Law

by publius

I’ve now had a chance to dig into last week’s Supreme Court opinions — CBOCs v. Humphries and Gomez-Perez v. Potter (pdfs). Both cases extended civil rights protections to claims of retaliation (I’ll explain below). What’s most interesting about the opinions is that they illustrate why Roberts and Alito are quite different from the more reactionary Scalia/Thomas wing. In fact, I think these opinions suggest that Roe v. Wade may (MAY) be safer than it appears, even under a McCain presidency.

First, some exceedingly brief background. The cases above involved two civil rights statutes — Section 1981 prohibits a certain type of racial discrimination, while the ADEA prohibits age discrimination. The precise question was whether these two statutes cover retaliation for complaining about these forms of discrimination.

For instance, if your boss says, “I’m firing you because you’re too old,” that’s clear discrimination. But let’s assume the boss had fired someone else for that same reason. And let’s say that, in response, you complained to other managers about it and they fired you for your efforts (i.e., they retaliated). In that scenario, have you been “discriminated” against “on the basis of age”?

That’s what the Court had to decide — How broadly should the statutes be construed? The upshot is that construing the text broadly would make it easier to bring discrimination claims. Construing it more narrowly, by contrast, would make it harder.

In both cases, the Court found that the statutes covered retaliation — so it was a win for the forces of good. But the alignment was interesting. The race case was 7-2, with Roberts and Alito joining the liberals. The age case was 6-3, because the majority lost Roberts (but Roberts’ dissent is still quite different from the Thomas/Scalia one).

To be grossly general for the sake of the non-lawyers, the two cases pitted textualism versus stare decisis (i.e., respect for precedent).* The textual basis for retaliation claims is fairly shaky. There are plausible readings that get you there, but it’s a very close call. There are, however, several prior cases that extend these protections to retaliation claims. The dilemma for Roberts and Alito is that they were being asked to uphold prior decisions they presumably disagreed with, ideologically speaking.

But they upheld them anyway — in doing so, they were “acting against interest.” It would have been very easy for Alito and Roberts to say “no text, no claim.” But instead, they endorsed these prior cases, warts and all (warts from a conservative perspective, that is).

Indeed, Alito endorsed this precedent in both cases. And while Roberts dissented in the age case, his dissent was rooted in the unique textual structure of that individual statute (frankly, I think he was probably right). Notably, he did not go along with Scalia and Thomas who claimed that “discrimination” never encompasses retaliation.

I think we can take a few tentative lessons from these opinions. To be sure, I don’t want to read too much into one day’s worth of decisions. These may well be outliers. But disclaimer aside, here goes:

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by hilzoy

The NYT has a story about a married couple who became New Jersey’s first same-sex marriage when, 25 years after their wedding, Donald, the husband, became Denise. They stayed together: ““We’re one of the few of our friends who are still in our original marriage,” Denise Brunner said.” But they face some legal problems, since no one seems to have a clue what to make of their marriage:

“The Brunners say they have no interest in obtaining a civil union — they consider it a downgrading of their relationship — but they do worry about their status.

What if the Internal Revenue Service questions their joint tax returns? What if they retire to North Carolina, a state that they say is less legally friendly to transsexuals and same-sex couples? What if they were taking their daughter Jessica to college in Pennsylvania, and were in a car wreck that left Denise unconscious — would the authorities accept Fran as her wife?

“Are they going to recognize that she can make the decision for me?” Denise asked. “We don’t know that, and that’s not the time I want to contest that in court.””

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by publius

The Ninth Circuit made a potentially big decision yesterday – Fair Housing Council v. Roommates.com — that could significantly increase website companies’ liability for content posted by their users (I’ve posted the decision below the fold as an iPaper). Eugene Volokh and Susan Crawford both have interesting things to say about the case. Volokh thinks it’s both correct and fairly inconsequential. I’m not sure I agree. To me, this case illustrates the stark divide between law-in-theory and law-in-practice. As a purely theoretical matter, I tend to agree with Volokh that the decision isn’t a big deal. But when you consider the practical implications, I think it becomes quite harmful.

First, some background. Let’s say that, in the comments section here, Gary Farber accuses “Cleek” of having poor indie-rock sensibilities. Outraged, Cleek sues Typepad (the host of our blog) for defamation. Typepad, however, didn’t actually say anything about Cleek’s music tastes, it just made blog space available for others to provide comments.

In this case, Cleek would be out of luck because of 47 U.S.C. § 230. Section 230 grants immunity to websites and service providers for content posted by other parties that use their sites. Thus, you can’t sue Yahoo for offensive statements made on chat boards, nor can you sue Google for content that its search engine pulls up. It’s a good law, and it’s been interpreted quite broadly over the years to avoid “chilling” Internet activity. For instance, Blogger wouldn’t exist if the company could have been sued for every random comment on blogspot sites.

With that in mind, the next relevant law is the Fair Housing Act. To be grossly general, it prevents housing brokers from discriminating on the basis of, among other things, sex and family status. Because brokers can’t refuse to sell to families, they generally can’t even ask whether you have children.

Enter Roommates.com. As the name suggests, this site allows people to find and provide housing. To get started, the site’s users must enter information about themselves in various prompts (they were drop-down windows as I understand). Some of these questions involved children and gender (e.g., “Children present” or “Children not present”) that would normally be illegal.

Long story short, Roommates got sued under the Fair Housing Act. Roommates responded that they are immune under Section 230 because its users were the ones who actually entered the information. The court disagreed, finding – and here’s the key – that the structure of the question prompts was itself illegal content creation. In other words, the question prompts themselves were illegal because they required people to answer illegal questions. Critically, the court went on to find that the site’s search engine also lacked immunity because its results were based on these illegally-structured question-and-answers. (This is a very brief description, so read the opinion below the fold if you want more detail).

As a purely theoretical matter, the decision seems harmless enough. As Volokh explains, Roommates was “channel[ing] the speech in likely illegal directions.” Also, as Crawford notes, the logic of the case could be limited to the more egregious facts of this case. If it is so limited, the decision won’t be that big a’deal.

The problem, though, is that the case will create big problems in the real world. Specifically, it will be impossible to cabin the case’s logic to these specific facts. Vague holdings, like children, tend to grow more expensive through time. If the Supreme Court lets the decision stand, I predict that it will significantly increase litigation and chill Internet activity (e.g., sites like Roommates will be much less efficient as prompts become bulletin boards).

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by publius

One of the themes of the John Adams mini-series is the tension between the passions of the mob and the rule of law. We tend to forget – spoiled by 150 years without domestic war – just how precarious the line between civilization and anarchy can be. As 1770s Boston illustrated, mobs can rise quickly and do terrible things. In watching this tension play out on HBO, it reminded me of my own evolution regarding the “rule of law” (the concept). Ironically enough, the George W. Bush era has made me far more conservative on legal matters than I once was. Specifically, Bush has made me more of an Adams man than a Jefferson one.

As a law student, legal realism made a deep impression on me. To be perfectly blunt, I thought law didn’t matter. Constitutional law in particular seemed like one giant fraud – it was nothing more than political preferences cloaked in an impenetrable linguistic façade of legalisms. It was no accident that conservative judges tended to line up on different sides than liberal judges. Nor was it an accident when sweeping constitutional changes occurred with new administrations. [What’s particularly annoying about conservative jurisprudence is not so much that it’s political, but the obnoxious self-righteous denials that it is even slightly political. Their positions (which practically all align with their political views) are not policy preferences but simply “interpretations” of a “static” constitution, or the will of the framers, or whatever.]

In short, law was politics – nothing more. The rule of law was a convenient fiction. And recent events seemed to support that skepticism. Bush v. Gore remains to this day a naked exercise of illegitimate judicial power-grabbing. The audacity of 5 individuals to stop the election for the President of the United States burns me to this day. They should have all, frankly, been impeached for that (if not tarred and feathered – though that apparently really burns). Bush v. Gore was the ultimate vindication of legal realism’s predictions. It happened in 2000. I entered law school in 2000. So it goes.

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by publius

If I were the plaintiffs in the Heller Second Amendment case, I would file an amicus brief with nothing but the HBO John Adams mini-series attached. Looking back to 18th century Boston, it’s much easier to see how guns and militias provided important checks on government overreach. The problem, though, is that the colonial era has passed. The expansive gun rights of that era would have far different effects in post-industrial urban society.

And that leads to one of my broader criticisms of American conservatism — from the Progressive era on through to today. Certain strands of American conservative thought have never quite come to terms with the realities of modern life — and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well. I’ll start with the law though.

To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.

The Heller gun case provides a perfect example. Personally, I think the Second Amendment is textually indeterminate – i.e., the text could plausibly support either a collective or individual-based right. For that reason, parsing commas in this context is rather pointless. If there are two equally plausible textual readings, then the question should shift to policy – what should we do? What are the consequences of selecting one reading over the other?

The answer, I think, turns on the type of place you live in. If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way. Given these variations, it seems like the obvious answer is to defer to legislatures (which requires a more collective view). The elected leaders of Montana can do what they want, while DC can do what it wants. And long as Congress doesn’t ban militias, we’re all good.

The broader point, though, is that the analysis should acknowledge changing conditions. Extreme gun rights advocates like to pretend we all live in John Adams’ world. In that world, millions of complete strangers don’t live right on top of each. There, militias actually do further liberty. In our world, however, things are different. Millions of strangers are in fact clustered together. In our world, nuclear-powered industrialized armies have far more formidable weapons than muskets and cannons.

To be clear, I’m not saying we should ban guns. I’m just saying the Second Amendment is an artifact from a different era, and that its artifact-ness should influence our reading of it. More specifically, the fact that it’s a relic of the musket era should, at the least, allow modern legislatures some leeway in interpreting it.

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by hilzoy

From the NYT:

“President Bush’s excesses in the name of fighting terrorism are legion. To avoid accountability, his administration has repeatedly sought early dismissal of lawsuits that might finally expose government misconduct, brandishing flimsy claims that going forward would put national security secrets at risk.

The courts have been far too willing to go along. In cases involving serious allegations of kidnapping, torture and unlawful domestic eavesdropping, judges have blocked plaintiffs from pursuing their claims without taking a hard look at the government’s basis for invoking the so-called state secrets privilege: its insistence that revealing certain documents or other evidence would endanger the nation’s security.

As a result, victims of serious abuse have been denied justice, fundamental rights have been violated and the constitutional system of checks and balances has been grievously undermined.

Congress — which has allowed itself to be bullied on national security issues for far too long — may now be ready to push back. The House and Senate are developing legislation that would give victims fair access to the courts and make it harder for the government to hide illegal or embarrassing conduct behind such unsupported claims.

Last week, Senator Edward Kennedy, the Massachusetts Democrat, and Arlen Specter, Republican of Pennsylvania, jointly introduced the State Secrets Protection Act. The measure would require judges to examine the actual documents or other evidence for which the state secrets privilege is invoked, rather than relying on government affidavits asserting that the evidence is too sensitive to be publicly disclosed. Senator Patrick Leahy, chairman of the Senate Judiciary Committee and an important supporter of the reform, has scheduled a hearing on the bill for Feb. 13. Representative Jerrold Nadler, Democrat of New York, expects to introduce a similar measure in the House.

Of course, legitimate secrets need to be protected, and the legislation contains safeguards to ensure that.”

The state secrets privilege was invented in 1953. As I understand it, it basically allows the government to argue that a case involves secrets that should not be revealed in a court proceeding, even if they are relevant to it, and even if the case cannot go forward without the secret information. If accepted, the evidence in question might be barred, or (if the case cannot go forward without it) the entire case might be dismissed. Henry Lanman in Slate:

“There is nothing inherently objectionable about the state secrets privilege. It recognizes the reasonable proposition that even simple lawsuits against the government—tort suits, breach of contract claims—can sometimes involve issues that would be genuinely harmful to national security if they saw the light of day. Say, for instance, that a janitor in Los Alamos, N.M., tripped over a box of uranium lying in the hallway in 1943. It would hardly do to have the evidence used in the subsequent slip-and-fall case scuttle the entire Manhattan Project. So, tough though it is on individual plaintiffs, the courts have historically deferred to government claims that some evidence in certain litigation must be shielded as “state secrets.””

What is objectionable about the privilege is that courts often accept the government’s claims that a case would jeopardize state secrets without investigating whether or not those claims are true. This would, of course, be fine if we could trust the government not to abuse this privilege to make cases it finds inconvenient disappear. Needless to say, we can’t. (Ironically enough, the very case in which the state secrets privilege was invented demonstrates this: once the documents involved were declassified, they turned out to to contain any state secrets at all; just evidence of government negligence.)

This administration has used the state secrets privilege much more broadly, and much more often, than its predecessors.

“Before Sept. 11, this obscure privilege was invoked only rarely. Since then, the administration has dramatically increased its use. According to the Washington Post, the Reporters’ Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it’s asserted it 23 times in the four years after Sept. 11. For an administration as obsessed with secrecy as this one is, the privilege is simply proving to be too powerful a tool to pass up.”

Recently, the privilege has been used to dismiss cases like that of Khalid el-Masri, whom we abducted and had tortured, and the government has invoked it to dismiss a lawsuit filed by Maher Arar (see also Katherine’s pieces on Arar on this site — click here and start from the bottom.) In both cases, and in others, many of the facts are in the public domain; in Arar’s case, Condoleeza Rice has even managed to sorta kinda admit that we screwed up, while Canada has had a whole formal inquiry. Both cases are, of course, enormously embarrassing to the government, but it’s not at all clear why they could not possibly go forward at all without jeopardizing state secrets, given how much information about them is already public.

This legislation (S. 2533; excerpts below the fold) basically says that if the government invokes the state secrets privilege, it has to provide an explanation of why it is doing so, and the information that it claims the privilege should protect. It then requires the courts to examine this evidence in order to determine whether or not it deserves protection, and allows them to exclude such evidence only if it decides that the government was right to invoke the state secrets privilege. If the government just refuses to turn the information over, then it automatically loses on the point at issue (not necessarily the whole case.) The bill also says that the procedures used to protect classified information in other cases also apply here, and that the courts can craft further rules to protect classified data, though Congress has the right to reject those rules.

In other words: this bill says that instead of just taking the government’s word that state secrets are involved, the courts have to examine the evidence and conclude that they are. It transforms the state secrets privilege from a Get Out Of Jail Free card that the government can use just by waving it around into a claim that the government has to actually justify. It would be one step towards restoring the rule of law, and limiting the power of the Executive to do whatever it wants without having to justify its actions to anyone. I think it’s a very good bill, and I hope that it passes.

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by G’Kar

Does the intent of those who create a law effect the constitutionality of that law? As always, below the fold to minimize the disruption of the front page.

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by publius

Via McCardle, I saw this uncharacteristically weak argument from Jonathan Turley:

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right.

To which McCardle responds:

I’ve always had a hard time believing that people who thought the right of “the people” was a collective right could be arguing in good faith–at least, not if they’d read the rest of the constitution. After all, no one would take seriously an argument that the right of “the people” in the fourth amendment “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” was a collective right that could only be enjoyed if you joined the National Guard.

These are tough questions. Lots of smart people argue different things. But the idea that arguing for a collective right is in bad faith is absurd. I happen to believe it’s the best argument — and I’ve even read the rest of the Constitution.

First, contrary to popular belief, the Bill of Rights weren’t necessarily libertarian protections for individuals and minorities. Akhil Amar, for instance, has argued that the Bill of Rights should be understood as structural, federalist (i.e., states-rights) protections for majorities. The animating fear was a distant, remote federal government that would tyrannize state governments (remember then-recent history). For instance, the establishment clause makes no sense as anything other than a protection of state-recognized churches (or against federally-established churches like the Church of England) — it is not a libertarian provision. Even the criminal protection provisions can arguably be seen — not merely as individual protections — but as structural protections against federal officials who impose arbitrary or tyrannical rule.

Of course, when you read over the Bill of Rights, it’s easy to read them as libertarian provisions. But Amar in particular has offered various textual and historical reasons why they shouldn’t be (or shouldn’t exclusively be) read that way. I’ll rattle those off below the fold.

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by publius

The Almighty Nine opened shop today, hearing arguments on whether Washington’s open primary violated the First Amendment. The more cynical framing of the question is whether the First Amendment provides cartel-like protections to the major political parties. That, in turn, leads to the broader question of whether our current two-party structure is a good thing. On that last question, my views have evolved considerably since I first started blogging, thanks in no small part to Bush. Strangely enough, the modern GOP has restored my faith in the two-party system . . . I think.

But first, the case. The backdrop here is a case called Jones from 2000 that struck down California’s “blanket” primary. It was an open primary — voters could vote for any candidate, and any candidate could align with any party. The catch though was that voters as a whole determined the party’s official nominee for the general election. For instance, the self-proclaimed Democrat with the most primary votes became the official Democratic candidate regardless of what the Party itself wanted. If Cocaine McPedophile declared himself a Democrat, then (in theory) Republicans could vote for him, placing him on the ballot for the fall. The Court found that this type of forced marriage violates political parties’ association rights. Fair enough.

Washington, however, had a different idea. It also proposed an open blanket primary, but allowed the “top two” candidates to move on (rather than the top vote-getter within each party). The catch here (again) was that any candidate could declare herself aligned with any party. The parties didn’t like that — in this sort of pre-runoff primary, they wanted only their own preferred candidate to have the “D” or “R.” [See Rick Hasen for more.]

I certainly sympathize with the parties — you don’t want loonies (or Mike Gravels as I call them) confusing voters. That said, I don’t see why the Constitution protects them here. It’s one thing to force a candidate on to the party like California did. It’s quite another thing to forbid candidates from declaring their own party preferences in a “top two wins” election.

The broader point is that this is simply one of the many structural legal protections that national parties currently enjoy. Whatever you think of Ralph Nader, he’s right that significant barriers to entry exist outside the two-party structure. In the Washington case, for instance, the First Amendment would protect the parties by allowing the institutional leadership to maintain more control of the nomination process. Without this protection, Lieberman and Schwarzenegger-type candidates (nominal Dems or Republicans with considerable cross-appeal) could win “the nomination” without institutional backing.

Whether that last scenario is good or bad is the million dollar question. In theory, open primaries create more “centrist” candidates. Rather than vying for the median party voter, candidates are vying for the median voter. Further, the less that “serious” candidates rely on the institutionalized party, the closer to the median they can be. The result would be people like the Governator and Lieberman.

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by hilzoy

OK, admittedly I’ve been busy for the last week or so, but how on earth did I not know that the habeas amendment was coming up for a vote today? According to comments at FDL, it has failed to gain the 60 votes it needed to pass. (56-43; FDL has the roll call.)

The Webb Amendment is up now. It would require that people who are deployed overseas be given as much time at home as they spent abroad. I’ve put a list of Senators to call below the fold (from Atrios.)

If you support this amendment, now’s the time to call. Thanks.

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by publius

Looking ahead to the next round of FISA debates, Democrats and civil liberties advocates need to rethink their public relations strategy. In fact, this recommendation applies beyond FISA to the larger civil liberties debate. It’s not enough to say that “Administration Policy X” threatens civil rights, the public needs to understand in a very concrete way why those rights matter. My non-empirically informed sense is that much of the public just doesn’t feel in their gut that these protections benefit them.

The reason, though, that these rights do matter — the reason we care about them — is quite simple. The rights protect people from abuse of power. Accordingly, the FISA amendment is a bad idea because the executive branch will inevitably abuse these new sweepingly-broad surveillance powers. It’s a lesson as old as written history — unchecked authority is eventually used for improper reasons. Indeed, it’s the theoretical rationale of our entire constitutional structure.

To be sure, not every abuse of authority is as extreme as, say, actions in Nazi Germany. And people throw around unhelpful terms sometimes. But the unlikely probability of the most extreme abuses shouldn’t distract from the very real — and inevitable — abuse that will come if this law stays on the books. To understand what I mean, just look at the origins of FISA.

People should understand that FISA didn’t arise out of abstract policy debates. Congress enacted FISA in response to decades of well-documented, egregious abuses of secret, unchecked surveillance authority (generally in the name of fighting the enemy, who was then Communism). This long sordid historical record can and should inform the modern debate. We don’t have to rely solely on predictions or abstract balancing tests. We’ve already seen what happens when secret executive agencies exercise unchecked surveillance powers. More to the point, unless someone knows how to change the nature of man, we can’t (and shouldn’t) rely on an administration’s goodness or trustworthiness to exercise broad power properly. (On that note, few presidents have made Edmund Burke look better than George W. Bush).

In that spirit of illustrating “why it matters,” below is a list of some of the abuses that Congress documented in the mid-1970s — the same abuses that led to FISA. These abuses came to light during a Watergate-era Senate committee investigation regarding intelligence operations. Named after its Chairman, the “Church Committee” brought these abuses of power to light.

I’m getting this information from Peter Swire’s 2004 George Washington Law Review article (pdf), “The System of Foreign Intelligence Surveillance Law.” (I learned about it via Orin Kerr’s Computer Crime casebook). For the most part, I cut and paste large pieces of Swire’s article. (These quotes may differ slightly from the SSRN pdf above because I’m quoting from Lexis, which has the final edited version). On to the article.

To begin with the big picture, the Church Committee reached the following conclusion after reviewing this sorry history (and this is a quote from the Committee Report):

The tendency of intelligence activities to expand beyond their initial scope is a theme which runs through every aspect of our investigative findings. Intelligence collection programs naturally generate ever-increasing demands for new data. And once intelligence has been collected, there are strong pressures to use it against the target.

Swire goes on to explain that surveillance information was used as a weapon against political opponents:

The Church Committee documented that: “Each administration from Franklin D. Roosevelt’s to Richard Nixon’s permitted, and sometimes encouraged, government agencies to handle essentially political intelligence.” Wiretaps and other surveillance methods were used on members of Congress, Supreme Court Justices, and numerous mainstream and nonmainstream political figures. The level of political surveillance and intervention grew over time. By 1972, tax investigations at the IRS were targeted at protesters against the Vietnam War, and “the political left and a large part of the Democratic party [were] under surveillance.”

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by hilzoy

I couldn’t think of anything more appropriate than Lincoln’s Address to the Young Men’s Lyceum of Springfield, Illinois. He was 28 when he gave it, and had scarcely any formal education, which makes it all the more astonishing. Since it’s long, I’ll put excerpts below the fold (though of course reading the whole thing is best), and I will not use blockquotes, which would only make it seem even longer.

Happy Fourth of July!

***

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by hilzoy

From the Washington Post:

“A federal appeals court today ruled that the U.S. government cannot indefinitely imprison a U.S. resident on suspicion alone, and ordered the military to either charge Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

The opinion is a major blow to the Bush administration’s assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States. The government is expected to appeal the 2-1 decision handed down by a three-judge panel of the conservative U.S. Court of Appeals for the Fourth Circuit, which is in Richmond, Va.

The decision is a victory for civil libertarians and Marri, a citizen of Qatar who was a legal resident of the United States and studying in Peoria, Ill., when he was arrested in December 2001 as a “material witness.” He was detained initially in civil prisons, then transferred to a naval brig in Charleston, S.C. , where he has been confined for the past five years.

The government argued that Marri, who had met with al-Qaeda leader Osama bin Laden, was sent to the United States for a second wave of terrorist attacks.

The appeals panel said President Bush overstretched his authority by declaring Marri an “enemy combatant,” because the Constitution protects both U.S. citizens and legal residents such as Marri from an unchecked military and from being detained without charges and a fair trial.”

Marty Lederman has posted the decision here (pdf). It’s quite interesting. It rejects a whole slew of the government’s claims: that the Military Commissions Act strips al-Marri of habeas rights, that the Authorization for the Use of Military Force empowers the President to detain people in this country and designate them ‘enemy combatants’ at will, and that the President has the inherent power to do this under Article II. Excerpts and further discussion below the fold.

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