More Hamdan
There’s lots of great blogging about Hamdan around the blogosphere. I was particularly impressed by the interesting thoughts at Opinio Juris and Balkinization.
Is the Hamdan Opinion Persuasive?
My prior posts on Hamdan have taken a political science perspective on the case. But what about Hamdan from a legal perspective? Which side had the more persuasive legal arguments?
Here is the super-simplified version of the two key arguments.
The first issue is whether the commissions complied with the Uniform Code of Military Justice. The UCMJ has provisions on the procedural uniformity required for military trials. It states, in Article 36:
(a) The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.
(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.
The majority opinion by Justice Stevens says that the military commissions are illegal under this law because it imposes non-uniform requirements without a sufficient showing that it would be impractical to depart from the usual standard under 26(b). In other words, the Court interprets the requirement that the rules “shall be uniform insofar as practicable” as rule that departures from usual trial procedures are prohibited by statute unless there is a very good reason to depart. The Court then finds that in its view there is no good reason to depart.
Here’s the key language:
Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.
Justice Thomas responds in his dissent with the following:
Nothing in the text of Article 36(b) supports the Court’s sweeping conclusion that it represents an unprecedented congressional effort to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial. And such an interpretation would be strange indeed. The vision of uniformity that motivated the adoption of the UCMJ, embodied specifically in Article 36(b), is nothing more than uniformity across the separate branches of the armed services. See ch. 169, 64 Stat. 107 (preamble to the UCMJ explaining that the UCMJ is an act “[t]o unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard”). There is no indication that the UCMJ was intended to require uniformity in procedure between courts-martial and military commissions, tribunals that the UCMJ itself recognizes are different. To the contrary, the UCMJ expressly recognizes that different tribunals will be constituted in different manners and employ different procedures. See 10 U. S. C. §866 (providing for three different types of courts-martial— general, special, and summary—constituted in different manners and employing different procedures). Thus, Article 36(b) is best understood as establishing that, so far as practicable, the rules and regulations governing tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army. But, consistent with this Court’s prior interpretations of Article 21 and over a century of historical practice, it cannot be understood to require the President to conform the procedures employed by military commissions to those employed by courts-martial.
Even if Article 36(b) could be construed to require procedural uniformity among the various tribunals contemplated by the UCMJ, Hamdan would not be entitled to relief. Under the Court’s reading, the President is entitled to prescribe different rules for military commissions than for courts-martial when he determines that it is not “practicable” to prescribe uniform rules. The Court does not resolve the level of deference such determinations would be owed, however, because, in its view, “[t]he President has not . . . [determined] that it is impracticable to apply the rules for courts-martial.” Ante, at 60. This is simply not the case. On the same day that the President issued Military Commission Order No. 1, the Secretary of Defense explained that “the president decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely the federal court system . . . and the military court system,” Dept. of Defense News Briefing on Military Commissions (Mar. 21, 2002) (remarks of Donald Rumsfeld), . . . and that “[t]he commissions are intended to be different . . . because the [P]resident recognized that there had to be differences to deal with the unusual situation we face and that a different approach was needed.” Ibid. The President reached this conclusion because “we’re in the middle of a war, and . . . had to design a procedure that would allow us to pursue justice for these individuals while at the same time prosecuting the war most effectively. And that means setting rules that would allow us to preserve our intelligence secrets, develop more information about terrorist activities that might be planned for the future so that we can take action to prevent terrorist attacks against the United States. . . . * * * ” Ibid. (remarks of Douglas J. Feith, Under Secretary of Defense for Policy (emphasis added)).
The Court provides no explanation why the President’s determination that employing court-martial procedures in the military commissions established pursuant to Military Commission Order No. 1 would hamper our war effort is in any way inadequate to satisfy its newly minted “practicability” requirement.
The second issue is the application of common article 3 of the Geneva Convention, which requires that judgments be “pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The majority reasons that the military commissions are not “a regularly constituted court,” and there for that it cannot render judgments. Here’s the argument:
While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”);64 see also Yamashita, 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”).
The Government offers only a cursory defense of Hamdan’s military commission in light of Common Article 3. See Brief for Respondents 49–50. As Justice Kennedy explains, that defense fails because “[t]he regular military courts in our system are the courts-martial established by congressional statutes.” Post, at 8 (opinion concurring in part). At a minimum, a military commission “can be ‘regularly constituted’ by the standards of our military justice system only if some practical need explains deviations from court-martial practice.” Post, at 10. As we have explained, . .. . no such need has been demonstrated here.
Justice Alito responds in his dissent:
I see no basis for the Court’s holding that a military commission cannot be regarded as “a regularly constituted court” unless it is similar in structure and composition to a regular military court or unless there is an “evident practical need” for the divergence. There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted. Tribunals that vary significantly in structure, composition, and procedures may all be “regularly” or “properly” constituted. Consider, for example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International Criminal Tribunal for the Former Yugoslavia. Although these courts are “differently constituted” and differ substantially in many other respects, they are all “regularly constituted.”
If Common Article 3 had been meant to require trial before a country’s military courts or courts that are similar in structure and composition, the drafters almost certainly would have used language that expresses that thought more directly.
So, what do you think? Which side has the more persuasive legal argument?
GULC Faculty Blog
Georgetown Law has started a faculty blog. Here is the initial list of contributors:
* Neal Katyal
* Richard Lazarus
* Mike Seidman
* Emma Coleman Jordan
* Rebecca Tushnet
* Mark Tushnet
Definitely worth checking out.
Hamdan, the AUMF, and the NSA Domestic Surveillance Program
This spring, a big question in the blogosphere was the legality of the NSA domestic surveillance program, which ended up turning in large part on whether the post-9/11 Authorization to Use Military Force implicitly overrode the prohibition on warrantless monitoring contained in the Foreign Intelligence Surveillance Act.
In light of that debate, one of the more important sections of the Hamdan opinion may be at page 29-30 of the slip opinion, in which the Court considers the argument that the Authorization to Use Mililtary Force implicitly authorized the President to establish military commissions. The Court easily rejected that argument:
The Government would have us . . . find in . . .the AUMF . . . specific, overriding authorization for the very commission that has been convened to try Hamdan. Neither of these congressional Acts, however, expands the President’s authority to convene military commissions. First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507 (2004) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 28–29; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (”Repeals by implication are not favored”).
. . . [C]ongressional authorization for military commissions pertaining to the instant conflict derives not only from Article 21 of the UCMJ, but also from the more recent, and broader, authorization contained in the AUMF.FN2
FN2: Although the President very well may have inherent authority to try unlawful combatants for violations of the law of war before military commissions, we need not decide that question because Congress has authorized the President to do so. Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 587 (2004) (Thomas, J., dissenting) (same conclusion respecting detention of unlawful combatants).
I note the Court’s error respecting the AUMF not because it is necessary to my resolution of this case—Hamdan’s military commission can plainly be sustained solely under Article 21—but to emphasize the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war. In such circumstances, as previously noted, our duty to defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today. Military and foreign policy judgments “‘are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’” Hamdi, supra, at 582–583 (Thomas, J., dissenting) (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948) ).
The End of the October 2005 Term
Following the Supreme Court is a lot like following professional sports. Summer is the off-season, the season kicks off on the first Monday in October, and the World Series is the string of cases handed down in the last week of the Term. When the season ends, you either celebrate the victories of your team or shrug and say, “well, there’s always next year.” You can’t buy hot dogs and beer during oral argument, but that’s just a quirky tradition and may change under the new Chief Justice.
Given the similarities, it’s only appropriate to note that Akin Gump summer associates have been busy assembling end-of-the-Term stats, posted over at the invaluable SCOTUSblog. No batting averages, home runs, or RBIs, but here is a memo on the basic stats, here is a chart of voting relationships and a chart of the cases by circuit, and here is another with basic stats in chart form. Very helpful, and very cool to have it so soon. Thanks to Jordan Hollender, Adam Tope, Jason Harrow, Cody Harris, and Rob Yablon for compiling these stats for the measly salary of $2,600 a week.
Continuing the baseball theme, let’s finish up the functional end of the Term with a song, to the tune of “Take Me Out to The Ball Game.”
Take me out to the Court,
Grant some petitions for certiorari
I don’t care if the opinions are scary!
Let me root, root, root for respondent,
If he doesn’t win activism’s to blame,
For it’s 3, 4, 5 votes to win at the Supreme Court game.
Of course, the commentary continues unabated during the off-season, and there are other sports like “Congress” and “Circuit Courts” to watch if you get really bored.
David Addington, the New Paradigm, and the Hamdan Case
Just in time for today’s Hamdan decision, the New Yorker has put Jane Mayer’s article on David Addington online. Addington is the chief architect of the Administration’s legal strategy in the GWOT, and the piece talks about Addington and how he came to dominate the Administration’s legal response to the 9/11 attacks. The article is not without its perspective — we’re talking the New Yorker here — but it has some interesting tidbits from folks who worked with Addington in the Administration. For example:
[A] former high-ranking lawyer for the Administration, who worked closely with Addington, and who shares his political conservatism, said that, in the aftermath of September 11th, “Addington was more like Cheney’s agent than like a lawyer. A lawyer sometimes says no.” He noted, “Addington never said, ‘There is a line you can’t cross.’” Although the lawyer supported the President, he felt that his Administration had been led astray. “George W. Bush has been damaged by incredibly bad legal advice,” he said.
Hat tip: Anderson.
The combination of the Mayer article and the Hamdan case today brings up an interesting question: To what extent did lawyers in the Administration expect the courts — and in particular, the Supreme Court — to agree with the Addington view of the law? Did they think there were five votes in support of the Addington approach, or that the Court would stay away from the issues? Alternatively, did they figure that the first priority was to do what was needed to protect the country in the short term, and that it was better to push the envelope and have the Courts strike down their efforts than not to push at all?
I imagine there isn’t one answer to this; “the Administration” is a “they,” not an “it.” Still, it’s an interesting question that the Mayer article touches on but I don’t think entirely answers.
What Difference Will Hamdan Make?
Everyone wants to know what difference Hamdan will make, so I wanted to offer some very preliminary thoughts on this very complex question. My general take, at least based on a preliminary read of the opinions and some insta-reaction in the press and on blogs: the impact of Hamdan probably will depend on where you look.
If you care most about doctrine and the impact of compliance with the Court’s decision, the decision is pretty narrow. As Jack Balkin notes, the opinion just says that Congress needs to be on board if the President wants to deviate from a court-martial-like trial for the Gitmo detainees. Given that there have been no complete trials so far, and Gitmo is widely expected to shut down soon, the practical impact of this decision at least in the short term is probably pretty modest.
If you care about the short-term impact of the case on the public debate about the GWOT, I think the case is quite important. It’s a clear loss for the President, and there’s some rhetoric in the opinions that are a pretty clear rebuke to the Administration’s approach. The Court spoke with sufficient clarity that it’s going to be harder for the Bush Administration to make strong Commander-in-Chief-power claims in the public arena.
Finally, from the standpoint of the grand separation-of-powers debate triggered by the 9/11 attacks and the Administration’s response, I think Hamdan is important but not earth-shattering. On one hand, the Supreme Court made clear that it is very much a player, and it upped the ante from its 2004 decisions. If the 2004 decisions rejected the concept of a law-free zone, Hamdan rejects the concept of a Congress-free zone. On the other hand, the Court has upped the ante only a notch. It has avoided a grand confrontation between the Executive and the Judiciary, at least for now.
That’s my initial sense, at least. I hope to post some more thoughts tonight.
Does the Constitution Require an Insanity Defense?
Amidst all the interest in Hamdan, criminal law types out there won’t want to miss today’s opinions in Clark v. Arizona, on the constitutional requirements of the insanity defense. The vote was 6-3, with Justice Souter writing the majority opinion joined by Breyer, Thomas, Scalia, Roberts and Alito. From the majority opinion:
[I]t is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice. Indeed, the legitimacy of such choice is the more obvious when one considers the interplay of legal concepts of mental illness or deficiency required for an insanity defense, with the medical concepts of mental abnormality that influence the expert opinion testimony by psychologists and psychiatrists commonly introduced to support or contest insanity claims. For medical definitions devised to justify treatment, like legal ones devised to excuse from conventional criminal responsibility, are subject to flux and disagreement. There being such fodder for reasonable debate about what the cognate legal and medical tests should be, due process imposes no single canonical formulation of legal insanity.
Justice Kennedy dissented, joined by Stevens and Ginsburg.
Working Your Way Through the Hamdan Opinions
If you plan on working your way through the 177 pages of Hamdan opinions today, here’s what you have in front of you:
Justice Stevens wrote the main opinion — 73 pages long — which is a 5-Justice majority opinion in part and a 4-Justice judgement of the Court in part.
Justice Breyer wrote a 1-page concurrence joined by Souter, Kennedy, and Ginsburg.
Justice Kennedy wrote a 20-page concurrence, parts of which were joined by Souter, Ginburg, and Breyer.
Justice Scalia wrote a 24-page dissent on the jurisdictional and abstention issues that was joined by Thomas and Alito.
Justice Thomas wrote a 49-page dissent on the merits, joined by Scalia and in part by Alito.
Justice Alito wrote a 10-page dissent on the merits, joined in part by Thomas and Scalia.
Justice Kennedy, Youngstown, and Article II
It’s interesting to read Justice Kennedy’s concurrence in Hamdan v. Rumsfeld for signs of how Justice Kennedy would rule on the scope of the Commander-in-Chief power issues that may come come before the Court in the next few years. Much as I had expected, the opinion follows Youngstown and suggests that Congress’s views are supreme.
The key excerpts:
This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.. . .
The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id., at 635. “When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id., at 637. And “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Ibid.
In this case, as the Court observes, the President has acted in a field with a history of congressional participation and regulation. . . . While [the laws on charging detainees] provide authority for certain forms of military courts, they also impose limitations, at least two of which control this case. If the President has exceeded these limits, this becomes a case of conflict between Presidential and congressional action—a case within Justice Jackson’s third category, not the second or first.
. . .
[A]s presently structured, Hamdan’s military commission exceeds the bounds Congress has placed on the President’s authority in §§836 and 821 of the UCMJ. Because Congress has prescribed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws. At this time, however, we must apply the standards Congress has provided. By those standards the military commission is deficient.
UPDATE: Justice Kennedy also joined the brief concurrence by Justice Breyer that states the following:
Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.
ANOTHER UPDATE: I missed this tidbit from Kennedy’s concurrence the first time around:
Trial by military commission raises separation-of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review. Cf. Loving v. United States, 517 U. S. 748, 756–758, 760 (1996) . Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid. It is imperative, then, that when military tribunals are established, full and proper authority exists for the Presidential directive.
Refresh, Refresh, Refresh
You’re probably doing this here, too.
UPDATE: As of 10:10, here’s what Lyle has for us:
The Supreme Court ruled on Thursday that President Bush did not have authority to set up the war crimes tribunals at Guantanamo Bay, Cuba, and found the “military commissions” illegal under both military justice law and the Geneva convention.
The Court, in the only other decision, ruled that Arizona’s law on the insanity defense does not violate constitutional due process. The ruling in Clark v. Arizona (05-5966) was written by Justice David H. Souter and divided the Court 6-3, although Justice Breyer also filed a partial dissent and partial concurrence. The ruling upheld what is called the “Mott rule” in Arizona, barring psychiatric evidence of a mental disorder short of insanity to offset prosecution evidence of criminal intent.
Stay tuned for more.
ANOTHER UPDATE: More from Lyle as of 10:30:
[The main opinion was] written by Justice John Paul Stevens. That opinion was supported in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Justice Anthony M. Kennedy wrote separately, in an opinion partly joined by Justices Breyer, Ginsburg and Souter. Kennedy’s opinion did not support all of Stevens’ discussion of the Geneva Convention, but he did find that the commissions were not authorized by military law or that Convention.
Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas, the dissenters, each wrote an opinion.
Does this mean that AMK didn’t join any of the JPS opinion? I also wonder if the reading of the opinions will be followed by some important news.
YET ANOTHER UPDATE: You can read the opinions here yourself. Kennedy joined much of the JPS opinion, and there was no “important news.” More blogging on the case from the top.
Four Appellate Nominations
Via Howard, I see that the President has nominated four pretty accomplished individuals to the federal appellate bench. Criminal law scholar and Columbia lawprof Debra Livingston has been nominated to the Second Circuit; District Court Judge Kent Jordan (who I have heard is very sharp) has been nominated to the Third Circuit; Raymond Kethledge (who I’m not familiar with, but I note clerked for Justice Kennedy in OT97) was nominated to the Sixth Circuit; and Stephen Murphy, a U.S. Attorney (who I have met before, and seems great) also was nominated to the Sixth Circuit.
Law clerk readers take note: Two of these nominees are being nominated for the courts on which they once served as clerks, and one is being elevated from the court on which he served as a clerk to its appellate court. (Livingston clerked for Judge Lumbard on the Second; Kethledge clerked for Judge Guy on the Sixth; and Jordan clerked for Judge Latchum on the District Court of Delaware.) Also interesting: three of the four are former Assistant U.S. Attorneys.
Texas Gerrymandering, Consular Notice, and Prison Magazine Cases Decided: Insanity Defense and Gitmo Coming Tomorrow
In a particularly interesting case at the intersection of criminal law and international law, the Supreme Court decided today that violations of a part of the Vienna Convention do not result in suppression of evidence. The majority opinion by Chief Justice Roberts in Sanchez-Llammas v. Oregon is here.
Second, in League of United Latin American Citizens v. Perry, a.k.a. the Tom DeLay Texas gerrymandering case, the Court proved the old adage that complex voting rights cases lead to very long opinions; here, a total of 132 pages of fun. The end result seems to be, in a nutshell: Still no recognizable constitutional limitations on partisan gerrymadering, but some relief for the petitioners under the Voting Rights Act. For analysis, I’m guessing that Rick Hasen will have something up soon.
Finally, in Beard v. Banks, the Court concldued that based on the record before it, a Pennsylvania prison policy denying especially dangerous inmates access to newspapers and magazines did not violate the First Amendment. Breyer wrote the plurality opinion joined by Roberts, Kennedy, and Souter; Justices Scalia and Thomas concurred.
Howard is saying that Hamdan and Clark v. Arizona are set to finish up the Term tomorrow; SCOTUSblog has Tom Goldstein’s predictions based on assignment burdens here.
Article II and the Notice Question
Watching the webcast of the Judiciary Committee hearing on Presidential signing statements brings up a broader point about the Bush Administration’s approach to Article II powers. It seems to me that the Bush Administration’s approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration’s broad view of Article II powers. Most criticism of the Administration’s approach has focused on (1). I’m no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).
Imagine the Administration changed course on (2), and was very explicit about its interpretation of Article II. If that were the case, Congress could respond. Congress would know exactly how the Executive branch is interpreting the law, and would be able to respond accordingly. I believe John Yoo has conceded that Congress would be free to do this even under a broad reading of Article II; for example, Congress could cut funding to the Administration’s efforts that go beyond Congress’s prohibitions. The details of this may be tricky, but the basic idea is sound: When the feedback loop exists, Constitutional checks and balances can adjust to the President’s vision of Article II powers. Think of it as the Coase Theorem of separation of powers.
The problem with Presidential signing statements in their current practice is that they announce that the President will follow a constitutional vision that no one outside the Executive Branch understands. Take the McCain Amendment. Here is the Presidential signing statement that accompanied it:
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
Does anyone actually know what that means? We can read John Yoo’s scholarship and take some guesses about what it might mean, but my sense is that for the most part we don’t really know. And that’s the difficulty: Less that the Administration takes a strong view of Article II than that it won’t disclose precisely what that strong view is. Without the feedback loop, it’s hard for the other branches to respond.
Anyway, this is an oversimplified take on a complex topic that is outside my area of expertise. But I thought I would flag the issue, offer a tentative take, and open it up for comments. As always, civil and respectiful comments only.
Senate Hearings on Presidential Signing Statements
Tomorrow, June 27th, at 10 am, the Senate Judiciary Committee will be holding hearings on the use of Presidential signing statements. The group that is testifying is really top-notch, so this will be a set of hearings well worth watching. Here is the schedule:
Deputy Assistant Attorney General
Office of Legal Counsel
Department of Justice
Washington, DC
Professor
Harvard Law School
Cambridge, Massachusetts
Christopher S. Yoo
Professor
Vanderbilt University Law School
Nashville, Tennessee
Bruce Fein
Partner
Fein & Fein LLC
Washington, DC
Nicholas Quinn Rosenkranz
Professor
Georgetown Law Center
Washington, DC
Filler on Marsh
Dan Filler has some very good commentary on the opinions in Kansas v. Marsh over at Concurring Opinions.
The Oldest District Court Judge
Happy Birthday to Judge Wesley Brown, who turned 99 last week. Hat tip: Confirm Them.
Court Divides Sharply Over Death Penalty
The Supreme Court’s sharp internal divisions about capital punishment were on unusually open display in today’s opinion in Kansas v. Marsh.
Of particular interest, Justice Souter wrote a dissent joined by Ginsburg, Breyer, and Stevens that reveals the animating thinking behind the longstanding interest among these four Justices in chipping away at the death penalty. According to Justice Souter, there is a constitutional guarantee of “morally justifiable sentencing,” and the recent empirical evidence on the death penalty shows that the actual operation of the death penalty can be difficult to justify morally.
That precedent, demanding reasoned moral judgment, developed in response to facts that could not be ignored, the kaleidoscope of life and death verdicts that made no sense in fact or morality in the random sentencing before Furman was decided in 1972. See 408 U. S., at 309–310 (Stewart, J., concurring). Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests. We cannot face up to these facts and still hold that the guarantee of morally justifiable sentencing is hollow enough to allow maximizing death sentences, by requiring them when juries fail to find the worst degree of culpability . . .
We are thus in a period of new empirical argument about how “death is different,” Gregg, 428 U. S., at 188 (joint opinion of Stewart, Powell, and STEVENS, JJ.): not only would these false verdicts defy correction after the fatal moment, the Illinois experience shows them to be remarkable in number, and they are probably disproportionately high in capital cases. While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences . . .
According to Souter, recent empirical evidence suggests that death penalty laws that raise a high risk of being implemented in morally unjustified ways violate the Eighth Amendment, including the Kansas statute at issue in the case.
In his majority opinion, Justice Thomas responds:
The dissent’s general criticisms against the death penalty are ultimately a call for resolving all legal disputes in capital cases by adopting the outcome that makes the death penalty more difficult to impose. While such a bright-line rule may be easily applied, it has no basis in law. Indeed, the logical consequence of the dissent’s argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system. And those precedents do not empower this Court to chip away at the States’ prerogatives to do soon the grounds the dissent invokes today.
Justice Scalia offers more in a solo concurrence, including a response to the empirical picture presented by the dissenters. It concludes:
Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment—in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes—outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.
Five More, Mostly Five-Four
Over at SCOTUSblog, Lyle Denniston has the early scoop on the Supreme Court decisions handed down this morning.
Scholar Doesn’t Appreciate Scalia Cite: But Was The Citation Inaccurate?
In the Los Angeles Times, criminologist Samuel Walker writes that he felt “horror” when his book was cited by Justice Scalia in Hudson v. Michigan:
. . . Justice Antonin Scalia cited me to support a terrible decision, holding that the exclusionary rule — which for decades prevented evidence obtained illegally by police from being used at trial — no longer applies when cops enter your home without knocking. Even worse, he twisted my main argument to reach a conclusion the exact opposite of what I spelled out in this and other studies.
The misuse of evidence is a serious offense — in academia as well as in the courts. When it’s your work being manipulated, it is a violation of your intellectual integrity. Since the issue at stake in the Hudson case is extremely important — what role the Supreme Court should play in policing the police — I feel obligated to set the record straight.
Scalia quotes my book, “Taming the System: The Control of Discretion in American Criminal Justice,” on the point that there has been tremendous progress “in the education, training and supervision of police officers” since the 1961 Mapp decision, which imposed the exclusionary rule on local law enforcement.
My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court’s interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.
Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.
Am I mistaken, or does this complaint ring quite hollow? I confess I am not familar with Professor Walker or his work. But If I understand his op-ed correctly, Justice Scalia did in fact cite Walker accurately for an argument Walker did in fact make: There has been tremendous progress in the education, training and supervision of police officers since the 1961 Mapp decision.
Here’s the passage from Hudson that cites Walker:
Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).
As best I can tell, Professor Walker’s complaint is that Justice Scalia cited his descriptive claim accurately, but then, without mentioning Walker, went on to reach a normative conclusion that Walker personally finds “terrible.” Walker’s book concludes that the Warren Court’s expansion of the exclusionary rule improved police practices, and Walker takes the normative position that a further expansion of the exclusionary rule would be a good thing. Scalia cites Walker’s book accurately about existing police practices, but then takes the normative position that in light of those changes there is no need to further expand the exclusionary rule. In other words, Scalia agrees with and cites Walker’s descriptive argument but then disagrees with Walker’s normative views. But contrary to the suggestion of Walker’s op-ed, Scalia does not suggest that Walker would agree with Scalia’s view about the normative scope of the exclusionary rule.
Professor Walker is certainly free to say that Scalia’s decision is “terrible.” But I don’t think Walker has a case that Scalia committed a “serious offense,” “misused evidence,” and “violated” Walker’s “intellectual integrity.”
UPDATE: Reading over Walker’s op-ed again, I’m struck by an amusing irony: the first paragraph of Walker’s op-ed misdescribes the holding of Scalia’s opinion. It’s not a big deal for an op-ed, of course, but it’s somewhat unfortunate in light of Walker’s charges.