Obama Administration Invokes State Secrets Privilege…Again

From ABC News, Obama Administration Invokes State Secrets Privilege…Again H/T @JakeTapper

The Obama administration invoked the controversial “state secrets” privilege again on Friday, arguing that if U.S. District Judge Vaughn Walker were to permit a legal case against the government to proceed, he would be putting national security at risk.

Attorney General Eric Holder said in a statement about the case, Shubert et. al v. Obama, that “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

Obama administration officials argued that even addressing or attempting to refute the plaintiffs’ claim would require the administration “to disclose intelligence sources and methods, or the lack thereof.”

Holder said he was invoking the privilege despite having outlined new policies and procedures last month containing new internal and external checks and balances for the Justice Department to follow before invoking the privilege, requiring “a thorough, multi-stage review and rely(ing) upon robust judicial and congressional oversight.”

The statement and legal documents were released in a particularly active Friday afternoon document dump — including stimulus jobs numbers and White House visitors logs.

Holder said the “core claims in this case involve questions about ongoing intelligence operations, and allowing it to proceed would disclose critical activities of high value to the national security of this country.” He insisted the Justice Department was not invoking the privilege “to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power.”

I try not to post random political topics on this blog, but when politics intersects with National Security law, JoshBlogs covers.

I find it amazing how the role of Commander in Chief suddenly becomes palatable after a party change. Obama repeatedly campaigned on not invoking the states secret privilege.  So much for change we can believe in. Kevin Bankston from EFF concurs:

Kevin Bankston, a lawyer for the Electronic Frontier Foundation, “even though candidate Obama was incredibly critical of both the warrantless wiretapping program and the Bush administration’s abuse of the state secrets privilege.” The EFF is involved in similar litigation in a different case. The Obama-Biden campaign website describes in part “The Problem” as the Bush administration having “invoked a legal tool known as the ‘state secrets’ privilege more than any other previous administration to get cases thrown out of civil court.” But President Obama has invoked the state secrets privilege in a number of cases since taking office.

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Punch back twice as hard. Holder asks D.C. Councilman to pull commercial promoting School Vouchers

I am very passionate about school choice. It is tragic what the government, especially in the District of Columbia, has done to public schools. And President Obama has done nothing to help promote voucher programs, while his own children attend the best private schools.

From the Chicago Daily Observer:

Former D.C. Councilmember Kevin Chavous of D.C. Children First said October 16 that U.S. Attorney General Eric Holder had recently approached him and told him to kill the ad.

The 30-second ad, which has been airing on FOX News, CNN, MSNBC, and News Channel 8 to viewers in D.C., Maryland, and Virginia, urges the president to reauthorize the federally-funded D.C. Opportunity Scholarship Program that provides vouchers of up to $7,500 for D.C. students to attend private schools.

The ad features Chavous and a young boy–one of 216 students whose scholarships were rescinded by the Department of Education earlier this year when the agency announced no new students would be allowed into the program. The ad also includes an excerpt taken from one of Obama’s campaign statements.

“I saw [Holder] at an event,” said Chavous. “He did ask me in front of others to pull the ad. My response was, ‘No, and I tell you what, if the president does the right thing, not only will we pull it but we will celebrate him.’ ”

Punch back twice as hard.

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Primus on the Future of Disparate Impact Post-Ricci, and My Thoughts

Professor Richard Primus posts on SSRN The Future of Disparate Impact (Michigan Law Review, Forthcoming) H/T Legal Theory Blog.

The Supreme Court’s decision in Ricci v. DeStefano (i.e., the New Haven firefighters case) foregrounded the question of whether Title VII’s disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.

The article asks that I not cite without permission, so I shall not cite it. But I highly recommend you read it through. Justice Scalia cited Profssor Primus’s article on Equal Protection in Ricci, so I am looking forward to his analysis.

I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. See generally Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493 (2003).

I discuss the aftermath of Ricci in a forthcoming article in the Loyola Law Review, titled Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One

The disparate impact analysis came under intense scrutiny in the recent landmark Civil Rights case, Ricci v. DeStefano Although the Supreme Court punted on the issue of whether the disparate analysis impact violates the Constitution, a lone concurring Justice sounded the clarion call.  Like Jacob’s vision of the ladder, Justice Scalia’s concurrence in Ricci presciently portends the “evil day” in which the Court confronts the question of  “[w]hether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection.”

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Questions FAR Professor Candidates Would REALLY Like to Ask at the Meat Market! LOL

From The Faculty Lounge, here are 30 Questions FAR Candidates would really like to ask at the meat market. Pretty funny stuff:

1.  Why did your academic dean ask you to serve on the hiring committee, and how can I avoid the same mistake you made?

2.  Has the economic downturn affected where your committee will be dining on this trip to DC?

3.  What is the starting salary, and how quickly do retirement benefits vest?

4.  Why are YOU asking ME about scholarship, given [y]our respective output in the last three years?

5.  If I were to ask your students how your institution could be improved, what would they tell me?

6.  How important is placement?

7.  Why isn’t your law school ranked in the first tier?

8.  What role do your research assistants perform in grading final exams?

9.  Why did your recent dean search fail?

10.  Can you envision any (ANY!) situation arising in the next 50 years that would require me to teach a UCC course?

11.  How important is quality teaching in the tenure decision?

12.  Does your technology permit me to teach from home?

13.  How successful are faculty-student dating relationships at your school?

14.  Is parking free?

15.  Does your tenure committee view “Professor of the Year” accolades as the kiss of death?

16.  Will I have a window office?

17.  If you require four articles for tenure and I have already published four articles, do I start with tenure?

18.  Does blogging count as scholarship?

19.  Is teaching in the night program completely optional?

20.  How many reams of personalized letterhead stationery do you provide?

21.  Will I have more than one new prep during my first year of teaching?

22.  Will my office be equipped with cable TV hook-up?

23.  What brand of coffee do you serve in your faculty lounge, and how often are pastries and fruit provided?

24.  If you could jettison some of your faculty deadwood, which three colleagues would be gone by tomorrow?

25.  How often do you host brown-bag lunch presentations, and do I have to stay for the presentation if I have no interest in the topic?

26.  What makes your school the best fit for my talents?

27.  When did you last review and offer written comments on a draft of a colleague?

28.  Can I apply early for tenure if I use PowerPoint in my classes?

29.  Will the other seventeen folks on your faculty who teach constitutional law be upset that you’re telling me I can teach the course every semester?

30.  May I have those assurances IN WRITING?

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Professor Solum’s New Article on Heller Agrees with my Originalism for Dummies Article

Professor Solum just posted his long-awaited article to SSRN, titled District of Columbia v. Heller and Originalism.

I encourage you to read the entire article, but I would like to focus on one area, where Professor Solum agrees with my reading of Heller.

In his article, Professor Solum wrote:

This disagreement between Justices Scalia and Stevens about the relationship between the prefatory and operative clauses points to a larger disagreement. While Justice Scalia inquired into the semantic content of the operative clause, Justice Stevens focused on the purpose or teleological meaning of the Second Amendment. In a rough way, this disagreement corresponds to the difference between original intentions originalism and original meaning originalism.

In an unpublished paper I wrote in December 2008 for Professor Malcolm’s Common Law & American Rights class, titled Originalism for Dummies, I wrote something along very similar lines. Profssor Solum linked to this article back in December 24, 2008 on the Legal Theory Blog.

[In contrast to Justice Scalia’s original public meaning approach], by focusing almost exclusively on the drafting history, Justice Stevens fails to appreciate the rich common law history of the right to keep and bear arms, and how this history would have informed the original public understanding to an observer in the late eighteenth century. Words derive meaning from what they mean in context . . . Curiously, Justice Stevens rebukes Justice Scalia for “dwelling” on historical sources, including the English Bill of Rights and Blackstone’s Commentaries, proclaiming they only shed “indirect light” on the topic. However [Justice Stevens’s] application of originalism leaves much to be desired. Perhaps Justice Stevens did not properly undertake such [an original public meaning] excursion, because to look at this history paints a very strong picture in favor of an individual right to keep and bear arms.In FCC v. Pacifica Foundation, the Supreme Court analyzed George Carlin’s famous “seven dirty words” that cannot be repeated over the airwaves. Similarly, I have put together the seven dirty words of intentionalism that should not be used in an originalist analysis. This list focuses on words which seek to ascertain the framer’s intent, rather than what the original public meaning of a text is. The words, in no particular order are: (1) wished; (2) contemplated; (3) recognized; (4) intended; (5) motivated; (6) assumed; and (7) considered. Throughout Justices Stevens’s and Breyer’s dissents, they are both guilty of relying on these concepts to try to paint a picture what was on the Framer’s mind. Keep a keen eye open for these words, because they reveal a sneaky attempt to conflate original intent, a discredited form of originalism, with original public meaning originalism, an essential method of historical analysis.

I think Professor Solum is dead-on. Scalia’s opinion is closely tied to an original public meaning inquiry, or semantic originalism as Professor Solum refers to it. Stevens’s opinion utilizes an original intent approach.  I’m pretty content with myself for independently coming to the same conclusion about such as seminal case as a preeminent theorist like Professor Solum. Gratefully, I heavily relied on Professor Solum’s theoretical work when writing this paper.

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Landlords can ban guns of permit holders. I agree. No State Action, 2nd Amendment Does Not Apply.

From Knoxnews, Landlords can ban guns of permit holders (H/T Instapundit):

A landlord can legally prohibit tenants who hold handgun carry permits from bringing their weapons into a rented apartment, according to an opinion from Attorney General Bob Cooper that was released today.

The opinion came in response to a request from state Rep. Tony Shipley, R-Kingsport, who said he had thought the answer would have been to the contrary.

Says the opinion: “A landlord can prohibit tenants, including those who hold handgun carry permits, from possessing firearms within the leased premises.”

Rep. Tony Shipley, R-Kingsport, who is probably not a lawyer, expresses is woeful ignorance of the Constitution:

Shipley said the Fourth Amendment to the U.S. Constitution would apply to someone living in an apartment to prevent law enforcement officers from entering without a search warrant.

“If the Fourth Amendment applies, why doesn’t the Second Amendment apply?” he said. “Can a landlord say you give up free speech, under the First Amendment, in the apartment? I think not.”

Mr. King, you think wrong. For whatever reason, most people do not realize that the Constitution imposes restrictions on state action by the government, not on private actions by individuals. Of course a landlord can force you to give up free speech to live in an apartment. I get annoyed whenever homeowners who live in developments are not allowed to fly flags. You have no first amendment right to fly a flag in a private community. If one more person on Facebook tells me, “you have the right to free speech but I disagree,” I may lose it.

I also get annoyed whenever the NRA tries to force businesses to allow gunowners to keep weapons in their cars on private parking lots. Private property is private property. If a business does not allow me to bring my gun onto their property, I have the choice to go elsewhere. If my employer does not allow me to bring a gun to work, and that is important to me, maybe I should work elsewhere.

OK. Rant over.

Really Cool, Yet Scary Visual of the U.S. National Debt

Check out this scary visual of every aspect of the U.S. National Debt. It makes the sign in Manhattan look like a joke. H/T Adelle L.

I wish I could program a clock like this that would blare out “Who is John Galt” every time the debt increased, say a million dollars. It would never shut up.

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Is the Pay Czar Unconstitutional? Professor McConnell says Yes!

Professor, Former Judge McConnell writes in the WSJ that the The Pay Czar Is Unconstitutional (H/T WSJLawBlog). I have written about the Regulatory Czars before and have also queried whether they are Constitutional.

Mr. Feinberg’s ukase is the most prominent example (and not just by the Obama administration) of the exercise of power by an individual unilaterally appointed by the executive branch without Senate confirmation—and thus outside the ordinary channels of Congressional oversight.

The Appointments clause of the Constitution, Article II, section 2, provides that all “Officers of the United States” must be appointed by the president “by and with the Advice and Consent of the Senate.” This means subject to confirmation, except that “the Congress may by Law vest the Appointment” of “inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

There is no doubt that Mr. Feinberg is an “officer” of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as “any appointee exercising significant authority pursuant to the laws of the United States.”

. . .

While somewhat more disputable, Mr. Feinberg’s is probably an “inferior” officer, defined as one subject to supervision and removal by a member of the cabinet. . . . This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so. On the contrary, it vested the authority to implement TARP’s compensation provision in the secretary of the Treasury. The secretary may sub-delegate that power to someone else—but that someone must be an “officer” properly appointed “by and with the advice and consent of the Senate.”

The Supreme Court observed in Buckley v. Valeo that the provisions governing appointments under the Constitution reflect more than “etiquette or protocol.” They embody the Founders’ conviction that all power under U.S. laws must be exercised by officers with constitutional authority.

This makes sense. McConnell concludes:

The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation. It is no reflection on Kenneth Feinberg, who has a sterling reputation and who appears to have approached these sensitive duties with a spirit of commendable integrity, to say that the checks and balances of the Constitution should be scrupulously observed. They were not. Because he is not a properly appointed officer of the United States, Mr. Feinberg’s executive compensation decisions were unconstitutional.

This is a far cry from articles proclaiming that President Obama is ineligible to receive the Nobel Prize. The Constitution does put valid checks on the separation of Powers, and the Executive must obey them.

This is also on my works in progress list, and I am glad McConnell seems to agree with me.

Update: Check out Johnathan Adler’s take on Volokh.

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Is Internet Obscenity Based On National or Community Standards? 9th Circuit Thinks National, and Constitution Does Not Have Geography Clause.

I have previously queried whether the Constitution has a geography clause. That is, do Rights Mean Different Things in Different Places?  Orin Kerr writes about a new 9th Circuit case, United States v. Kilbride that holds that national standards, and not community standards should govern Internet obscenity.

The Courts have imposed a geography clause in several areas, including fourth amendment protections, second amendment gun control laws (an oxymoron if I ever heard one), and most famously in first amendment obscenity laws.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court announced a three-part test to determine whether a work counts as “obscenity” for purposes of constitutional law:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ( c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In explaining the choice of community standards instead of national standards, the Court wrote:

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.

Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200: “It is my belief that when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards — not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard’ . . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”

But the 9th Circuit found different standards should apply on the Internet,  and rather look to a community standard, the courts should look to a national standard. In Kilbride, Judge Fletcher writes:

The divergent reasoning of the justices in and out of the majority in Ashcroft v. ACLU, 535 U.S. 564 (2002) leaves us with no explicit holding as to the appropriate geographic definition of contemporary community standards to be applied here. Nonetheless, we are able to derive guidance from the areas of agreement in the various opinions. . . .

Justices O’Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. . . . Justices O’Connor and Breyer were joined by Justice Kennedy’s opinion, as well as Justice Stevens’s dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns.

At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O’Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling.

Accepting this distinction, in turn, persuades us to join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. The constitutional problems identified by the five justices with applying local community standards to regulate Internet obscenity certainly generate grave constitutional doubts as to the use of such standards in applying §§ 1462 and 1465 to Defendants’ activities. Furthermore, the Court has never held that a jury may in no case be instructed to apply a national community standard in finding obscenity. To “avoid[ ] the need to examine the serious First Amendment problem that would otherwise exist,” we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the Internet.

Kerr aint buying it:

“As a matter of law, I don’t find this particularly persuasive . . . Whether the Ninth Circuit was right or wrong, the likely effect is to put a case on the Supreme Court’s docket in the next year or two on whether Internet obscenity requires a different standard than traditional obscenity. That should be a fascinating case.”

But aside from a potential misreading of 30 years of Supreme Court precedent (this is the 9th Circuit after all), does Judge Fletcher have the concept right? Especially in the context of the Internet, where information freely flows from around the world, why should a person who sends an e-mail from San Francisco to a Georgian be judged according to Macon’s community standards? While I am not sure about the validity of community standard in general, as announced in Miller, it makes even less sense to apply community standards on the Internet.

If this creates a circuit split that ultimately does go up to SCOTUS, as Kerr suggests, this may make for an interesting article. In the works, on the list.

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Newsweek: The History of Birth Control

Check out this interesting presentation from Newsweek.

Nothing legal here (Griswold aside), but this is a pretty cool progression of Birth Control throughout the ages. If prostitution is the oldest profession, then birth control is likely the oldest tool :)

 

 

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