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Chemerinsky and the Supreme Court

UC Irvine Law Dean Erwin Chemerinsky's new book attacking the Supreme Court has caused Volokh Conspirator Orin Kerr to "wonder[] if he was just criticizing the Supreme Court for not agreeing with his policy preferences."

Orin has this Q-and-A with Dean Chemerinsky in which Chemerinsky attempts to answer that question "no," but even the left-leaning commenters on the post mostly agree that he ends up demonstrating that the answer is "yes."

The Mythical Right to Remain Silent

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The Constitution of the United States guarantees a right to remain silent, right?  Guess again.  What the Fifth Amendment actually says is, "No person ... shall be compelled in any criminal case to be a witness against himself ...."  That is not exactly the same thing.

Emily Green has this story at NPR on a recent decision by the California Supreme Court on the use of silence as evidence of guilt, People v. Tom, and its predecessor case in the U.S. Supreme Court, Salinas v. Texas (2013).  The story has sound bites from several people, including yours truly, but the issue is more complex than can be covered in a brief story.

Timing Holder's Replacement

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"President Obama has yet to reveal his choice to succeed Attorney General Eric H. Holder Jr., but already the Senate confirmation process has begun its march toward contentiousness," Paul Kane and Juliet Eilperin report in the WaPo.  Kristina Peterson reports at the WSJ:

Some Republicans quickly condemned the idea of the Senate considering Mr. Holder's replacement when outgoing lawmakers would still be able to vote on the next attorney general. "Allowing Democratic senators, many of whom will likely have just been defeated at the polls, to confirm Holder's successor would be an abuse of power that should not be countenanced," Sen. Ted Cruz (R., Texas) said
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Some Democrats said it would be a mistake to purposefully delay the process. "It would be irresponsible for anyone to try to delay confirmation of the country's chief law-enforcement officer for political purposes and I would hope responsible members of both parties would cooperate in a thorough hearing and a confirmation vote," said Judiciary Chairman Patrick Leahy (D., Vt.)
Here in the United States, we get to vote separately for a national legislature, which deals with foreign and military affairs, interstate commerce and other matters which need to be decided on a national level, and for a state legislature which is supposed to have control over those matters that can be handled more locally.  The line isn't as crisp as it used to be, or, in my opinion, as it should be, but it's there, and those separate elections serve to keep government more responsive to the will of the people.  Canada and Australia also have federated governments.

Englishmen, though, only get one legislative vote -- for their representative in the Parliament of the United Kingdom.  That may be about to change, Nicholas Winning and Jenny Gross report in the WSJ.

Constitution Day

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Yesterday was Constitution Day, the 227th anniversary of the Federal Convention's formal proposal of a new Constitution to replace the Articles of Confederation.

I like to stress that the document was only a proposal on that day, not the supreme law of the land.  It only became a contract between the people and their government, and hence the supreme law, when ratified by the people.

Personally, I would prefer that Constitution Day be the date of ratification, but that's a bit hard to pin down.  By its terms, the Constitution formed a union of nine states and was the supreme law of that union on the day the ninth state ratified. That would be New Hampshire on June 21, 1788.  Everyone knew, though, that the new union had no chance without the big dogs, Virginia on June 25 and New York on July 26.  It's a bit spooky how close those votes were.
The question whether the President could lawfully release five Taliban commanders without notifying Congress continues to roil legal academia.  In previous posts, here and here, I have chimed in, and have noted the views of others, including Prof. John Yoo of Berkeley and Prof. David Pozen of Columbia, who support my view that the President acted unlawfully.  Taking the other side in two compelling notes in the comments section to the former post, is my wife, former Scalia clerk and Associate White House Counsel, now Adjunct Professor of Law at Georgetown, Lee Liberman Otis.  Lee notes in particular the very broad Constitutional powers the President is given as commander-in-chief.

Today, another quite apt attorney, Visiting Professor Louis Fisher of the College of William and Mary Marshall-Wythe Law School, also argues that the President acted unlawfully (and hypocritically).  As he notes in his National Law Journal article:

In 2009, the Office of Legal Counsel found [Bush White House claims about the President's commander-in-chief powers] inconsistent with constitutional text. Because Article 1 grants significant war powers to Congress, legal opinions that categorically preclude Congress from enacting legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants "are not sustainable," the office found. The office shared its analysis with the U.S. attorney general, the White House counsel, the legal adviser to the National Security Council, the principal deputy general counsel of the Department of Defense and several offices within the Justice Department.

Five years later, the Obama administration decided it could send five senior members of the Afghan Taliban from Guantánamo to Qatar in exchange for Sgt. Bowe Bergdahl, held by the Taliban. The administration said it did not have to comply with a statute requiring the administration to give Congress 30 days notice before transferring detainees. Before making the transfer, the Defense Department sought guidance from the Justice Department, but no one in the DOJ, including the Office of Legal Counsel, has issued a legal memo to justify these transfers.

Today's opinion in Bond v. United States quotes Justice Felix Frankfurter's classic article, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947).  I have modified that title a bit for this post.

In Bond, the Court "ducked" the constitutional question of whether Congress had the authority to make a federal case out of an ordinary assault perpetrated by chemical means, which would normally be a purely state case, in order to implement the international Convention on Chemical Weapons.  The Court did so by finding that the statute doesn't actually reach Ms. Bond's conduct at all, in the process plowing some difficult ground in the field of statutory interpretation.

I had previously posted on this case in January 2013, when the Court took the case up, and last October, when the Court heard oral argument.  As previously noted, Carol Bond's "husband and best friend had an affair, resulting in the friend's pregnancy.  Bond was certainly justified in being angry and taking action, but poison was over the top.  That is a crime for which she should have been prosecuted and punished -- by the Commonwealth of Pennsylvania" not the federal government.  Today the Supreme Court agreed unanimously, but disagreements as to why explain why this case took so long.

"Hard cases make bad law," it is often said.  This case exemplifies how bad laws make hard cases.  We begin with treaty negotiators botching the drafting process, with Congress meekly following suit.  The result is a mess. 

Executive Branch Overreach

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The Federalist Society's Executive Branch Review Conference lived up to its billing with several terrific panels and a keynote address by Sen.Ted Cruz (all available here).

Sen. Cruz discussed a number of episodes of executive overreach, including, as is relevant for this blog, Eric Holder's unilateral decision to do by fiat what he's impatient with Congress for not doing on his schedule.  That would be to water down mandatory minimum sentencing so heroin and meth dealers, among others, won't have it so rough.  I have previously taken note of Mr. Holder's self-help approach to sentencing rules enacted by Congress which do not win his approval, e.g., here.

Sen. Cruz, whom I've known since we were in the Reagan Justice Department, was critical of DOJ's high-handed approach, even while noting that reasonable minds within the conservative movement can disagree on the question whether current mandatory minimums are harsher than they should be.  (He voted in favor of moving the Smarter Sentencing Act out of the Judiciary Committee).

He then, from the podium, gave me the razzball. From Ted, I'm delighted to get it.

His talk is here.  He starts discussing the mandatory minimum issue at 11:48 of the tape and finishes at 14:12, although readers interested in the startling breadth of this Administration's overreach would do well to listen to the entire address. The razzball moment is at about 12:25.

Defending Statutes

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HolderDaisy.jpgTwo weeks ago, a divided panel of the Ninth Circuit declared California's law on carrying guns in public to be unconstitutional in Peruta v. San Diego, No. 10-56971.  Judge O'Scannlain's opinion begins, "We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense."  He and Judge Callahan answer yes.  Judge Thomas dissents.

The San Diego Sheriff announced he would not seek rehearing en banc.  The California Attorney General has now moved to intervene and petitioned for rehearing en banc.

In my view, the AG is entirely correct to do this regardless of where one stands on the underlying question.  The proper operation of our system of separation of powers requires a defense of statutes when they are challenged judicially, and it is the Attorney General's duty to make that defense as long as one can reasonably be made.  It is dereliction of duty for AGs to refuse to defend statutes merely because they agree with the plaintiffs on close questions of constitutional law or, even worse, merely because they oppose the policy behind the statute.  The United States Attorney General notoriously failed to defend the anti-Miranda statute in the Dickerson case back in 1999.  That was very wrong, even though the case ultimately ended with the statute being struck down.

In this case, I have no doubt that Ms. Harris supports the policy behind the statute, so the disagreement issue is not presented.  However, I expect she will be criticized for defending it, so I wanted to state up front that her decision to make the case for the statute's constitutionality is correct, in my view.

Oh, BTW, the case is a slam dunk for rehearing en banc.

Defining Crimes By Regulation

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Eugene Volokh at VC has a post titled "May Congress delegate to the Executive the power to define minor crimes by regulation?"  He points to a Tenth Circuit decision Tuesday in United States v. Baldwin, No. 13-1198, in which Judge Gorsuch muses on that question.

Faithful Execution

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Article II, section 3, of the Constitution says that the President "shall take care that the laws be faithfully executed."  What exactly does that mean?  The House Judiciary Committee held a hearing on that subject today.  Video and written testimony are available here.

More on the FedSoc Convention

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As Bill notes, the Federalist Society is posting video of its annual convention.  The full list is here.

Along with the two events Bill mentioned, the annual Rosenkranz Debate was between Randy Barnett and Judge Harvie Wilkinson on judicial deference to the legislature.  Having heard both of them speak on this subject, I expect I will agree much more with Judge Wilkinson.

Judicial activism -- giving the Constitution an interpretation different from its original understanding in order to advance the judge's political, ideological, or policy preferences -- remains a far greater danger than its opposite.  For want of a better term, I call the opposite "judicial refractivism."  That is when a statute really does violate the Constitution as originally understood but the judge declines to so hold, either because he agrees with the statute and disagrees with the Constitution, or because he is excessively deferential to the legislature.

Judicial refractivism is a problem when it occurs, but it is both less common and less serious than judicial activism.  It is less common because of the natural human tendency to lean in the direction of enhancing one's own power.  It is less dangerous because genuinely unconstitutional statutes can be repealed through political action far more easily than wrongly stricken statutes can be resurrected through constitutional amendment.

I look forward to viewing this debate when the video is posted.

Barring Out-of-State Prisoner Placements

When the lawyers for the California prisoners in the Plata case were arguing against a stay of the three-judge court's order in the U.S. Supreme Court, they said, "More fundamentally, Appellants do not have to release any prisoners; they have wide latitude to substitute other methods for reducing overcrowding....  For example, Appellants could 'reassign prisoners to leased jail space,' without any impact on public safety whatsoever."

With the stay denied, Gov. Brown proposed to do exactly that, which necessarily includes out-of-state facilities, as there is only so much capacity within the state.

Today, as noted in the News Scan, the three-judge court extended the deadline by a measly four weeks and ordered the parties to "meet and confer."  Okay, but then there is this provision in the order:  "During the meet-and-confer process and until further order of the Court, defendants shall not enter into any contracts or other arrangements to lease additional capacity in out-of-state facilities or otherwise increase the number of inmates who are housed in out-of-state facilities."

Excuse me, your honors, but exactly by what authority do you order California's executive officials, and thereby effectively order the State of California, not to employ additional out-of-state capacity to house its prisoners?
Justice Scalia gave a talk at George Washington University yesterday.  He emphasized the structural aspects of the Constitution, including federalism and the bicameral legislature, as underappreciated factors in the preservation of freedom.  Alex Hopkins has this story at the Washington Times.  Tony Mauro has this post at BLT.

Elizabeth Wydra of the Constitutional Accountability Center has this post on the speech, giving us a fine example of the straw man fallacy.  She discusses the fact that the Constitution was drafted to make a federal government more robust than the anemic Articles of Confederation government.

Of course, conservatives like Justice Scalia might not like this part of our constitutional story so much, because it helps to refute the claim that the Constitution is a document that is primarily about limiting government.
Huh?  What "conservatives like Justice Scalia" make such a claim?

A More Perfect Union

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We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

On this date 226 years ago, George Washington et al. signed the proposed Constitution and sent it to Congress with a recommendation to submit it to the States for ratification.

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