As the Supreme Court listens to an extraordinary six hours of arguments this week (March 26-28) on the constitutionality of President Obama’s health-care reform, the justices will face the challenge of finding their way to a legal ruling on a case with politics written all over it.
Never before has a president’s signature domestic policy initiative been pending at the Supreme Court just as the president is facing re-election before a closely divided nation. And never before have the justices been so predictably divided on legal issues based on the political party of the president who appointed them.
Both sides in the debate over the law — fully entitled, the Patient Protection and Affordable Care Act — are doing their best to remind the justices of the political stakes. Placard-carrying demonstrators, pro and con, will mass on the sidewalks in front of the Supreme Court building all three days. Liberal groups have secured use of the United Methodist Church building across the street to set up a media center, where supporters of the law will be readily available to reporters and talk show hosts for comment (read: spin) on the case.
The cases — three of them: Dep’t of Health and Human Services v. Florida, National Federation of Independent Business v. Sebelius, and Florida v. Dep’t of Health and Human Services — have attracted a record-busting 136 friend-of-the-court briefs, way past the previous record of 103 amicus briefs in the 2003 affirmative action cases. One news organization calculated that vertically stacked the briefs would stand about two feet high.
The court acknowledged the stakes in the case with its decision to post an audio recording of the arguments on the court’s web site within hours after the end of each session. The press release announcing the same-day availability noted the “extraordinary interest” in the case.
Would-be spectators hoping for a seat in the courtroom were already camped out on the Supreme Court plaza on Friday, three days in advance of Monday’s session. Those who get in will be disappointed perhaps to learn that the issue that day is whether the challenge to the provision requiring everyone to have health insurance is premature under a law called the Anti-Injunction Act.
The big showdown on the individual mandate — supporters call it the “minimum coverage” provision — comes in a two-hour session on Tuesday that will pit Solicitor General Donald Verrilli for the government against former solicitor general Paul Clement for the states and former Reagan administration Justice Department official Michael Carvin for the National Federation of Independent Business and individual challengers. Verrilli and Clement will go head-to-head again on Wednesday in the states’ somewhat overlooked challenge to the law’s expansion of Medicaid coverage.
The first-level handicapping of the justices’ votes puts the four Republican-appointed conservatives on one side, ready to rule for the challengers, and the four Democratic-appointed liberals on the other, locked in for the administration. The tie-breaking vote belongs, as it often does, to Justice Anthony M. Kennedy, the Republican appointee nominated in 1987 only after the Democratic-controlled Senate rejected the ardent conservative Robert Bork.
Kennedy’s pivotal role was exemplified in the 5-4 decisions just last week (March 21) newly recognizing a constitutional right to effective assistance of counsel for criminal defendants in plea bargaining. Kennedy’s alignment with the liberal bloc, over a vigorous dissent by Justice Antonin Scalia for the conservatives, reflected Kennedy’s instinctive support for fairness in court proceedings.
Opponents of the health-care law hope instead to appeal to two of Kennedy’s other instincts seen in his opinions through the years: support for individual liberty and for states’ sovereignty. Under their analysis, Kennedy could lead a five-vote majority to find the individual insurance mandate an impermissible intrusion on individual freedom and the Medicaid expansion an impermissible financial mandate on the states.
All along, supporters of the law have been pushing a second-level handicapping that views Kennedy, Scalia, and Chief Justice John G. Roberts Jr. as possible, maybe even likely, votes to uphold the law. They point to Kennedy’s opinions stressing the importance of a national economy as evidence of his broad view of Congress’s powers under the Commerce Clause. They note that Scalia took a broad view of Congress’s powers under the Constitution’s Necessary and Proper Clause in the 2005 decision elevating the government’s anti-drug laws over California’s medical marijuana initiative (Gonzales v. Raich). And they note that Roberts similarly evinced a broad view of the Necessary and Proper Clause in joining the 2010 decision upholding Congress’s power to require civil commitment of sexual offenders after completion of prison sentences (United States v. Comstock).
Supporters of the law believe they have the weight of legal precedent on the side. Opponents argue the individual health insurance mandate is literally unprecedented and the Medicaid expansion an exponentially greater financial imposition on the states than any previous federal spending mandates.
On the eve of the arguments, Supreme Court watchers are predicting the law will be upheld. Some in the press corps, such as the Washington Post’s Robert Barnes and the New York Times’s semi-retired Linda Greenhouse, were emphasizing legal analysis. Others, such as Huffington Post’s Michael Sacks and Slate’s Dahlia Lithwick, view Roberts as likely to lead the court away from a political confrontation on this issue in order to save the court’s political capital for later fights on bigger issues, including the new challenge to racial preferences in college admissions set for next term.
The justices will vote on the cases this week, but the rest of us will not know the results until the written decisions are issued, presumably on the court’s final decision day at the end of June.
Sunday, March 25, 2012
Sunday, March 18, 2012
In New Jersey, a Just Verdict for a Hateful Crime
In the movie American Pie, Jim Levenstein’s friends play a dirty trick on him by surreptitiously setting up a Web cam to live-stream for all to view Jim’s much anticipated first sexual experience. The prank becomes all the more embarrassing when Jim, teenage testosterone surging, reaches the peak of excitement with his boxers still on, barely past second base.
The makers of the 1999 film played the episode for laughs, and funny it is. The four-minute clip of the scene has a continuing life on You Tube, with more than 68,000 views at last count.
On the surface, Dharun Ravi played a similar prank on the nights of September 19 and 21, 2010, when the Rutgers University freshman set up a Web cam to watch his roommate Tyler Clementi in a sexual encounter. But Ravi now faces a possible prison sentence of up to 10 years after a state court jury in New Jersey convicted him on Friday (March 16) of 24 criminal counts, including violations of the state’s hate crime law.
This story differs from the movie, of course, because Clementi, an 18-year-old gay boy, committed suicide the day after Ravi's second, unsuccessful spy-cam set-up by jumping into the Hudson River from the George Washington Bridge. Clementi’s suicide made national news, feeding into a national campaign by gay rights groups against the bullying, harassment and worse directed against so many gay, lesbian, bisexual and transgender individuals.
Whatever Ravi’s moral responsibility might be, he could not be held legally responsible for Clementi’s death. But the 35-count indictment brought by prosecutors in New Brunswick charged him with invasion of privacy, bias intimidation and obstruction of justice.
Like Clementi’s death, the prosecution made national headlines, but also attracted controversy from the outset and all the more so with the verdict. Within hours of the conviction, Jacob Sullum, senior editor of the libertarian magazine Reason, complained that Ravi had been convicted of “a hateless hate crime.” The verdict, dubious on the evidence in Sullum’s view, also compounded what he called “the injustice of imposing extra punishment for crimes motivated by bigotry.”
Hate crime laws have drawn this criticism for decades even as they have been enacted and expanded by Congress and legislatures in virtually all the states. Libertarian and conservative critics view the laws as sops to political constituencies — women, racial and ethnic minorities and LGBT individuals — that not incidentally infringe on freedom of expression: in effect, thought crimes.
The criticism has been rejected by, among others, the U.S. Supreme Court. In upholding Wisconsin’s hate-crime law, Chief Justice William H. Rehnquist spoke for a unanimous court in endorsing the rationale the state offered for the law (Wisconsin v. Mitchell, 1993). “Bias-motivated crimes,” he wrote, paraphrasing the state’s argument, “are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”
A decade later, Justice Clarence Thomas, the court’s most libertarian-minded member, similarly embraced that view in rejecting a First Amendment challenge to Virginia’s anti-cross burning law. “Cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence,” Thomas wrote in Virginia v. Black (2003). “Those who hate cannot terrorize and intimidate to make their point," he concluded.
Ravi was charged under a New Jersey law that provides increased penalties for specified crimes if committed with “a purpose to intimidate an individual or group” on the basis of specific characteristics, including sexual orientation. The law also provides the same enhancement if the offender commits the crime knowing that it would result in bias-intimidation or “under circumstances” that in fact caused an individual to be intimidated because of a specified bias.
The New Jersey jury seemingly worked through the statute and the evidence with some care. The panel found no intentional bias intimidation in Ravi’s initial spy-camming and acquitted him on all counts in relation to Clementi’s hook-up partner. But the jury found Clementi was intimidated after the first evening, based in part on Clementi’s obsessive checking of Ravi’s twitter account once he had learned of the spying. And the panel agreed that Ravi’s actions on the second night did constitute intentional violation of the law.
Sullum criticizes the verdict in part by attacking the yet-unimposed sentence as too severe. Ravi rejected a plea bargain that called for no prison time, only 600 hours of community service. Character witnesses testified that Ravi is not anti-gay. But he was charged with and found guilty of anti-gay conduct. And his demeanor during the trial gave no indication that Ravi has yet to feel remorse for what he did.
As with cross-burning, anti-gay bullying and harassment comes burdened with a history: the history of violence and intimidation against gay people. The intimidation is particularly hurtful for young people still working out their individual sexualities. That’s why Ravi’s offense was no sophomoric prank. By singling out Clementi as different — because of his sexuality — Ravi was rightly held responsible for making his roommate feel vulnerable to all the harm that anti-gay prejudice can bring about.
Ravi’s sentencing is set for May 21; New Jersey law gives the judge some discretion in the length of the sentence. Defense lawyers say they have grounds to challenge the verdict; appellate rulings will come a good many months in the future. For now, though, Ravi’s conviction appears to be a just verdict for a hateful crime.
The makers of the 1999 film played the episode for laughs, and funny it is. The four-minute clip of the scene has a continuing life on You Tube, with more than 68,000 views at last count.
On the surface, Dharun Ravi played a similar prank on the nights of September 19 and 21, 2010, when the Rutgers University freshman set up a Web cam to watch his roommate Tyler Clementi in a sexual encounter. But Ravi now faces a possible prison sentence of up to 10 years after a state court jury in New Jersey convicted him on Friday (March 16) of 24 criminal counts, including violations of the state’s hate crime law.
This story differs from the movie, of course, because Clementi, an 18-year-old gay boy, committed suicide the day after Ravi's second, unsuccessful spy-cam set-up by jumping into the Hudson River from the George Washington Bridge. Clementi’s suicide made national news, feeding into a national campaign by gay rights groups against the bullying, harassment and worse directed against so many gay, lesbian, bisexual and transgender individuals.
Whatever Ravi’s moral responsibility might be, he could not be held legally responsible for Clementi’s death. But the 35-count indictment brought by prosecutors in New Brunswick charged him with invasion of privacy, bias intimidation and obstruction of justice.
Like Clementi’s death, the prosecution made national headlines, but also attracted controversy from the outset and all the more so with the verdict. Within hours of the conviction, Jacob Sullum, senior editor of the libertarian magazine Reason, complained that Ravi had been convicted of “a hateless hate crime.” The verdict, dubious on the evidence in Sullum’s view, also compounded what he called “the injustice of imposing extra punishment for crimes motivated by bigotry.”
Hate crime laws have drawn this criticism for decades even as they have been enacted and expanded by Congress and legislatures in virtually all the states. Libertarian and conservative critics view the laws as sops to political constituencies — women, racial and ethnic minorities and LGBT individuals — that not incidentally infringe on freedom of expression: in effect, thought crimes.
The criticism has been rejected by, among others, the U.S. Supreme Court. In upholding Wisconsin’s hate-crime law, Chief Justice William H. Rehnquist spoke for a unanimous court in endorsing the rationale the state offered for the law (Wisconsin v. Mitchell, 1993). “Bias-motivated crimes,” he wrote, paraphrasing the state’s argument, “are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”
A decade later, Justice Clarence Thomas, the court’s most libertarian-minded member, similarly embraced that view in rejecting a First Amendment challenge to Virginia’s anti-cross burning law. “Cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence,” Thomas wrote in Virginia v. Black (2003). “Those who hate cannot terrorize and intimidate to make their point," he concluded.
Ravi was charged under a New Jersey law that provides increased penalties for specified crimes if committed with “a purpose to intimidate an individual or group” on the basis of specific characteristics, including sexual orientation. The law also provides the same enhancement if the offender commits the crime knowing that it would result in bias-intimidation or “under circumstances” that in fact caused an individual to be intimidated because of a specified bias.
The New Jersey jury seemingly worked through the statute and the evidence with some care. The panel found no intentional bias intimidation in Ravi’s initial spy-camming and acquitted him on all counts in relation to Clementi’s hook-up partner. But the jury found Clementi was intimidated after the first evening, based in part on Clementi’s obsessive checking of Ravi’s twitter account once he had learned of the spying. And the panel agreed that Ravi’s actions on the second night did constitute intentional violation of the law.
Sullum criticizes the verdict in part by attacking the yet-unimposed sentence as too severe. Ravi rejected a plea bargain that called for no prison time, only 600 hours of community service. Character witnesses testified that Ravi is not anti-gay. But he was charged with and found guilty of anti-gay conduct. And his demeanor during the trial gave no indication that Ravi has yet to feel remorse for what he did.
As with cross-burning, anti-gay bullying and harassment comes burdened with a history: the history of violence and intimidation against gay people. The intimidation is particularly hurtful for young people still working out their individual sexualities. That’s why Ravi’s offense was no sophomoric prank. By singling out Clementi as different — because of his sexuality — Ravi was rightly held responsible for making his roommate feel vulnerable to all the harm that anti-gay prejudice can bring about.
Ravi’s sentencing is set for May 21; New Jersey law gives the judge some discretion in the length of the sentence. Defense lawyers say they have grounds to challenge the verdict; appellate rulings will come a good many months in the future. For now, though, Ravi’s conviction appears to be a just verdict for a hateful crime.
Monday, March 12, 2012
“Judicial Process” Needed for Targeted Killings
National security was at stake, President Richard Nixon contended, when he ordered the FBI early in the 1970s to wiretap the telephones of suspected domestic subversives. The threat was too serious and too urgent, Nixon and his lawyers reasoned, to go to court first for warrants to authorize the taps.
In a unanimous opinion, the Supreme Court decisively rejected Nixon’s claim of unilateral authority to order electronic surveillance in the name of national security. Justice Lewis F. Powell’s opinion in United States v. U.S. District Court, 407 U.S. 297 (1972), noted “the difficulty of defining the domestic security interest” and “the danger of abuse” in ruling that the executive could not bypass the courts even when supposedly necessary to keep the country safe.
Today, the Obama administration is claiming an arguably more far-reaching executive power: the power to kill a U.S. citizen thought to be actively engaged in plotting terrorist attacks against the United States. From the administration’s view, the need to give the executive a relatively free hand is as clear as it was to Nixon. And the threat posed by Al Qaeda terrorists is evidently much more real than the supposed danger posed by the Vietnam-era political dissidents.
Despite its best efforts, however, the administration has not made a convincing case for the necessity of bypassing the courts in carrying out targeted killings. The claimed power to kill a U.S. citizen away from an active combat zone differs in kind from the president’s traditional powers as commander in chief. And the practical problems that administration officials point to, including the need for secrecy and speed, can be accommodated by a carefully designed system of judicial review.
Attorney General Eric Holder laid out the legal rationale for targeted killings of U.S. citizen-al Qaeda terrorists in rationale in a speech at Northwestern University Law School last week (March 5). Without naming any individual, Holder was evidently attempting to justify the use of a CIA-controlled drone in the Yemeni desert in late September to kill Anwar al-Awlaki, a U.S. citizen and ranking Al Qaeda operative. Awlaki was thought to have been the architect of the foiled bombing attempt of a U.S.-bound aircraft on Christmas Day 2009 by “underwear bomber” Umar Farouk Abdulmutallab as well as the foiled plot against U.S. cargo planes the next fall.
On paper, the administration’s rules appear to be calibrated to comply with legal as well as moral requirements. Holder laid out three conditions (“at least”) that would make it lawful to use “lethal force” against a senior al Qaeda leader who was “actively engaged in planning to kill Americans.” The government first must have determined, “after a thorough and careful review,” that the individual poses “an imminent threat of violent attack against the United States.” Second, “capture is not feasible.” And, third, the operation “must be conducted in a manner consistent with applicable law of war principles” – which he later listed as including the need to target only military or cooperating civilians and to minimize collateral damage.
Holder also acknowledged the domestic law consideration, taken straight from the Bill of Rights, that the government cannot deprive a citizen of “life, liberty or property” without “due process of law.” But he was unbending in rejecting any judicial role for passing on the executive’s decision to kill a U.S. citizen. “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security,” Holder said. “The Constitution guarantees due process, not judicial process.”
National security operations are “core functions” of the executive branch, Holder explained, that require decision-making based on information and expertise that only the executive branch can possess in real time. To buttress the point, Holder pointed to an unspecified court decision that he said “makes clear” that the president needs no judicial approval before using force against a senior leader of a foreign terrorist organization “even if that individual happens to be a U.S. citizen.”
In that decision, U.S. District Court Judge John Bates in December 2010 rejected a suit by al-Awlaki’s father seeking to nullify the targeted killing order against his son. In addition to rejecting the father’s legal standing to bring the suit, Bates also ruled that the suit presented a political question, not one for the courts to decide.
The course of the suit, however, belies one of the administration’s arguments — that time considerations preclude the courts’ involvement. Al-Awlaki was on the target list for well over a year before his death. The administration had ample time to lay out the evidence against al Awlaki. And contrary to Holder’s suggestion judicial review could be accomplished without putting a judge in the situation room to pass on specific tactical decisions.
The Foreign Intelligence Surveillance Court, created by Congress to review requests for foreign intelligence wiretaps, could be a model to look to in creating judicial review of targeted killings, as the New York Times has advocated editorially. That court has provided some independent check on potential executive branch overreaching even if its record of nearly always approving electronic surveillance requests disappoints civil libertarians.
Obama is not Nixon, and al Qaeda is not SDS. But the courts have a role in protecting U.S. citizens’ rights even in times of real wars and real dangers. A judicial process for targeted killings could safeguard those rights without jeopardizing national security.
In a unanimous opinion, the Supreme Court decisively rejected Nixon’s claim of unilateral authority to order electronic surveillance in the name of national security. Justice Lewis F. Powell’s opinion in United States v. U.S. District Court, 407 U.S. 297 (1972), noted “the difficulty of defining the domestic security interest” and “the danger of abuse” in ruling that the executive could not bypass the courts even when supposedly necessary to keep the country safe.
Today, the Obama administration is claiming an arguably more far-reaching executive power: the power to kill a U.S. citizen thought to be actively engaged in plotting terrorist attacks against the United States. From the administration’s view, the need to give the executive a relatively free hand is as clear as it was to Nixon. And the threat posed by Al Qaeda terrorists is evidently much more real than the supposed danger posed by the Vietnam-era political dissidents.
Despite its best efforts, however, the administration has not made a convincing case for the necessity of bypassing the courts in carrying out targeted killings. The claimed power to kill a U.S. citizen away from an active combat zone differs in kind from the president’s traditional powers as commander in chief. And the practical problems that administration officials point to, including the need for secrecy and speed, can be accommodated by a carefully designed system of judicial review.
Attorney General Eric Holder laid out the legal rationale for targeted killings of U.S. citizen-al Qaeda terrorists in rationale in a speech at Northwestern University Law School last week (March 5). Without naming any individual, Holder was evidently attempting to justify the use of a CIA-controlled drone in the Yemeni desert in late September to kill Anwar al-Awlaki, a U.S. citizen and ranking Al Qaeda operative. Awlaki was thought to have been the architect of the foiled bombing attempt of a U.S.-bound aircraft on Christmas Day 2009 by “underwear bomber” Umar Farouk Abdulmutallab as well as the foiled plot against U.S. cargo planes the next fall.
On paper, the administration’s rules appear to be calibrated to comply with legal as well as moral requirements. Holder laid out three conditions (“at least”) that would make it lawful to use “lethal force” against a senior al Qaeda leader who was “actively engaged in planning to kill Americans.” The government first must have determined, “after a thorough and careful review,” that the individual poses “an imminent threat of violent attack against the United States.” Second, “capture is not feasible.” And, third, the operation “must be conducted in a manner consistent with applicable law of war principles” – which he later listed as including the need to target only military or cooperating civilians and to minimize collateral damage.
Holder also acknowledged the domestic law consideration, taken straight from the Bill of Rights, that the government cannot deprive a citizen of “life, liberty or property” without “due process of law.” But he was unbending in rejecting any judicial role for passing on the executive’s decision to kill a U.S. citizen. “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security,” Holder said. “The Constitution guarantees due process, not judicial process.”
National security operations are “core functions” of the executive branch, Holder explained, that require decision-making based on information and expertise that only the executive branch can possess in real time. To buttress the point, Holder pointed to an unspecified court decision that he said “makes clear” that the president needs no judicial approval before using force against a senior leader of a foreign terrorist organization “even if that individual happens to be a U.S. citizen.”
In that decision, U.S. District Court Judge John Bates in December 2010 rejected a suit by al-Awlaki’s father seeking to nullify the targeted killing order against his son. In addition to rejecting the father’s legal standing to bring the suit, Bates also ruled that the suit presented a political question, not one for the courts to decide.
The course of the suit, however, belies one of the administration’s arguments — that time considerations preclude the courts’ involvement. Al-Awlaki was on the target list for well over a year before his death. The administration had ample time to lay out the evidence against al Awlaki. And contrary to Holder’s suggestion judicial review could be accomplished without putting a judge in the situation room to pass on specific tactical decisions.
The Foreign Intelligence Surveillance Court, created by Congress to review requests for foreign intelligence wiretaps, could be a model to look to in creating judicial review of targeted killings, as the New York Times has advocated editorially. That court has provided some independent check on potential executive branch overreaching even if its record of nearly always approving electronic surveillance requests disappoints civil libertarians.
Obama is not Nixon, and al Qaeda is not SDS. But the courts have a role in protecting U.S. citizens’ rights even in times of real wars and real dangers. A judicial process for targeted killings could safeguard those rights without jeopardizing national security.
Sunday, March 4, 2012
A Free Pass for Foreign Companies for Rights Abuses?
Update: In an unusual development, the Supreme Court has asked for a new round of briefs and arguments on an issue that could narrow further than already indicated U.S. courts’ jurisdiction over international law violations in other countries. The court on March 5 directed attorneys to file supplemental briefs on the question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The case will be reargued in the next term. A ruling to bar jurisdiction over such cases would upset lower court precedents dating from the 1980 Filártiga decision described in my original post.
Le Carre’s story is fiction, of course. But the former British intelligence agent built his reputation as a novelist on intricate plots constructed with enough factual knowledge and research to be plausible. And the history of U.S. and multinational corporations in Third World countries gives credence to the idea that big companies at times might either participate in or turn a blind eye to human rights abuses committed for the benefit of their exploitative operations.
The Movement for the Survival of the Ogoni People thinks that corporate conduct of this sort not only can happen, but did — in the oil-rich Niger delta region of Nigeria in the early 1990s. Ogoni activists waged a campaign against the environmental and financial rape of their homeland by the British- and Dutch-based Royal Dutch Shell. To counter the campaign, Shell called on the military dictatorship of Gen. Sani Abacha, which responded with a brutal crackdown reported to have claimed 2,000 lives and displaced 80,000 people.
The victims included Dr. Barinem Kiobel, who was arrested in 1994 along with other leaders of the movement. The so-called Ogoni 9 were allegedly held incommunicado, tortured, and tried by a kangaroo court before they were executed only 10 days after their convictions.
Today, Kiobel’s widow, Esther, is seeking justice in U.S. courts under a federal law enacted at the nation’s founding to create a legal remedy for violations of international law. But if Supreme Court justices’ questions during arguments last week (Feb. 29) are any indication — and they often are — Kiobel and the other plaintiffs are likely to be have the courthouse door shut in their faces with a decision shielding foreign corporations from responsibility for human rights abuses in foreign countries, at least in U.S. courts.
Kiobel is the first of 12 named plaintiffs in suit filed in federal court in New York City in 2002 against Royal Dutch Shell under the Alien Tort Statute. The law, passed by the First Congress in 1789, gives federal courts jurisdiction over “any civil action by an alien, for a tort only, committed in violation of the law of nations or of a treaty of the United States,” 28 U.S.C. § 1350. In their complaint, the plaintiffs alleged that Shell participated with the Abacha dictatorship in torture, extra-judicial executions, and crimes against humanity directed against the Ogoni activists.
The Alien Tort Statute had gone all but unnoticed for most of U.S. history until human rights lawyers used it in the late 1970s to bring a suit in behalf of a Paraguayan asylee, Dolly Filártiga, whose teenage brother Joelito was killed at the direction of a Paraguayan police inspector, Americo Norberto Peña-Irala. Both Filártiga and Peña-Irala were in the United States: Filártiga as an asylee, Peña-Irala on an expired visitor’s visa. In a decision now viewed as established precedent, the Second U.S. Circuit Court of Appeals said the 1789 law gave federal courts jurisdiction over the case (Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)). The Filártigas eventually won a $10 million judgment, never collected.
Since 1980, human rights lawyers have filed similar suits in U.S. courts, with only limited success, against individuals as well as corporations. In 2004, the Supreme Court officially ratified such causes of action but only for clearly recognized violations of international law (Sosa v. Alvarez-Machain). And in an unelaborated footnote, the court raised without resolving the question whether international law would recognize holding a corporation liable for violations.
In the Ogonis’ case, a sharply divided Second Circuit panel seized on that footnote to dismiss the suit even though Shell’s high-priced legal team had never raised the issue. In dissent, Judge Pierre Leval insisted that corporate liability for torts was recognized in 1789 and is well established today. The pivotal vote was cast by Chief Judge Dennis Jacobs, who explained in the later decision to deny a rehearing that he saw little need to hold corporations responsible. “Examples of corporations in the atrocity business are few in history,” Jacobs wrote.
The Roberts Court’s conservative majority made clear in last week’s arguments in Kiobel v. Royal Dutch Petroleum Co. they have little use for the suit either. “What business does a case like that have in the courts of the United States?” Justice Samuel A. Alito Jr. asked the plaintiffs’ attorney, Paul Hoffman, a longtime civil liberties lawyer from California.
Earlier, Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy both signaled unmistakably that they saw no basis in international law for haling a foreign company into U.S. courts even for egregious human rights violations. Liberal justices made no headway in shoring up the case, even when Justice Ruth Bader Ginsburg noted the post-World War II precedent of holding I.G. Farben responsible for the German chemical firm's role in the Holocaust.
Shell denies responsibility for the Abacha regime’s abuses — and perhaps the company was only a passive observer. U.S. courts could provide a forum for resolving that issue, but not if the Supreme Court gives foreign corporations a free pass as it appears inclined to do.
* * *
In John Le Carre’s The Constant Gardener, an ethically challenged multinational drug company colludes with a fictitious Kenyan government in lethal testing of an experimental drug on unwitting TB patients. The company covers up its activities with a campaign of intimidation that includes the murders of a human rights activist and eventually her husband, the novel’s title character.Le Carre’s story is fiction, of course. But the former British intelligence agent built his reputation as a novelist on intricate plots constructed with enough factual knowledge and research to be plausible. And the history of U.S. and multinational corporations in Third World countries gives credence to the idea that big companies at times might either participate in or turn a blind eye to human rights abuses committed for the benefit of their exploitative operations.
The Movement for the Survival of the Ogoni People thinks that corporate conduct of this sort not only can happen, but did — in the oil-rich Niger delta region of Nigeria in the early 1990s. Ogoni activists waged a campaign against the environmental and financial rape of their homeland by the British- and Dutch-based Royal Dutch Shell. To counter the campaign, Shell called on the military dictatorship of Gen. Sani Abacha, which responded with a brutal crackdown reported to have claimed 2,000 lives and displaced 80,000 people.
The victims included Dr. Barinem Kiobel, who was arrested in 1994 along with other leaders of the movement. The so-called Ogoni 9 were allegedly held incommunicado, tortured, and tried by a kangaroo court before they were executed only 10 days after their convictions.
Today, Kiobel’s widow, Esther, is seeking justice in U.S. courts under a federal law enacted at the nation’s founding to create a legal remedy for violations of international law. But if Supreme Court justices’ questions during arguments last week (Feb. 29) are any indication — and they often are — Kiobel and the other plaintiffs are likely to be have the courthouse door shut in their faces with a decision shielding foreign corporations from responsibility for human rights abuses in foreign countries, at least in U.S. courts.
Kiobel is the first of 12 named plaintiffs in suit filed in federal court in New York City in 2002 against Royal Dutch Shell under the Alien Tort Statute. The law, passed by the First Congress in 1789, gives federal courts jurisdiction over “any civil action by an alien, for a tort only, committed in violation of the law of nations or of a treaty of the United States,” 28 U.S.C. § 1350. In their complaint, the plaintiffs alleged that Shell participated with the Abacha dictatorship in torture, extra-judicial executions, and crimes against humanity directed against the Ogoni activists.
The Alien Tort Statute had gone all but unnoticed for most of U.S. history until human rights lawyers used it in the late 1970s to bring a suit in behalf of a Paraguayan asylee, Dolly Filártiga, whose teenage brother Joelito was killed at the direction of a Paraguayan police inspector, Americo Norberto Peña-Irala. Both Filártiga and Peña-Irala were in the United States: Filártiga as an asylee, Peña-Irala on an expired visitor’s visa. In a decision now viewed as established precedent, the Second U.S. Circuit Court of Appeals said the 1789 law gave federal courts jurisdiction over the case (Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)). The Filártigas eventually won a $10 million judgment, never collected.
Since 1980, human rights lawyers have filed similar suits in U.S. courts, with only limited success, against individuals as well as corporations. In 2004, the Supreme Court officially ratified such causes of action but only for clearly recognized violations of international law (Sosa v. Alvarez-Machain). And in an unelaborated footnote, the court raised without resolving the question whether international law would recognize holding a corporation liable for violations.
In the Ogonis’ case, a sharply divided Second Circuit panel seized on that footnote to dismiss the suit even though Shell’s high-priced legal team had never raised the issue. In dissent, Judge Pierre Leval insisted that corporate liability for torts was recognized in 1789 and is well established today. The pivotal vote was cast by Chief Judge Dennis Jacobs, who explained in the later decision to deny a rehearing that he saw little need to hold corporations responsible. “Examples of corporations in the atrocity business are few in history,” Jacobs wrote.
The Roberts Court’s conservative majority made clear in last week’s arguments in Kiobel v. Royal Dutch Petroleum Co. they have little use for the suit either. “What business does a case like that have in the courts of the United States?” Justice Samuel A. Alito Jr. asked the plaintiffs’ attorney, Paul Hoffman, a longtime civil liberties lawyer from California.
Earlier, Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy both signaled unmistakably that they saw no basis in international law for haling a foreign company into U.S. courts even for egregious human rights violations. Liberal justices made no headway in shoring up the case, even when Justice Ruth Bader Ginsburg noted the post-World War II precedent of holding I.G. Farben responsible for the German chemical firm's role in the Holocaust.
Shell denies responsibility for the Abacha regime’s abuses — and perhaps the company was only a passive observer. U.S. courts could provide a forum for resolving that issue, but not if the Supreme Court gives foreign corporations a free pass as it appears inclined to do.
Sunday, February 26, 2012
Will Roberts Court Take Fresh Look at Citizens United?
The organizers of the independent political committee Western Tradition Partnership, Inc., made no secret of the advantages to likeminded donors in Montana who might want to keep their contributions under wraps. “There’s no limit to how much you can give,” the organizers promised in a promotional mailing two years ago, despite Montana’s concededly “strict limits” on political donations.
The mailing offered the opportunity not only for unlimited contributions but also for unlimited privacy. “We’re not required to report the name or the amount of any contribution that we receive,” the mailer continued. “So, if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”
The justices of the Montana Supreme Court saw the incorporated Colorado-based group’s advertised availability as a conduit for anonymous political spending as a threat to the political marketplace not to mention the state’s campaign finance laws. So, in a 5-2 decision, the court ruled on Dec. 30 that Western Tradition Partnership, along with another corporate-organized group, the Montana Shooting Sports Association, and a small drywall company, Champion Painting, were subject to the state’s century-old ban on corporate spending in political campaigns.
The Montana justices were fully aware of the U.S. Supreme Court’s Citizens United decision in 2010, some months before Western Tradition Partnership’s mailing. In a bitterly divided 5-4 decision, the Roberts Court’s conservative majority established a First Amendment right to unlimited political spending by corporations (and labor unions) in federal elections. But Montana’s law survived, the state court’s majority ruled, because the state’s history with corrupt corporate spending — think: Anaconda Copper — gave Montana a “compelling interest” in keeping corporations out of state campaigns.
The case is now pending at the U.S. Supreme Court, which granted a stay on Feb. 17 as requested by the renamed American Tradition Partnership (ATP). Lawyers for ATP, led by the longtime foe of campaign finance regulation James Bopp, accused the Montana court of “a blatant disregard of its duty to follow” U.S. Supreme Court decisions.
The stay in American Tradition Partnership, Inc. v. Bullock, 11A762, was issued on Feb. 17 without recorded dissent. But in a one-paragraph statement, two of the dissenting justices in Citizens United envisioned using the case as a vehicle for re-examining the earlier ruling.
“Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n [citation omitted] make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” Justice Ruth Bader Ginsburg wrote, quoting from the majority opinion. “A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Even so, Ginsburg said she was voting to grant the stay “[b]ecause lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.” Justice Stephen G. Breyer joined the statement.
A waggish Court watcher might say that critics hoping for a reversal of Citizens United with the ink on the ruling barely dry have two chances: slim and none. The Court decided the case after extensive briefing and extended arguments with full awareness of the clashing values. The ruling represented the culmination of a series of steps carefully orchestrated by Chief Justice John G. Roberts Jr. to widen the scope for political speech at the expense of campaign finance laws. And it represented a vindication for Justice Anthony M. Kennedy, the author of the majority opinion, who had dissented two decades earlier when the Court upheld bans on corporate spending in political races.
Still, no less an observer than Linda Greenhouse, the now semi-retired New York Times Supreme Court watcher, acknowledged in the Times’s Opinionator blog that the Ginsburg-Breyer demarche gave her pause in her skepticism. Greenhouse credits Ginsburg and Breyer with inside-the-Court savvy and notes that their statement may at least “keep the public conversation going.”
Greenhouse notes as a possible historical precedent, the FDR-era Court’s sudden about-face in the so-called Flag Salute Cases. Within only three years, the Court went in 1940 from 8-1 approval of laws requiring public school students to salute the flag to a 6-3 decision in 1943 striking down such laws as free-speech violations. The shift came about partly because of two new justices, but primarily because of the adverse reaction to the earlier ruling among opinion leaders and the public at large.
The Flag Salute Cases, however, are the exception that proves the rule. None of the other reversals in the Court history — think: Brown v. Board of Education or Lawrence v. Texas — came about without a substantial passage of time or at least a critical change in personnel on a closely divided Court.
Even so, the 2012 presidential campaign gives pause. The outsized role being played by independent Super PACs, fortified by corporate spending made possible by Citizens United, is evoking the same kind of negative reaction that the first of the Flag Salute Cases engendered. The Roberts majority has the votes to summarily reverse the Montana court’s decision without full briefing and argument. But justices open to the views of their colleagues — as Roberts promised in his confirmation he would be — ought to welcome the opportunity for a full reconsideration of the issues raised.
The mailing offered the opportunity not only for unlimited contributions but also for unlimited privacy. “We’re not required to report the name or the amount of any contribution that we receive,” the mailer continued. “So, if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”
The justices of the Montana Supreme Court saw the incorporated Colorado-based group’s advertised availability as a conduit for anonymous political spending as a threat to the political marketplace not to mention the state’s campaign finance laws. So, in a 5-2 decision, the court ruled on Dec. 30 that Western Tradition Partnership, along with another corporate-organized group, the Montana Shooting Sports Association, and a small drywall company, Champion Painting, were subject to the state’s century-old ban on corporate spending in political campaigns.
The Montana justices were fully aware of the U.S. Supreme Court’s Citizens United decision in 2010, some months before Western Tradition Partnership’s mailing. In a bitterly divided 5-4 decision, the Roberts Court’s conservative majority established a First Amendment right to unlimited political spending by corporations (and labor unions) in federal elections. But Montana’s law survived, the state court’s majority ruled, because the state’s history with corrupt corporate spending — think: Anaconda Copper — gave Montana a “compelling interest” in keeping corporations out of state campaigns.
The case is now pending at the U.S. Supreme Court, which granted a stay on Feb. 17 as requested by the renamed American Tradition Partnership (ATP). Lawyers for ATP, led by the longtime foe of campaign finance regulation James Bopp, accused the Montana court of “a blatant disregard of its duty to follow” U.S. Supreme Court decisions.
The stay in American Tradition Partnership, Inc. v. Bullock, 11A762, was issued on Feb. 17 without recorded dissent. But in a one-paragraph statement, two of the dissenting justices in Citizens United envisioned using the case as a vehicle for re-examining the earlier ruling.
“Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n [citation omitted] make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” Justice Ruth Bader Ginsburg wrote, quoting from the majority opinion. “A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Even so, Ginsburg said she was voting to grant the stay “[b]ecause lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.” Justice Stephen G. Breyer joined the statement.
A waggish Court watcher might say that critics hoping for a reversal of Citizens United with the ink on the ruling barely dry have two chances: slim and none. The Court decided the case after extensive briefing and extended arguments with full awareness of the clashing values. The ruling represented the culmination of a series of steps carefully orchestrated by Chief Justice John G. Roberts Jr. to widen the scope for political speech at the expense of campaign finance laws. And it represented a vindication for Justice Anthony M. Kennedy, the author of the majority opinion, who had dissented two decades earlier when the Court upheld bans on corporate spending in political races.
Still, no less an observer than Linda Greenhouse, the now semi-retired New York Times Supreme Court watcher, acknowledged in the Times’s Opinionator blog that the Ginsburg-Breyer demarche gave her pause in her skepticism. Greenhouse credits Ginsburg and Breyer with inside-the-Court savvy and notes that their statement may at least “keep the public conversation going.”
Greenhouse notes as a possible historical precedent, the FDR-era Court’s sudden about-face in the so-called Flag Salute Cases. Within only three years, the Court went in 1940 from 8-1 approval of laws requiring public school students to salute the flag to a 6-3 decision in 1943 striking down such laws as free-speech violations. The shift came about partly because of two new justices, but primarily because of the adverse reaction to the earlier ruling among opinion leaders and the public at large.
The Flag Salute Cases, however, are the exception that proves the rule. None of the other reversals in the Court history — think: Brown v. Board of Education or Lawrence v. Texas — came about without a substantial passage of time or at least a critical change in personnel on a closely divided Court.
Even so, the 2012 presidential campaign gives pause. The outsized role being played by independent Super PACs, fortified by corporate spending made possible by Citizens United, is evoking the same kind of negative reaction that the first of the Flag Salute Cases engendered. The Roberts majority has the votes to summarily reverse the Montana court’s decision without full briefing and argument. But justices open to the views of their colleagues — as Roberts promised in his confirmation he would be — ought to welcome the opportunity for a full reconsideration of the issues raised.
Monday, February 13, 2012
In Prop 8 Case, Roberts Would Have Key Role
The effort to dismantle racial segregation in public schools did not begin with Linda Brown in Topeka, Kansas. It began in earnest two decades earlier with a litigation strategy crafted by the future Supreme Court justice, Thurgood Marshall, that first took on segregated state law schools and then mounted attacks on segregation in school districts in several southern and border states.
The battle to gain marriage rights for gay men and lesbians began in earnest two decades ago with litigation by three same-sex couples in Hawaii. They won an interim victory only to see it reversed by the state’s voters and then used to generate a backlash nationwide.
As with the campaign for racial justice, these first two decades have seen more setbacks than advances for marriage equality. But the federal appeals court’s decision last week [Feb. 7] striking down California’s anti-gay marriage initiative Proposition 8 marks a significant turning point. And the ruling could be decisive if its logic is accepted by the U.S. Supreme Court.
On the surface, the ruling by the Ninth U.S. Circuit Court of Appeals in Perry v. Brown is narrow and limited. At trial, U.S. District Court Judge Vaughn Walker ruled definitively that denying marriage rights to same-sex couples violates both the Due Process and Equal Protection Clauses of the U.S. Constitution. On appeal, the three-judge panel led by the indomitable liberal Stephen Reinhardt declined to reach that ultimate question.
Instead, Reinhardt wrote for a 2-1 majority in holding that the November 2008 ballot measure violated equal protection principles because it withdrew marriage rights recognized by the California Supreme Court only six months earlier for no reason other than “to lessen the status and human dignity of gays and lesbians in California.”
That holding applies only to California. No other state has first granted and then withdrawn marriage rights for same-sex couples. Beyond the narrow holding in the Prop 8 case, however, the decision explicitly adopts findings that undermine the logic of the laws and constitutional amendments on the books in a majority of states to deny marriage to same-sex couples.
As journalist Ari Ezra Waldeman wrote on the gay news site Towelroad, Reinhardt concluded that banning same-sex marriage does not help promote marriage by opposite-sex couples, as supporters of such bans contend. Nor does it promote “responsible procreation,” another of the goals claimed by anti-gay marriage advocates.
In addition, Reinhardt emphatically rejected the logic of giving same-sex couples legal recognition with some term other than marriage, such as civil union or domestic partnership, at least if it comes with all the rights that marriage would entail. “The name marriage signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships,” Reinhardt wrote. Giving same-sex couples all the rights but not the designation, Reinhardt reasoned, singles them out for unequal treatment for no legitimate reason.
In reaching that conclusion, the appeals court relied explicitly on the Supreme Court’s decision in Romer v. Evans (1996) striking down a Colorado ballot measure that barred the state or local governments from enacting laws to prohibit discrimination on the basis of sexual orientation. Justice Anthony M. Kennedy’s opinion for the majority found the law unconstitutional because it had no justification other than to treat gays and lesbians as second-class citizens.
Legal analysts have viewed Reinhardt’s citation of Kennedy’s opinion as a barefaced attempt to gain his vote for affirmance if the Prop 8 case reaches the Supreme Court. Less cynically, the citation represents the normal path of common-law adjudication, where a principle from one case is logically applied to an analogous case later on.
The Supreme Court followed that path in declaring racial segregation unconstitutional. In four successive cases, the court ruled that states could not segregate higher education by diverting African Americans to a law school in another state or a separate law school in the state itself or by admitting them to a graduate school but forcing them to use separate facilities. By the time of Brown v. Board of Education (1954), the logic was inexorable: legally enforced racial segregation in education could not stand.
Even so, the justices were divided when Brown and its four companion cases were first argued. As is well known, the new chief justice, Earl Warren, worked hard after a second round of arguments to persuade reluctant colleagues to make the eventual ruling unanimous.
The current justices are divided on gay rights. Conservatives Antonin Scalia and Clarence Thomas dissented in Romer and again in the 2003 ruling, Lawrence v. Texas, striking down laws banning gay sex. The newest conservatives, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet ruled in a case directly raising gay rights issues.
Roberts would seem unlikely to play Warren’s role in forging a united court on same-sex marriage, yet he appreciates his responsibility for protecting the court’s public reputation. Public opinion on gay marriage is shifting, inexorably. Some polls find majority support, and all polls find strong support among young people.
All eyes will be on Kennedy if the Prop 8 case reaches the Supreme Court. But they should also be focused on Roberts to see whether he tries to lead the court to adopt or resist the logic of the ruling and the growing acceptance of gay marriage in the public at large.
The battle to gain marriage rights for gay men and lesbians began in earnest two decades ago with litigation by three same-sex couples in Hawaii. They won an interim victory only to see it reversed by the state’s voters and then used to generate a backlash nationwide.
As with the campaign for racial justice, these first two decades have seen more setbacks than advances for marriage equality. But the federal appeals court’s decision last week [Feb. 7] striking down California’s anti-gay marriage initiative Proposition 8 marks a significant turning point. And the ruling could be decisive if its logic is accepted by the U.S. Supreme Court.
On the surface, the ruling by the Ninth U.S. Circuit Court of Appeals in Perry v. Brown is narrow and limited. At trial, U.S. District Court Judge Vaughn Walker ruled definitively that denying marriage rights to same-sex couples violates both the Due Process and Equal Protection Clauses of the U.S. Constitution. On appeal, the three-judge panel led by the indomitable liberal Stephen Reinhardt declined to reach that ultimate question.
Instead, Reinhardt wrote for a 2-1 majority in holding that the November 2008 ballot measure violated equal protection principles because it withdrew marriage rights recognized by the California Supreme Court only six months earlier for no reason other than “to lessen the status and human dignity of gays and lesbians in California.”
That holding applies only to California. No other state has first granted and then withdrawn marriage rights for same-sex couples. Beyond the narrow holding in the Prop 8 case, however, the decision explicitly adopts findings that undermine the logic of the laws and constitutional amendments on the books in a majority of states to deny marriage to same-sex couples.
As journalist Ari Ezra Waldeman wrote on the gay news site Towelroad, Reinhardt concluded that banning same-sex marriage does not help promote marriage by opposite-sex couples, as supporters of such bans contend. Nor does it promote “responsible procreation,” another of the goals claimed by anti-gay marriage advocates.
In addition, Reinhardt emphatically rejected the logic of giving same-sex couples legal recognition with some term other than marriage, such as civil union or domestic partnership, at least if it comes with all the rights that marriage would entail. “The name marriage signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships,” Reinhardt wrote. Giving same-sex couples all the rights but not the designation, Reinhardt reasoned, singles them out for unequal treatment for no legitimate reason.
In reaching that conclusion, the appeals court relied explicitly on the Supreme Court’s decision in Romer v. Evans (1996) striking down a Colorado ballot measure that barred the state or local governments from enacting laws to prohibit discrimination on the basis of sexual orientation. Justice Anthony M. Kennedy’s opinion for the majority found the law unconstitutional because it had no justification other than to treat gays and lesbians as second-class citizens.
Legal analysts have viewed Reinhardt’s citation of Kennedy’s opinion as a barefaced attempt to gain his vote for affirmance if the Prop 8 case reaches the Supreme Court. Less cynically, the citation represents the normal path of common-law adjudication, where a principle from one case is logically applied to an analogous case later on.
The Supreme Court followed that path in declaring racial segregation unconstitutional. In four successive cases, the court ruled that states could not segregate higher education by diverting African Americans to a law school in another state or a separate law school in the state itself or by admitting them to a graduate school but forcing them to use separate facilities. By the time of Brown v. Board of Education (1954), the logic was inexorable: legally enforced racial segregation in education could not stand.
Even so, the justices were divided when Brown and its four companion cases were first argued. As is well known, the new chief justice, Earl Warren, worked hard after a second round of arguments to persuade reluctant colleagues to make the eventual ruling unanimous.
The current justices are divided on gay rights. Conservatives Antonin Scalia and Clarence Thomas dissented in Romer and again in the 2003 ruling, Lawrence v. Texas, striking down laws banning gay sex. The newest conservatives, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet ruled in a case directly raising gay rights issues.
Roberts would seem unlikely to play Warren’s role in forging a united court on same-sex marriage, yet he appreciates his responsibility for protecting the court’s public reputation. Public opinion on gay marriage is shifting, inexorably. Some polls find majority support, and all polls find strong support among young people.
All eyes will be on Kennedy if the Prop 8 case reaches the Supreme Court. But they should also be focused on Roberts to see whether he tries to lead the court to adopt or resist the logic of the ruling and the growing acceptance of gay marriage in the public at large.
Sunday, February 5, 2012
Would Supreme Court OK Obama’s Recess Appointments?
Hard cases make bad law, it is said. And President Obama’s recess appointments to the National Labor Relations Board (NLRB) and the new Consumer Financial Protection Bureau (CFPB) while the Senate was purportedly not in recess indeed present a hard case that tests a major separation-of-powers provision in the U.S. Constitution. But it is a test that Obama is likely to win, even if — or perhaps especially if — it reaches the current Supreme Court.
On the surface, Obama appears to be circumventing the Constitution’s requirement that he appoint “Officers” of the United States only with “the Advice and Consent of the Senate” (Art. II, sec. 2, cl. 2). As a fail-safe to ensure the government’s ability to function when the Senate was not meeting, the Framers added in the next clause that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate.” The recess appointee can serve, however, only to the end of the Senate’s “next session.”
By its lights, the Senate was not in recess on Jan. 4 when Obama named Richard Cordray to head the new consumer agency and appointed Sharon Block, Terrence Flynn, and Richard Griffin to vacancies on the five-member NLRB. The Senate had been meeting in so-called pro forma sessions every two or three days during its winter vacation and was not scheduled to resume normal business sessions for nearly three weeks.
In announcing the appointments, however, Obama wrapped himself in the constitutional purpose of enabling two important government agencies to function in the face of obstructionism by the Senate’s Republican minority. “The American people deserve to have qualified public servants fighting for them every day,” Obama said. GOP senators had stalled action on Cordray’s nomination to try to force changes in the new agency’s structure and powers. Republicans had also reportedly signaled that they would prevent action on filling the NLRB vacancies, even at the cost of denying the board a sufficient quorum to take any legal actions.
Republicans and conservative legal experts denounced the action as an unconstitutional power-grab — and noted that the pro forma session tactic had been invented by then-Senate Minority Leader Harry Reid in 2007 to thwart President George W. Bush from making recess appointments. The Republicans were not mollified when, a week later, the Justice Department released the legal opinion embodying the advice given to Obama earlier that he could make the appointments.
The 23-page memorandum, signed by Virginia Seitz as head of the Office of Legal Counsel (OLC), begins by emphasizing that the Senate had adjourned on Dec. 17 with a unanimous consent agreement to meet only in pro forma sessions until Jan. 23 “with no business conducted.” Given the “practical construction” traditionally given to the Recess Appointments Clause, Seitz concluded that Congress can prevent the president from making recess appointments “by remaining continuously in session and available to receive and act on nominations,” but “cannot do so by conducting pro forma sessions during a recess.”
Seitz acknowledged that “substantial arguments on the opposite side” would create “some litigation risk for such appointments.” In fact, legal challenges came quickly. Business groups on Jan. 13 added a challenge to the appointments to an existing suit in federal court in Washington attacking a recent NLRB rule. Last week, owners of a New York housing complex attacked the validity of the appointments in seeking to undo an NLRB injunction to end a lockout in a pay dispute. Also last week, 40 Republican senators vowed to file a friend-of-the-court brief attacking the appointments. They did not specify which of the challenges they would join.
The challenges face significant jurisdictional questions; but if courts reach the merits, the appointments stand a very good chance of being upheld. As noted in Seitz’s memorandum, the most recent appellate ruling on the issue, in 2004, upheld Bush’s recess appointment of former Alabama attorney general William Pryor to the federal appeals court in Atlanta. The majority in the en banc decision took a broad view of the president’s power in the face of a narrowing, literalist interpretation of the constitutional language urged by the dissenting judge.
The Supreme Court declined to review the ruling in Pryor’s case, so there is no recent evidence of the high court’s view on the issue. On other questions of presidential power, however, the Roberts Court has definite hawkish tendencies.
Among conservatives, Justice Antonin Scalia has been an executive branch devotee since his attacks on the legislative veto in the 1980s. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. began their legal careers as lawyers in the presidential power-expanding Reagan administration. On the left, newly appointed Justice Elena Kagan also appears to be bullish on presidential power. And the court’s strongest defender of congressional prerogatives, Stephen G. Breyer, is nevertheless a confirmed pragmatist who is likely to see through the Senate’s subterfuge of using pro forma sessions to disguise an actual recess.
Despite its original, limited purpose, the Recess Appointments Clause has become over time a tool for the president to get around delays and obstructions in the Senate. Those who worry about abuses of presidential power may view this as bad practice — and bad law. But unless the Supreme Court sets itself against the weight of practice and judicial precedent, Obama seems likely to prevail if this hard case reaches the justices.
On the surface, Obama appears to be circumventing the Constitution’s requirement that he appoint “Officers” of the United States only with “the Advice and Consent of the Senate” (Art. II, sec. 2, cl. 2). As a fail-safe to ensure the government’s ability to function when the Senate was not meeting, the Framers added in the next clause that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate.” The recess appointee can serve, however, only to the end of the Senate’s “next session.”
By its lights, the Senate was not in recess on Jan. 4 when Obama named Richard Cordray to head the new consumer agency and appointed Sharon Block, Terrence Flynn, and Richard Griffin to vacancies on the five-member NLRB. The Senate had been meeting in so-called pro forma sessions every two or three days during its winter vacation and was not scheduled to resume normal business sessions for nearly three weeks.
In announcing the appointments, however, Obama wrapped himself in the constitutional purpose of enabling two important government agencies to function in the face of obstructionism by the Senate’s Republican minority. “The American people deserve to have qualified public servants fighting for them every day,” Obama said. GOP senators had stalled action on Cordray’s nomination to try to force changes in the new agency’s structure and powers. Republicans had also reportedly signaled that they would prevent action on filling the NLRB vacancies, even at the cost of denying the board a sufficient quorum to take any legal actions.
Republicans and conservative legal experts denounced the action as an unconstitutional power-grab — and noted that the pro forma session tactic had been invented by then-Senate Minority Leader Harry Reid in 2007 to thwart President George W. Bush from making recess appointments. The Republicans were not mollified when, a week later, the Justice Department released the legal opinion embodying the advice given to Obama earlier that he could make the appointments.
The 23-page memorandum, signed by Virginia Seitz as head of the Office of Legal Counsel (OLC), begins by emphasizing that the Senate had adjourned on Dec. 17 with a unanimous consent agreement to meet only in pro forma sessions until Jan. 23 “with no business conducted.” Given the “practical construction” traditionally given to the Recess Appointments Clause, Seitz concluded that Congress can prevent the president from making recess appointments “by remaining continuously in session and available to receive and act on nominations,” but “cannot do so by conducting pro forma sessions during a recess.”
Seitz acknowledged that “substantial arguments on the opposite side” would create “some litigation risk for such appointments.” In fact, legal challenges came quickly. Business groups on Jan. 13 added a challenge to the appointments to an existing suit in federal court in Washington attacking a recent NLRB rule. Last week, owners of a New York housing complex attacked the validity of the appointments in seeking to undo an NLRB injunction to end a lockout in a pay dispute. Also last week, 40 Republican senators vowed to file a friend-of-the-court brief attacking the appointments. They did not specify which of the challenges they would join.
The challenges face significant jurisdictional questions; but if courts reach the merits, the appointments stand a very good chance of being upheld. As noted in Seitz’s memorandum, the most recent appellate ruling on the issue, in 2004, upheld Bush’s recess appointment of former Alabama attorney general William Pryor to the federal appeals court in Atlanta. The majority in the en banc decision took a broad view of the president’s power in the face of a narrowing, literalist interpretation of the constitutional language urged by the dissenting judge.
The Supreme Court declined to review the ruling in Pryor’s case, so there is no recent evidence of the high court’s view on the issue. On other questions of presidential power, however, the Roberts Court has definite hawkish tendencies.
Among conservatives, Justice Antonin Scalia has been an executive branch devotee since his attacks on the legislative veto in the 1980s. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. began their legal careers as lawyers in the presidential power-expanding Reagan administration. On the left, newly appointed Justice Elena Kagan also appears to be bullish on presidential power. And the court’s strongest defender of congressional prerogatives, Stephen G. Breyer, is nevertheless a confirmed pragmatist who is likely to see through the Senate’s subterfuge of using pro forma sessions to disguise an actual recess.
Despite its original, limited purpose, the Recess Appointments Clause has become over time a tool for the president to get around delays and obstructions in the Senate. Those who worry about abuses of presidential power may view this as bad practice — and bad law. But unless the Supreme Court sets itself against the weight of practice and judicial precedent, Obama seems likely to prevail if this hard case reaches the justices.
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