House Oversight Committee votes to recommend holding Holder in contempt.

It was 23-to-17, along party lines.

“Our purpose has never been to hold the attorney general in contempt,” Mr. Issa said. “Our purpose has always been to get the information the committee needs to complete its work — that it is not only entitled to, but obligated to do.”...

“I treat assertions of executive privilege very seriously, and I believe they should be used only sparingly,” said Representative Elijah E. Cummings of Maryland, the panel's ranking Democrat. “In this case, it seems clear that the administration was forced into this position by the committee’s unreasonable insistence on pressing forward with contempt despite the attorney general’s good faith offer.”

ADDED: So what happens if he is voted in contempt?

Drudge propagates the "Obama is like Nixon" meme.

I've already mobilized my "Obama is like Nixon" tag for the occasion. That was the 13th time I used it.

"I have realized that I am not really all that conservative, I just hate the double standard in the mainstream media."

"Six Hundred newspapers would blare Fast and Furious on the front page every day if Bush were in office. President Obama has managed to win office while the NYT and Wash Post are still in business, and can carry the water for him. They will be gone soon, but for now, this will be a 2 day story, 'nothing to see here, keep it moving.'"

So says Fprawl, in the Fast and Furious/Executive Privilege thread.

Obama exerts executive privilege over Fast and Furious documents.

"In a letter to Rep. Darrell Issa, R-Calif., a Justice Department official said the privilege applies to documents that explain how the department learned that there were problems with the investigation called Operation Fast and Furious."

ADDED: I'm going to add my "Obama is like Nixon" tag. I think a lot of Americans, when they hear "executive privilege" think of Nixon. And, unfortunately for Obama, we've been hearing plenty of talk about Watergate lately, what with the 40-year anniversary of the break-in. Most notably: "Woodward and Bernstein: 40 years after Watergate, Nixon was far worse than we thought." Ironically, that was a mainstream media effort to help Obama.

But Obama has suddenly chosen to look like Nixon. It must be worth it. And without the documents, we must speculate about what is in them.

ALSO: This creates an occasion to look back and see when Presidents other than Nixon have invoked executive privilege. I'm going to rely on Wikipedia, so correct me if I'm wrong. After Nixon, the next President to invoke executive privilege was Bill Clinton, in 1998, trying to keep aides from testifying in the Lewinsky scandal. The district court judge ruled against him. Clinton also used executive privilege to negotiate the terms of his own testimony in the scandal.

George W. Bush used executive privilege a few times, as you can see at the Wikipedia link.

Obama issues a "signing statement" saying he won't follow the part of the budget bill that he thinks violates separation of powers.

Jake Tapper reports:

One rider [to the bill] – Section 2262 -- de-funds certain White House adviser positions – or “czars.” The president in his signing statement declares that he will not abide by it.

“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”

Therefore, the president wrote, “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”

In other words: we know what you wanted that provision to do, but we don’t think it’s constitutional, so we will interpret it differently than the way you meant it.

Tapper notes that when he was running for President, Obama was very critical of the way President Bush used signing statements "in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation.” And then-Senator Obama said he would "not use signing statements to nullify or undermine congressional instructions as enacted into law." Of course, Obama is President now.

Lawprofs Jack Balkin and Eric Posner talk about what sorts of "policy views" Obama will try to "entrench" on the Supreme Court.

In this new Bloggingheads episode.

Obama might want ideological liberals -- right? -- but he doesn't really want judges who will rein in executive power, does he?



"Much of what the Obama administration will do in the area of executive power is just dial things back one notch."

Hmmm....



So, Obama will dial back to 10?

The political news of the day.

1. Obama's Attorney General: Eric Holder -- "a centrist on most law enforcement issues, though he has sharply criticized the secrecy and the expansive views of executive power advanced by the Bush Justice Department."

2. Ted Stevens finally goes down to defeat. The new Senator from Alaska is Mark Begich. The Dems now have 58 seats in the Senate, 2 short of filibuster-busting power.

3. Hillary might say "no" to SOS: "The Clinton camp’s effort to downplay her interest in the post might simply reflect her need to create an alternative storyline if the deal falls apart for other reasons, including the possibility that insurmountable problems arise during the vetting process, Democrats not connected with Clinton cautioned. Another possible motivation: Pushing back against the perception that she’s at the mercy of Obama’s team."

4. No Beau.

5. Joe won't go.

6. Draft Sarah.

7. Ayers airs his pent-up thoughts: "Not only did I never kill or injure another person, but the Weather Underground in its six-year existence never killed or injured another person... We did something that was extreme. Some of you would call it not only extreme but kind of nuts. You might call it off the track. You might call it crazy. You might call it defying of common sense. It was certainly illegal. To call it terrorism stretches the definition of terrorism to everything you don't approve of."

8. Remember Jerry Brown? He's now the California attorney general and he's seeking constitution review of Prop 8 in the California Supreme Court. He's looking for "certainty and finality in this matter."

9. Huck's being mean to Mitt.

10. Do we have to keep thinking about Al Franken?

Is it foolish to question whether the Vice President is part of the Executive Branch?

Glenn Reynolds -- in a NYT op-ed -- says no:

Article I of the Constitution, which describes the authority of the legislative branch, says that “the vice president of the United States shall be president of the Senate, but shall have no vote, unless they be equally divided.” Aside from the job of replacing a president who dies or is unable to serve, the only vice presidential duties that are spelled out in the Constitution are legislative in character.

The Vice President sloughs off on this job terribly, don't you think?

But if the vice president is a legislative official, then the exercise of executive power by the vice president raises important constitutional questions related to the separation of powers. The Supreme Court has held on more than one occasion that legislative officials cannot exercise executive power. The Court would likely dub this a “political question” that is beyond its purview, but Congress is empowered to remedy this sort of thing by legislation.

I think the better way to state the rule is that one branch cannot exercise the power associated with another branch unless a specific clause provides otherwise. Thus, the President has a legislative role because he's been given the veto power, and the Senate has a judicial role in trying impeachments, and so forth. So I don't think the specifically assigned legislative function means that the VP is not part of the executive branch.

Reynolds sees value in locating the VP in the legislative branch in order to be able to say that he's constitutionally forbidden to perform the executive function.

And Congress should do just that: pass a law to prohibit the vice president from exercising executive power. Extensive vice presidential involvement in the executive branch — the role enjoyed by Dick Cheney and Al Gore — is not only unconstitutional, but also a bad idea.

The reason a statute is needed is because the courts would be unlikely to enforce the constitutional limitation Reynolds perceives. Reynolds bolsters the constitutional interpretation by observing that it would also be a good idea, since it would keep the VP from becoming enmeshed in the sort of presidential problems that might, through impeachment or resignation, bring the VP into the presidency.

I don't really like the idea of Congress telling the VP what to do, and I'm not inclined to buy the constitutional argument either.

John Yoo on the Supreme Court and its Guantanamo decision, Boumediene.

In the WSJ:

Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court.

Is this really a myth? Hasn't it been clear for many years that the conservatives needed a swing vote (or two, before Alito)?

Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school.

Oh, yeah, academics. When didn't they complain that the Court is too conservative?

Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.

Saves his claims of judicial supremacy? If you're going to use that inflammatory term, why don't you think it applies just as well to striking down the Gun Free School Zones Act and those attempts to abrogate sovereign immunity? (Justice Kennedy was in the majority in those cases.)

Courts interpret statutes and constitutional provisions and, in case of conflict, declare the Constitution the winner. To do that is to do what is required. It's not a power grab. The real problem — and of course Professor Yoo knows this — is interpreting the Constitution too broadly so that it beats out a statute when it shouldn't. That only deserves to be called "judicial supremacy" if the judge willfully expands the meaning of the Constitution to strike down a statute he doesn't like.

So, really, to put it undramatically, it all boils down to whether the majority or the dissenters had the better interpretation of the Constitution. Yoo, not surprisingly, agrees with the dissenters. Since he also, I assume, approved of the statute, his agreement with the dissenters doesn't test whether he's above the "brazen power grab" he sees from the majority. He wants this statute to survive.

The Boumediene majority ... assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.

Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.

Now, wait a minute. Yoo is not saying merely that the proper constitutional interpretation yields strong executive powers in the area of war. He's saying that war is different, and courts should not dare to follow their ordinary — business-as-usual — approach to constitutional interpretation. That, in fact, is an argument for judicial willfulness, because it demands that the judges look at real-world conditions, have views about what is good and bad, and adjust the meaning of the Constitution accordingly.

Do not misread me. I'm not saying whether I think the majority or the dissenters in Boumediene did a better job of constitutional interpretation. I'm also not saying whether I think any of the Justices went beyond interpretation and picked the result they believed would do the most good. I'm not even talking about whether ideas about what is good belong in proper constitutional interpretation.

I'm only saying that Yoo contradicted himself.

The Supreme Court thwarts President Bush's expansive vision of executive power.

Texas wins a big victory against the Bush Administration in Medellin v. Texas:

By 6 to 3, the court ruled that the president went too far in 2005, when he decreed that the states had to abide by a 2004 decision by the World Court. That decision found that several dozen Mexican citizens who had been sentenced to death in the United States had not been given the assistance from Mexican diplomats that they were entitled to receive under an international treaty....

Mr. Medellin’s conviction and sentence were upheld in the Texas courts despite the 2004 finding by the World Court, and the Supreme Court concluded on Tuesday that President Bush had no authority to order the state courts to reverse themselves, no matter what the World Court said....

The Supreme Court ruling acknowledged that President Bush, in pressing Texas to take another look at the Medellin case, was acting on behalf of the “plainly compelling interests” of fostering observance of the Vienna Convention and trying to maintain good relations with other countries.

However, the ruling added, “The president’s authority to act, as with the exercise of any governmental power, ‘must stem either from an act of Congress or from the Constitution itself.’ ” The language cited was from a 1952 ruling in which the high court found that President Harry S. Truman did not have the authority to have the federal government seize and run steel mills.

Here's Roberts's opinion.

UPDATE: Here's the Wall Street Journal article, which emphasizes the insulation of the state courts from the dictates of the international court — on treaties that the U.S. has signed:

Treaty obligations, in other words, do not necessarily take on the force of law domestically. Rather, Congress must enact legislation for whatever provisions -- such as consular notification -- that it wants to make the formal law of the land. This distinction matters because it establishes a fire wall between international and domestic law. It also protects the core American Constitutional principles of federalism and the separation of powers. As Justice Roberts points out, the courts must leave to the political branches "the primary role in deciding when and how international agreements will be enforced."

Of course, President Bush attempted to take the action necessary to make the treaty obligation enforceable in state courts, and this is the exercise of power that the Court rejected.

"If you don't pass universal health care by July of 2009... I'm going to use my power as president to take your health care away from you."

John Edwards threatens Congress ... idly.

The Democrats often criticize Bush for having an overbroad theory of executive power, but at least when Bush grasps for power, it's for things the President can do on his own, leaving Congress and the courts hard pressed to stop him. But Edwards it promising to do something that a President can't possibly do on his own.

"A kafuffle has broken out between Yale Constitutional Law Professor Jed Rubenfeld and self-righteous right-wing blogger 'Simon.'"

LOL. Our Simon has a quote for his banner from preening, left-wing, he's-not-Mickey blogger Stephen Kaus (who seems to be some sort of lawyer but thinks judges announce decisions by saying "Decision: [name of winning party]" and that there is a word "kafuffle").

IN THE COMMENTS: Inwood writes:

I don't know how anyone could fail to, um, decide correctly which is more reasonable from both a commonsense POV, & a Con Law approach: (a) the carefully reasoned & well-expressed points presented by both Mukasey & Simon or (b) the, um, “self-righteous” as well as hysterical "five days from the effective date of Mukasey's appointment, we're all gonna be back in the McCarthy era where, because we've talked to certain people, expressed certain ideas, or are some kind of free thinkers; we’re gonna be on the "National Wire Tapping List", following which we may well be randomly water boarded by the jackboots of BushHitler" nonsense of The NYT & these guys.

BTW, IR, how about “Kausfluffle”?

And Simon is unruffled by the Kausfluffle:

I'm not sure how ruffled my feathers could really get when someone whose sole claim to fame is having a brother more famous, more erudite and more accomplished than he is decides to demonstrate the same lack of reading comprehension skills (he completely misapprehends my post, not to mention making some very questionable assumptions) by scrawling some graffiti on the sewer wall of the internet.

I mean, really, Steve Kaus? For all the world, he's the blogosphere's equivalent of the brother of the Paul Bettanny character in Wimbledon.

And what's with the "Simon" in scare quotes? It's not as if my last name's a secret or hidden.

ALSO IN THE COMMENTS: Too Many Jims said "there are better indictments of Kaus' writing than "kafuffle is not a word." And I said:

I have many indictments, but that doesn't mean I'm going to spend my scarce time rebuffing some lawyer who writes for readers that he thinks will be awed by the title "Yale Constitutional Law Professor." I've seen too many things written by Yale Constitutional Law Professors to get stirred up when a non-Yale Constitutional Law Professor comes along and acts like something must be true because it was written by a Yale Constitutional Law Professor. Kaus must be: unsophisticated/blinded by ideology/out to manipulate readers. I have no time for that.

MORE: Jed Rubenfeld — the Yale lawprof who wrote the NYT op-ed that started all this — emails:

In response to my op-ed, some have said, "But Judge Mukasey in no way suggested a presidential authority to ignore constitutional statutes; all he meant was that the president has authority to ignore unconstitutional statutes." Others have wondered, on my behalf, whether, given Judge Mukasey's actual statements, and given the history of executive-power claims by the present Administration, this reply is in fact a meaningful reply to the point I made in my op-ed. Of those posting on your blog, "Laser" comes closest to saying what I myself would have said. But in case it would be helpful, here is my own answer.

There are two interpretations of Judge Mukasey’s statements that I meant to be addressing simultaneously and that I would object to equally.

Judge Mukasey indicated that the president has constitutional authority to disregard a federal statute if “what goes outside the statute nonetheless lies within the president’s authority to defend the country.” The president was not above the law, Judge Mukasey emphasized, but the law “starts with the Constitution.” A "statute, regardless of its clarity, can't change the Constitution."

The first question — and what I regard as the real question — is whether Judge Mukasey's statements imply a presidential authority to ignore a federal statute in the following kind of case: (a) where both the president and the Congress possess constitutionally granted power over a certain subject matter; (b) where Congress has exercised its constitutionally granted power; but (c) where the president, in the exercise of his constitutional power, wants to do something that is otherwise constitutionally permissible, that he believes justified in the name of defending the nation (at least in wartime) as he thinks best, but that the enacted statute prevents him from doing. I think Judge Mukasey's statements at least leave open the possibility that the president has authority to disregard the statute in this kind of case.

There are two interpretations of Judge Mukasey's statements according to which he could have endorsed such an authority. First, he might have meant: (1) that, under our Constitution, executive power simply trumps a constitutionally enacted statute in those cases. This is not an unintelligible position. Where two branches each have power over a certain subject matter, one must be supreme over the other, even if both are acting within their constitutionally granted powers. In matters of defending the nation in wartime, someone might intelligibly believe that the executive power must be supreme. On my view, however, this position is plainly unacceptable, contrary to Youngstown, contrary to the supremacy clause, and a subversion of the Constitution’s foundational principles.

Second, Judge Mukasey’s statements could be interpreted to mean: (2) that in the cases specified, the statute becomes unconstitutional just because the statute has infringed on executive power. Now, some people seem to think that this is very different from position (1). They say, "On this view, Judge Mukasey was merely arguing for an executive power that everyone agrees to -- the power to disregard an unconstitutional statute." For myself, I do not view position (2) as meaningfully different from position (1). I think position (2) just is position (1), dressed up in different words; or, to put it the other way, that position (1) just is position (2), dressed up in different words. I take position (2) to be unacceptable precisely because it boils down to the same thing as position (1). I also take position (2) to be close, if not identical, to the position articulated in the repudiated “torture memo.”

I thought about trying to distinguish these two positions in my op-ed, but in the end decided not to. I made this decision not only to save words. On my view, the two positions are in the end not distinguishable, so it is obfuscatory to try to make them sound distinct.

Let me emphasize that I take both positions (1) and (2) to be distinguishable from position (3), which holds that the president has the authority to disregard a statute that unconstitutionally asserts congressional power over a subject matter that the Constitution simply does not grant Congress power over. Thus if Congress passed a statute ordering the deployment of troops in a fashion so specific that Congress had attempted to exercise a power that only the commander-in-chief possesses, Congress would not have been exercising one of its constitutionally granted powers and would not have passed a valid statute at all. By contrast, I take FISA and the military commissions act clearly to govern matters that both Congress and the president have powers over (at least, in FISA’s case, as applied to communications made by United States persons on United States soil). It follows that the president is simply breaking the law if he unilaterally violates these statutes, regardless of which position, (1), (2), or (3), is asserted in defense thereof.

What is key is that there are some things with respect to which the President has exclusive power. This is commonly known as Jackson's category 3 (from the Youngstown case). Here is Justice Jackson's delineation of the concept:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system....

[Where the President's action is contrary to a federal statute,] it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject.

I think this is what Mukasey was referring to, and, as such, it is a solid and unremarkable position. The real dispute is not over whether the President can violate statutes, but how big "category 3" is: How much power does the Constitution give exclusively to the President? I don't doubt that Mukasey has a more expansive view of "category 3" than Rubenfeld does.

"Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern."

According to Thomas J. Miles and Cass R. Sunstein.

Justice John Paul Stevens is the runner-up...

The Judicial Restraint Award, for the most humble exercise of judicial power, goes to Justice Stephen G. Breyer....

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia....

And Anthony Kennedy is the most neutral, followed by David Souter.

Agree?

ADDED: This is making me think of that radio show I did with Sunstein the day Samuel Alito was nominated to the Supreme Court:

Cass Sunstein came ready with statistics based on reading 41 Alito dissents and concluding that Alito was a predictable conservative vote, a point he repeated at least five times. And then he accused me of spinning.... Isn't this like "he who smelt it, dealt it"? He who detects spinning is the spinner?

IN THE COMMENTS: Henry writes:

I'm sure Sunstein's and Miles' methodology is spot on. So, in the spirit of the Emmy's, I suggest the following:

The Consistent Application of Principles Award goes to Justice Clarence Thomas.

The What-Side-of-Bed-Did-I-Get-Out-of-Today Award goes to Justice Anthony Kennedy.

The Check Executive Power Award goes to Justice Antonin Scalia.

The Check? Moi? Award goes to Justice Stephen G. Breyer.

(As an aside -- remember how concerned the left was with the idea that Roberts and Alito would be too prone to defer the executive branch? Apparently deference is a good thing!)

Thanks for the opening, Professors.

Very well put! I haven't examined the empirical methodology, so I have no idea what skewing and bias may lie therein, but Miles and Sunstein have skewed the labels like mad. Thanks to Henry for doing the reverse-skew so well.

Blogging the Republican debate.

1. It started — like my Fedcourts class — at 4, and I set the old Explorer 8000 to save it for me. So, let's go.

Chris Matthews is asking the questions. The subject is the economy (so let's see who tries to leaven the discussion with easier material). The locale is Michigan. The big excitement is that Fred Thompson is making his first appearance in a debate.

Fred gets the first question. "I see no reason to believe we're headed for ... [gigantic, scary pause]... an economic downturn." Oh, Fred, do not do that again.

2. Mitt Romney is second, and he looks startlingly handsome after that long gaze into the face of Fred. Has he changed his appearance, or is it just the contrast? He seems so lively after the lethargic Thompson. He gets off a joke right away, just some silly business about how he was afraid the governor of Michigan would tax the debate, but it gets a huge laugh.

Next up is Giuliani, and he sounds vigorous, listing "fundamentals," and sneaking in the subject of baseball. Also, he throws out the red meat: too many lawsuits.

3. Ron Paul rails about the monetary system and assigns us homework: we need to study monetary theory. John McCain assigns Ron Paul homework: "The Wealth of Nations." He [McCain] was asked about the fairness of taxes, though, and he veers off the topic after he assures us that everyone pays taxes.

4. Mike Huckabee is asked about his idea for a national sales tax. Won't that mess up the economy? No, it'll be great because it will "un-tax productivity." And drug dealers, illegal aliens, and prostitutes and pimps will start paying taxes. Huckabee is the first person to sound really sympathetic to the problems of working people.

5. Oh, good Lord. I just got a glimpse of how many guys are on the stage. Who are they all? Duncan Hunter is complaining about "Communist China," and Matthews gives Thompson a chance to defend free trade. Sam Brownback won't raise taxes. Tancredo sounds rational booming about Medicare and Social Security. (His microphone is turned way up and echo-y.)

6. Giuliani wants to cut taxes as much as possible. (It worked in NYC.) Romney wants to cut taxes and spending. (It worked in Massachusetts.) He loved the line-item veto when he was Governor of Massachusetts and thinks we should have it at the federal level. No acknowledgment of its unconstitutionality.

Oh! Ha, ha. Giuliani is next, not only telling us the line-item veto is unconstitutional, but bragging that he, personally, took Bill Clinton to court and had it declared unconstitutional. He adds: "What the heck can you do about that if you're a strict constructionist?" Ha, ha. He got in an extra kick — the two of them both claim to be "strict constructionists" (to appease the pro-life sector of the party). Oh, that was rich! He beats Mitt down even further saying he brought taxes down in New York while Romney raised them. We see Romney in the split screen. Is he writhing in pain?

Romney gets "surrebuttal" time [— the WSJ transcript has "Sir, rebuttal" — ] and reels out competing statistics. "Look, we're both guys who are in favor of keeping spending down and keeping taxes down." We see Giuliani in the split screen. I'm guessing he's thinking about how he doesn't care what they — as "guys" — favor; the question is what do you do. For guys, it's the action that counts. Romney goes on to say the place they differ is on the line-item veto and "I'd have never gone to the Supreme Court." So. You mean you like executive power and you don't want to hear what the Supreme Court has to say about it? Matthews asks him if he believes the line-item veto is unconstitutional and he's all "I do not believe it is." Giuliani: "You don't get to 'believe' about it. The Supreme Court has ruled on it." And Bill Clinton was trying to take $200 million from his city unconstitutionally. (Bill Clinton! That outrageous renegade who's married to our inevitable opponent. Only Giuliani is beating up on Hillary at this point. He's out in front because of this.)

Now, if Mitt Romney was really knowledgeable at this point, he'd say that Justice Scalia wrote a wonderful dissent in New York v. United States saying that the so-called line-item veto was constitutional, and hasn't Giuliani been going around saying he wants to appoint Justices like Scalia? But we don't get the chance to see if he's that sharp, because they move on to another question. Yet I think if he'd known enough to say that he'd have insisted on getting one more shot in.

7. Sorry. I got interrupted. If this were my job, I'd have to finish, wouldn't I? (An economics point about an economics debate.)

8. [Added the following morning.] I'm sorry I didn't keep going, but think how long this post would have been. If you watch straight through without pausing, you can blog the whole thing without it getting ridiculous, but if you pause, it's a big problem. Anyway, I did eventually watch the whole thing, but nothing jumped out at me as interesting enough to describe. Maybe my plan for future debates will be: blogging the hell out of the first half hour. Most people leave after that, I'll bet, and I think the candidates act as if they believe they do. Giuliani and Mitt sure did, and this morning everyone's talking about how they overshadowed Fred the Debate Debutant.

Speaking of plans, I love the first comment in here by Trooper York:

Adm. Painter: What's his plan?
Jack Ryan: His plan?
Adm. Painter: Russians don't take a dump, son, without a plan
(Fred Thompson as Adm. Painter in the Hunt for Red October 1990)

I've read the opinion in the 6th Circuit NSA case.

And updated my original post -- at great length.

ADDED: My analysis of standing is at that link, but we're talking about it in the comments here. Marty Lederman was nice enough to comment and say he appreciated my analysis, so let's look at what he wrote about the case. He says that the standing analysis is "complicated -- real FedCourts inside baseball" and opines that ordinary people are unlikely to sit through the explanation.

This really is a problem with fedcourts doctrine. You have strange, alienating doctrine that prevents courts from doing what it seems that courts are for: deciding the case on the merits. Judges act as though they are carrying out some higher calling when they decline to act, and maybe they are, but if what they are doing is incomprehensible to people, they are likely to draw their conclusions about the quality of the case based on the outcome.

Lederman says that the Supreme Court's standing doctrine is "a mess" -- but that's mainly true because the Court is composed of some very different individuals, some of whom would never have adopted the constitutionalized 3-part injury-in-fact test in the first place and because the test must be applied in complex and varied fact settings, which has given the Court's swing voters room to affect outcomes in a pragmatic fashion. The mess could be cleaned up pretty easily by replacing a justice or two. Which way do you want it cleaned up? Would you rather have it kept a mess than cleaned up the way you don't like? If yes, then you should understand why we've got the mess.

Marty observes that whatever you might say about the injury to these plaintiffs, it can at least be said that the program they challenge is injuring someone, and it's a real, not a hypothetical controversy. The constitutional aspect of standing doctrine is a gloss on the Article III definition of "the Judicial Power" in terms of "cases" and "controversies," and Marty seems inclined to revive the way the Warren Court used to talk about standing doctrine. We definitely have a real controversy, so why stress the concrete and particularized injury to these plaintiffs? He blames the defendants for withholding the information about who the program has actually targeted: "What constitutional value is served by allowing that type of uncertainty -- wholly a function of the government's own refusal to identify the victims -- to be grounds for avoiding a resolution on the merits?"

I think the answer, for those who support the current standing doctrine, is that standing is required across the board, and you don't get to create exceptions to the requirements in individual instances where the case seems justified. Standing is a matter of the constitutional limit on judicial power, so nothing that the parties do can enlarge it. Even if the Executive Branch wanted the federal court to decide a case beyond the Article III judicial power they would have to decline. If Congress passed a statute granting jurisdiction beyond the judicial power, it would be unconstitutional. These constitutional limits on the courts' power are just as important as the limits on the executive power that you wish they would address.

That's the strong view of standing -- which goes along with a strict view of separation of powers. Not all the justices support the strong view all the time. I note that in Laidlaw, the case that Judge Gilmore relied on, Justice Scalia was forced to rail about this sort of thing in dissent (joined only by Justice Thomas).

And let me flag this new post by Patterico, which shows that Glenn Greenwald was wrong when he asserted that only the dissenting judge in the 6th Circuit case had anything to say about the substantive merits of the plaintiffs' claims. In fact, Judge Batchelder wrote that the plaintiffs failed to state a claim under Title III and FISA. As quoted by Patterico (who adds emphasis):

It is undisputed that the NSA intercepts international, rather than domestic, communications, so . . . Title III does not apply. Moreover, because the plaintiffs have not shown, and cannot show, that the NSA engages in activities satisfying the statutory definition of “electronic surveillance,” the plaintiffs cannot demonstrate that FISA does apply.

Patterico is right, but I'm not impressed by the way Batchelder disposed of these two claims on the merits. With respect to the plaintiffs' constitutional claims, she said that the plaintiffs' lacked standing. But the same lack of standing would apply to the statutory claims and should have precluded her from reaching the merits. And Batchelder ought to have wanted to coordinate with Gibbons on a single opinion. It looks rather obvious to me that Batchelder wanted to have it both ways and be strict about standing and still talk about the merits. That doesn't add up. And Gibbons did well to refuse to join it.

I can't stand Greenwald's posturing about how all the judges who have reached the merits have found the program illegal. It's not surprising that the judges who are lax about standing also lean toward restricting the President's power in national security. These are both liberal positions. The judges who stop at the level of standing are the judges who would be most likely to find the program legal. So Glenn's point doesn't impress me. Patterico shows that Glenn is wrong. But ironically, Batchelder would look a whole lot better if Glenn were right.

That power-grabbing President.

I love this collection of newspaper cartoons from 1937, portraying Franklin Roosevelt's aggressive view of executive power. (via Instapundit.)



This web-resource would be SO much better if you could get a separate address for the cartoon. Unfortunately, the graphically uninteresting block of explanatory text comes along with the vivid image.

Let's Google for a more workable source of FDR cartoons. How about this? Here's a favorite (which I especially enjoy after spending the first week of classes teaching Marbury v. Madison in two different classes, to 1Ls and to 2- and 3Ls):

"How can law both benefit from, and constrain, a power that is fundamentally lawless?"

Yale Law Journal has a new symposium issue on executive power. (The quote above is from the introduction (PDF). ) I don't have the time right now to scan the articles and say anything more, but feel free to do that in the comments.

The Supreme Court turns Padilla away.

Gina Holland reports:

"In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again," Kennedy wrote... "That concern, however, can be addressed if the necessity arises."

Deborah Pearlstein, director of law and national security at Human Rights First, said: "This is a warning shot for the administration. It would be hard for the administration not to see it that way."

Pearlstein said the court may have given away the outcome of a second case arising from its strategy in the war on terror. Justices heard arguments last week in an appeal by a foreign terrorist suspect facing a military commission on war crimes charges at Guantanamo Bay, Cuba. Justices seemed skeptical of the government's arguments.

I'd like to see some more explanation of Pearlstein's theory. Is it just based on last week's argument, or is it an inference from today's vote? If the latter, I don't see it. Three justices wanted to hear the case: Souter, Ginsburg and Breyer. Stevens could have provided the fourth vote needed to grant certiorari, but he joined the Kennedy opinion. Gina Holland called that a "surprising... unusual alliance." Isn't the simplest explanation that Stevens is predicting what the Court would do with Padilla's case, perhaps based on what he already knows about the outcome of the Guantanamo case (Hamdan)?

Some commentary:

Orin Kerr: "Some will try to look for significant signs in the fact that both Stevens and Chief Justice Roberts joined Kennedy’s opinion, but I don’t know if that is justified."

Steve Vladek: "Justice Stevens?? It was his dissenting opinion two years ago that concluded that Padilla's case implicated 'nothing less than the essence of a free society.'"

Marty Lederman: "[E]vidently Justice Kennedy was not prepared to give either side of the Court the necessary assurance of his views on the merits; this might explain, for example, Justice Stevens's decision not to provide the fourth vote..."

Tung Yin delves into the technical question of whether the case is moot, because Padilla originally asked to be brought to trial and the government has proceeded to do exactly that.

I agree with Justice Ginsburg that the case falls within the "voluntary cessation" exception to the mootness doctrine. The exception is designed to prevent a party from creating mootness by changing its behavior, when it would be able to return to its old ways after it has extricated itself from the litigation. But the question in Padilla was whether to grant cert, and the Court has discretion.

As Kennedy writes: "Whatever the ultimate merits of the parties' mootness arguments, there are strong prudential considerations disfavoring the exercise of the Court's certiorari power." That is, we don't need to say whether we could hear the case if we wanted to, because we don't want to.

Under the circumstances in this case, the government is unlikely to go back to its old behavior. Kennedy makes a point at the end of saying that the courts will be monitoring the government and should act quickly if Padilla's status is changed again.

But why isn't he interested in judicial review of the government's treatment of Padilla in the past?

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.

This is the standard reason judges give for requiring a real controversy. It's what you say after you've decided to avoid the case when you've got discretion to hear it. Compare Ginsburg's opinion:

This case, here for the second time, raises a question "of profound importance to the Nation," Rumsfeld v. Padilla, 542 U.S. 426, 455 (2004) (STEVENS, J., dissenting): Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an "enemy combatant"? It is a question the Court heard, and should have decided, two years ago. Ibid. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

So take your pick: It's a very important question, so we should answer it; or it's a very important question, so we shouldn't answer it.

The argument in Hamdan.

SCOTUSblog describes today's oral argument in the Hamdan case:

For the most part, the session was subdued and understated, especially given the historic dimensions of the dispute before the Court -- a major test of Executive power in the midst of vigorous presidential responses to a proclaimed "war on terrorism." But there was definitely an emotional high point, and that came when Breyer, then Souter, focused on the law that Congress passed late last year that threatened to scuttle the Hamdan case, and all other pending court cases filed by foreign nationals now being detained at Guantanamo Bay, Cuba. That law, the Detainee Treatment Act, is a court-stripping measure that raises serious questions about whether President Bush's orders dealing with captured foreign detainees will ever be fully tested in court.

Much more at the link.

Here's Gina Holland's description of the argument (for AP):

Justice Anthony M. Kennedy questioned Solicitor General Paul Clement about the legal safeguards for the trials. Justice Stephen Breyer also asked what would stop the president from holding the same type of trial in Toledo, Ohio, not just at the military prison in Guantanamo Bay, Cuba.

Hamdan claims the military commissions established by the Pentagon on Bush's orders are flawed because they violate basic military justice protections.

"This is a military commission that is literally unburdened by the laws, Constitution and treaties of the United States," [Hamdan's lawyer, Neal] Katyal told justices.

UPDATE: Here's Linda Greenhouse:

Justice Souter interrupted [Solicitor General Paul Clement]. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied: "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States —"

"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some case and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

Polls on Alito.

CNN reports:

Support for Alito's confirmation grew after widely televised confirmation hearings, the poll found. Before the Senate Judiciary Committee hearings, held January 11-13, 49 percent of respondents backed his nomination. In the poll released Monday, 54 percent expressed support.

The percentage of people who opposed his confirmation remained unchanged [at 30 percent] after the hearings, Monday's poll found.

That says a lot about the quality of the Democratic Senators' presentation at the hearings. They were not able to gain one percentage point of opposition. You'd think that many people would, without giving it much thought, support a President's nominee initially. The 49 percent figure going into the hearing may show that. But the hearings should have eroded that high level of support at least a bit, and surely, some of the 21 percent undecided should have taken the negative position. Yet the hearings won Alito 5 additional points.

Clearly, the Democrats' strategy was poor. But exactly why was it so poor? I've said before that I think it's a mistake to portray judicial decisionmaking as a political enterprise, which is what they did, leaving Alito to prevail by doggedly explaining legal doctrine in response to every attempt at an attack. I think people want the Court to decide cases based on the law and want to believe a judge can do that. If so, the Democrats' attack on Alito would look ugly and offensive.

But it may be that a lot of people really do think the Court is political. If so, the Democrats have an entirely other reason to worry. It would mean that people want the Court to take the political positions the Democratic Senators assumed we would be outraged by. It's hard to say which issues would be most influential, but I note that the Senators tried very hard to frighten Americans about strong presidential power.

The top Democrat on the Senate Judiciary Committee said last week he believed Alito would fail to check what he views as the president's inappropriate expansion of executive power.

"I'm not going to lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy," Sen. Patrick Leahy of Vermont said Thursday.

Perhaps most Americans disagree.