SPAN program.
      Between them, Obama and Congress owe the nation and the world the deliberation due for a new U.S.-led war. For all the talk of presidential unilateralism a decade ago, Bush twice asked Congress for authority before putting U.S. service members in harm’s way. The constitutional law professor now serving in the White House should do at least as much.

Monday, September 22, 2014

At Supreme Court, Nine Clashing Friends in a Bottle

      Justice Oliver Wendell Holmes Jr. is famously, but perhaps apocryphally, quoted as having described the Supreme Court as “nine scorpions in a bottle.” The description accurately portrayed the court of the early 20th century, but the phrase is now thought to have been coined in the 1950s by Alexander Bickel, a law clerk to the notoriously pugnacious Felix Frankfurter at a time when several of the justices often had their stingers out.
      Today, by all accounts, including their own, The Nine get along just fine. “We’re all good friends,” says Justice Antonin Scalia, an opera lover like Ruth Bader Ginsburg and now an occasional hunting companion for Elena Kagan.
      However friendly they may be, the nine justices of the 2014 Roberts Court clearly have their own personalities and, more importantly, their own views on legal issues. For a quick guide to those personalities and those views, one can profitably spend a couple of hours with American Justice 2014: Nine Clashing Visions on the Supreme Court, a top-hits account of the court’s most recent term by journalist-author-law professor Garrett Epps.
      Epps, who now teaches at the University of Baltimore Law School, has spent the past few years as an itinerant member of the Supreme Court press corps, contributing reported opinion pieces to (Disclosure: Epps is a friend and college classmate.) American Justice is a quickie book, published this month [Sept. 10] before the actual end of the October 2013 term. As Epps notes, each Supreme Court term does not end with the final decision in late June, but continues right up to the beginning of the new term on the traditional First Monday in October.
      Speed was accomplished by dispensing with footnotes or index and by adopting a simple format: nine chapters, profiling each justice through the lens of the justice’s most distinctive opinion of the term. Epps opens with a profile of Chief Justice John G. Roberts Jr. tied to the term’s first major decision: the 5-4 precedent-reversing decision to throw out so-called “aggregate” limits on campaign contributions (McCutcheon v. FEC). He ends with Ruth Bader Ginsburg’s indignant dissent from the end-of-term ruling to allow employers a religious objection to providing contraceptive coverage in employee health plans (Burwell v. Hobby Lobby Stores).
      Epps sketches the justices impressionistically, with his likes and dislikes plainly visible. He likes Elena Kagan for her “brilliant mind” and “razor-sharp it.” He admires Ginsburg for using the birth control dissent “to give a voice to thousands of female workers around the country.”
      In like vein, Epps applauds Sonia Sotomayor (“America’s Justice of Hearts”) for her deeply personal dissent from the ruling to allow states to ban racial preferences in university admissions (Schuette v. Coalition to Defend Affirmative Action). Stephen Breyer may come across to some as a bit of a stuffed shirt, but Epps finds him “unfailingly polite,” “always engaged,” and, more important, committed to a view of government empowered by democratic participation to meet the challenges of the times.
      The conservative justices fare less well in Epps’ telling. He contrasts Roberts’ disavowal at his confirmation of any “agenda” with the court’s record of adopting Republican positions on such contentious issues as campaign finance, affirmative action, public employee unions, and so forth. Antonin Scalia is depicted as expressly championing an ideological, anti-government agenda. Epps credits him with partial success but then mocks him for his alarmist dissents in gay rights cases that lower courts are now citing in pro-gay marriage rulings.
      Epps belittles Scalia one more time by noting Samuel Alito’s emergence as “the new sheriff in town” for authoring the term’s last two decisions: Hobby Lobby and the rebuke to public employee unions (Harris v. Quinn). But the portrait of Alito as a justice who writes opinions “in take-no-prisoners style” with “contempt for those who disagree with him” is hardly flattering.
      Of the ardent conservatives, Clarence Thomas escapes mostly unscathed in Epps’ telling. Epps notes that Thomas has said he drafts his opinions before hearing arguments and he is “notoriously unwilling to compromise his own views” later. As for Thomas’ eight-year silence on the bench, however, Epps excuses it as the self-defensive legacy of Thomas’s slights from white liberals both before and since taking the bench.
      Epps insightfully captures Anthony M. Kennedy as a justice too full of himself but with an innate sense of justice that harks to “a small-town America” of yesteryear. Epps favorably depicts Kennedy’s pivots between the conservative and liberal blocs as the product not of finger-to-the-wind judging but of deeply held views on personal liberty and dignity.
      Weightier books are coming soon, both from card-carrying liberals who say the court’s conservative orientation these days is of a piece with the role it has played through most of history. Erwin Chemerinsky, dean of the University of California-Irvine Law School, presents that argument in The Case Against the Supreme Court [Sept. 25]. Ian Millhiser, legal editor of the progressive web site Think Progress, will expound the same position in Injustices, to be published in March 2015.
      Epps undoubtedly agrees with much of that critique, but more with regret than with outrage. He closes by noting that President Obama and Roberts both assumed their current positions with dreams of reducing the hyperpartisanship prevalent in Washington and the nation. For both men, he writes, “the fabric of this dream had melted into air, into thin air.”

Friday, September 12, 2014

Texas Voter ID Law on Trial in U.S. Court

      Update: Wisconsin will be allowed to put its voter ID law into effect for the November elections following an interim ruling by the Seventh U.S. Circuit Court of Appeals on Friday [Sept. 12]. The panel of three Republican-appointed judges Frank Easterbrook, Diane Sykes, and John Tinder lifted a ruling by a lower court judge that found the law racially discriminatory in violation of the Equal Protection Clause and the federal Voting Rights Act. The unsigned order said “the state’s probability of success” was “sufficiently great” to allow the state to implement the law pending a final decision on its appeal.   
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      The law has long recognized the common-sense assumption that a person intends the natural and probable consequences of one’s actions. So, in law and in common sense, Texas legislators must have intended to make it harder for African Americans and Latinos to vote when they passed the nation’s most stringent voter ID law three years ago.
     However self-evident that proposition may be, lawyers for civil rights groups, the U.S. government, and the state of Texas have spent much of the past two weeks arguing about it in a federal court in Corpus Christi. The trial, expected to conclude with final arguments later this month, is perhaps most critical test of the federal Voting Rights Act since the Supreme Court’s decision one year ago to remove the law’s most powerful enforcement provision.
     Before the decision, Texas was one of the half a dozen Deep South states subject to a requirement to “preclear” any changes in election law with the Justice Department or a federal court based on the state’s past history of voting discrimination. The Supreme Court’s decision in Shelby County v. Holder (2013) struck that provision — known as section 5 — on the ground that it was out of date. As a result, civil rights groups or the federal government now can challenge voting changes that disadvantage minority voters only under the act’s nationwide provision, section 2, which requires proof of intentional discrimination.
     Before Shelby County, a federal court in Washington had refused to allow Texas’ voter ID law to go into effect. After the Supreme Court decision, Gov. Rick Perry immediately moved to put the law into effect. Civil rights groups then joined with the Obama administration in filing suit to block the law under the Voting Rights Act’s section 2.
     The plaintiffs’ case against the law consists of evidence both anecdotal and statistical showing that the voter ID requirement could disenfranchise up to 1.2 million eligible Texas voters, with a far greater impact on African Americans and Latinos than on white voters. The statistics convincingly show the disproportionate impact on minorities. Stephen Ansolabehere, a professor of government at Harvard, said an examination of state data bases indicated that 12 percent of blacks and 9 percent of Latinos lack the kinds of ID needed to satisfy the law and only 4 percent of whites.
     More compelling are the individual accounts from would-be minority voters forced to go through bureaucratic hoops to try to comply with the law. Lead-off witnesses when the trial began on Sept. 2 were two elderly African Americans, both old enough to remember the era of overt racial discrimination in voting in the South.
     Sammie Bates, a 74-year-old grandmother, recalled helping her grandmother count out the money needed to pay the $2 poll tax in her native Mississippi. Under the Texas law, Bates had to spend far more —  $42 to get a copy of her birth certificate as needed to obtain an election ID because she had no other government-issued photo identification.
     Floyd Carrier, an 83-year-old veteran, testified that he tried to vote in November 2013 by presenting an expired driver’s license, a VA card, and his previous voter registration card. Poll workers recognized him, but refused to let him vote because none of those IDs satisfied the law. He went on to pay for $24 for a birth certificate, but it came back with mistakes.
     In theory, the law seems to give Texans ample opportunities to prove their identity in order to vote. Government-issued photo IDs that satisfy the law include a valid Texas driver’s license or state-issued ID card or a U.S. passport, military ID, or citizenship certificate.
     Tellingly, the legislature also allowed a concealed handgun permit to satisfy the law, but not a student or government-worker ID. Allan Lichtman, a historian at American University in Washington, cited those and other provisions as showing that legislators deliberately made it easier in practice for whites and harder for minorities to satisfy the law based on data readily available to them at the time.
     Without any of the specified IDs, the would-be voter needs a birth certificate to get the special election ID. Discrepancies on the birth certificate may be disqualifying, and in any event the would-be voter — with no driver’s license — has to travel to a Department of Public Safety office to get the election ID. Legislators representing African American and Latino districts testified about the problems their constituents have encountered trying to meet the requirements.
     For their part, state officials say they have tried to publicize the law’s requirements and to assist would-be voters in complying. But evidence showed that the state has spent only $400,000 in that effort and to date has issued only 266 election IDs.
     Texas is only one of seven states defending voter ID laws in federal courts. Two other cases are further along. A federal district court struck down Wisconsin’s law; the Seventh U.S. Circuit Court of Appeals is hearing arguments today [Sept. 12] in the state’s appeal. The lower court upheld North Carolina’s law; the Fourth Circuit is expediting the plaintiffs’ appeal.
     In the Texas case, Judge Nelva Gonzales Ramos, an Obama appointee, is scheduled to hear final arguments from the lawyers on Sept. 22. She has not indicated when she is likely to rule.

Sunday, September 7, 2014

False Advertising on Abortion Clinic Laws

      If state legislatures could be sued for false advertising, lawmakers in four Southern states would be facing stiff penalties for the recent spate of laws regulating women’s reproductive health clinics. Alabama, Louisiana, Mississippi, and Texas are among the states to have recently enacted stringent regulations on abortion clinics, ostensibly to protect women’s health but evidently to try to shut the facilities down altogether.
       Federal courts have seen through the subterfuge in all four states, most recently in Texas. A federal judge in Austin has blocked major provisions of Texas’s new law that impose hospital-like building requirements on the outpatient facilities and require clinics’ physicians to have admitting privileges at local hospitals. Federal courts have put similar laws on hold in the three other southern states as well as North Dakota and Wisconsin.
       In his interim ruling issued Aug. 31, U.S. District Court Judge Lee Yeakel said that the regulations, if put into effect, would reduce “meaningful access” to abortion care for women throughout Texas, especially for poor, rural, and disadvantaged women. Yeakel said the regulations were unnecessary because abortions are “extremely safe with particularly low rate of serious complications and virtually no deaths on account of the procedure.”
       Based on those findings, Yeakel said the law runs afoul of Supreme Court precedents prohibiting abortion regulations that have an “undue burden” on women’s constitutionally protected right to the procedure. While unnecessary to his ruling, Yeakel concluded that the new building requirements in particular — likely to cost a clinic $1 million or more — were “intended to close existing licensed clinics.”
       Yeakel noted that the law grandfathered existing outpatient surgery centers that perform far riskier procedures. In other cases, courts have noted that admitting privileges for abortion providers are unnecessary and that hospitals can deny admitting privileges for any number of reasons, including opposition to abortion.
        Yeakel’s ruling is setting up a showdown of sorts at the Fifth U.S. Circuit Court of Appeals, the federal appeals court with jurisdiction over Texas and two of the three other southern states with similar litigation in recent months: Mississippi and Louisiana. A three-judge panel will hear arguments on Friday [Sept. 12] in the state’s effort to lift Yeakel’s injunction.
       The Fifth Circuit, perhaps the most conservative of the federal appeals courts, greenlighted the Texas law in an initial ruling in March. But a different three-judge panel blocked Mississippi’s admitting-privileges law from taking effect in a split decision issued on July 29.
       The two panels came to different conclusions in part based on different factual contexts. In the Mississippi case, the court found that the law would shutter Mississippi’s only existing abortion clinic (Jackson Women’s Health Organization v. Currier). The majority in that decision noted that in the Texas case a different panel had allowed the Texas law to take effect after finding that some number of abortion clinics would remain open in the state (Planned Parenthood of Greater Texas v. Abbott).
       The different results also reflect the different composition of the two appellate panels. The decision in the Texas case was written by Judge Edith Jones, a Reagan appointee and strong conservative who was on President George W. Bush’s short list for a Supreme Court appointment; two Bush43 appointees joined the decision: Jennifer Elrod and Catharina Haynes. The Mississippi decision was written by E. Grady Jolly, a Mississippian appointed by Reagan, and joined by Obama appointee Stephen Higginson; the dissenter was Emilio Garza, a strong conservative appointed to the district court by Reagan and elevated to the Fifth Circuit by Bush41.
       Yeakel had initially found the Texas law unconstitutional, but the Fifth Circuit panel ruled the measure was not unconstitutional on its face. That decision allowed Yeakel, however, to hear the pleas from individual clinics that the requirements would have unconstitutional effects as applied to them. In his new decision, Yeakel found that the law would leave the nation’s second largest state with only seven or perhaps eight abortion clinics, all in major metropolitan areas. He noted in particular that West Texas and the Rio Grande Valley would have none. Based on his injunction, the McAllen clinic was to reopen on Sept. 6.
       In acknowledging that effect, the state’s lawyers suggested that women in West Texas could drive across the state line to New Mexico, which has no comparable law. As Yeakel noted, that stance undermined the state’s argument that the law was needed to protect women’s health.
      Yeakel also skewered the state’s defense that even with the law in effect, 86 percent of Texas women would be within 150 miles of an abortion clinic. That distance was a considerable burden of itself, Yeakel said, and the burden would be all the greater because of a separate Texas law requiring a 24-hour waiting period before an abortion.
      The Texas law — known as HB 2 — was enacted in 2013 only after the nationally-watched filibuster by state senator Wendy Davis, who is now running for governor as the Democratic nominee against the state’s Republican attorney general, Greg Abbott. The case cannot be understood without recognizing the political context.
      As Yeakel notes, a woman’s right to an abortion remains controversial 40 years after Roe v. Wade; Texas’s law, he said, would operate just as drastically as a complete ban on abortions. The nation’s eyes will be upon Texas to see whether the tactic can succeed.