Market Failures, Policy Officers, and Chevron – a Toolkit for the Unitary Executive

Much to the relief of administrative law jocks everywhere (to borrow a Dorfian phrase) word finally got out about the Bush administration’s latest attempt to maximize their executive power in the face of a diminished influence in Congress. The NY Times reported on Tuesday that President Bush has amended Executive Order 12866 to “give the White House much greater control over the rules and policy statements that the government develops to protect public health, safety, the environment, civil rights and privacy.”

Executive Order 12866 (EO) deals with the administration’s policy for an efficient regulatory system. To lay out the history a bit, Executive Order 12866 was issued by Clinton in October of 1993 to replace Regan’s executive orders 12291 and 12498. The order set out the Clinton administration’s idea of how regulatory principles and policies should be implemented. Clinton’s 12866 required that agencies issue regulations in three circumstances: 1. when “required by law," 2. when "necessary to interpret the law," and 3. when "made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people."

The Bush Administration has essentially eviscerated reasons one and two by setting out a new first principle that requires agencies to issue regulations only when they have “in writing” identified a “specific market failure” that “warrants new agency action.”

In case the agency was unsure of how the Bush administration defines market failure, (There is no definition in the EO other than a brief listing of examples – “externalities, market power, [and] lack of information”) they can easily ask their brand new, politically appointed Regulatory Policy Officer or, more colloquially, their RPO. The amendments to the EO require all agencies to “designate one of the agency's Presidential Appointees to be its Regulatory Policy Officer.” This Regulatory Policy Officer (RPO) will then ensure the agency’s compliance with requirements for issuing “significant guidance documents.” [i.e., anything the agency puts out]

To make sure we don’t underestimate the powers of the RPO let’s take a peek at how the EO defines “significant guidance document.”

A guidance document is one that is reasonably anticipated to:
(A) Lead to an annual effect of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(B) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(C) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof; or
(D) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order”

Well, we wouldn’t want the RPO to feel useless I suppose. In case you were worried that there was not a check on the RPO’s omnipotence, never fear – he or she is, of course, removable by the President and, if the agency head happens to disagree well, I’m sure he or she can say so.

In addition to giving the regulatory state it’s very own “big brother,” the Bush administration has also told agencies that they may not impose not impose new legal obligations on anyone and the may not use mandatory language such as ‘shall,’ ‘must,’ ‘required’ or ‘requirement’ in their regulations. Interesting to see what a new regulation will look like. Something akin to, “The entity must may demonstrate that they have not exceeded the required suggested level of radioactive waste disposal in the required suggested time period of 2 years however many years you’d like.” Sounds like a truly effective and enforceable regulatory state.

An interesting question regarding the market failure threshold has to be, how much regulation do we really think we’ll see? Don’t get me wrong, I know that’s the point. I get that this EO was aimed at the EPA and other agencies with whose very existence the Bush Administration takes issue. However, the EO provides no further delineation of “market failure” other than to list examples. It is certainly within the realm of possibility to think that the EPA will now be unable to regulate very much. If we couldn’t use Chevron to get the agency to interpret it’s own way out of organic statutory requirements, we can now get the RPO to do it.

Taking just a couple of leading administrative law cases at their word leads me to think that this type of end run around the checks and balances and separation of powers is wrong. In Clinton v. City of New York, the Supreme Court held that the President could not constitutionally cancel certain portions of a bill he had signed into law. Though this case dealt with the President’s explicit veto of a specific part of a bill, to what extent is Bush’s recent EO any different? Certainly the veto is being exercised through an executive appointee, but I doubt that the Clinton court would have come out differently if the President had merely appointed someone to pick out the parts of the Congressional budget of which he disapproved. A regulatory state entirely subject to executive control, even to the point of eviscerating the agency’s individual organic statutes, is an unconstitutional scheme that violates the basic tenets of separation of powers. Everyone concedes that the President, as the Executive, can guide the policy of agencies, what the EO does however, is allow the President the ability to countermand Congressional directive. Congress says we need an EPA, the President says we need an EPA only where the market can’t do the job Congress wants the EPA to do.

Let’s also take a look at INS v. Chadha for a minute. There the Supreme Court held that Congress could not retain it’s own legislative veto over power it had imbued in the executive through the office of the Attorney General. It was considered to be an attempt at Congressional aggrandizement of power. If a Regulatory Policy Officer is not the exact same attempt at aggrandizement, this time by the executive, I’m not sure what is. An RPO is like having a mini-President, or Karl Rove if you will, sitting in on every agency decision. We know from Chevron and other cases that the unchecked agency exercise of legislative power is premised upon agency expertise. As a political appointee, what will the RPO add to that expertise? Is George Bush going to suggest a seasoned environmental scientist become the RPO of the EPA? Doubtful.

One other quick Chevron thought, if an agency is given deference for their decisions of interpretation regarding their own statutes through regulation and guidance documents, what role has the RPO played in that interpretation, and to whom is the court now giving deference? It would seem that deference now goes to the specific policy decisions of the executive, and to the market and its sage ability of achieving legislative goals.

If you can agree with Eric Posner that the cost-benefit analysis requirement of Clinton’s EO 12866 was a tool by which the executive retained control over regulation and not an efficiency management mechanism, then you will not be able to deny that the “market failure” analysis of Bush’s EO 12866 is simply a pure power grab. Heck, even if you don’t agree with the Posner-of-lesser-fame, it’s still pretty hard to deny.

Moot Court: The Bush Administration's Non-Litigation Strategy

The Bush administration has made a habit of pushing the boundaries of the law and then retreating slightly before meaningful legal challenges to its actions can be mounted. Most recently, the administration announced that it has submitted the controversial NSA domestic surveillance program to the jurisdiction of the FISA court. The announcement was made, coincidentally, the day before Attorney General Gonzales was due to testify before the Senate Judiciary Committee. Another notable example of this practice was the abrupt change in the government’s case against Jose Padilla—in 2005, he went from enemy combatant to garden-variety criminal defendant as the Supreme Court was considering whether to hear a challenge to the legality of his detention. A 2002 article by L.A. Times reporter David Savage examines a less high-profile example. Rounding up and detaining Muslim immigrants in the wake of 9/11, “[t]he government’s basic strategy: If an arrest is challenged, the detainee is simply deported.”

So the Bush administration is the legal equivalent of the kid who sweeps the chessboard off the table when you capture his queen—if we can’t finish the game, then I didn’t lose. In the current issue of Vanity Fair, editor Graydon Carter reveals that the President is actually famous among his friends for tactics like this. Apparently the young W. had a wily strategy when his golf game went awry at his mother’s Houston country club: he would just shout expletives until Barbara sent him to wait in the car. I assume he didn’t regularly make it to the 18^th hole. If you beat the President in one game, you can bet you're going best two out of three, three for five, or whatever it takes.

This gives us an interesting glimpse of the way our President’s psychology affects public policy (cf. Oedipus/Iraq). But the emergent pattern of avoiding meaningful judicial review suggests a more-or-less comprehensive strategy, rather than simply a childish aversion to losing. Slate’s Dahlia Lithwick has recently argued that many of the administration’s legal maneuvers have been aimed primarily at expanding executive power for its own sake. Nina Totenberg of NPR reports that the real reason the administration kept Padilla’s case out of the Supreme Court was that “key players in the Defense Department and in Vice President Cheney's office insisted that the power to detain Americans as enemy combatants had to be preserved.”

What we are seeing, then, is a distinct strategy with distinct goals. And it is problematic for at least two reasons. First, the non-litigation strategy obfuscates legal and political issues in the public eye. For example, the L.A. Times headline on the NSA wiretap story was “U.S. ceases warrantless spy operation.” Whether that statement is technically accurate is debatable; that it fails to capture the import of the administration’s maneuver is not. By avoiding litigation, the administration also avoids substantial fact-finding and virtually any obligation to tell the truth. Say what you will about judicial deference to executive power, but the national media is a softer forum than any federal court.

Second, the non-litigation strategy may actually have legal effects. By taking two steps forward and one step back, the administration doesn’t set any favorable legal precedent for itself, but it also avoids unfavorable precedent. Make no mistake--despite submitting the NSA program to the FISA court, the administration can maintain that it was good and legal all along. And by continuing questionable practices just under the legal radar, the administration may generate a patina of legitimacy—the quasi-legal justification of established practice. A court may be more deferential in reviewing an “established” policy than it would in hearing a fresh controversy.

The Bush administration defines a win as anything that is not a clear loss. In the legal realm this means that the administration believes its claims to power are justified so long as they are not definitively repudiated in court—and that can’t happen if they just keep the issue out of the courtroom. We also see the results of this idiosyncratic definition of victory in our Iraq policy, but that’s a subject for another day.

So I’m calling shenanigans on Team Bush. I say it’s time to lawyer up and see who is right about executive power, civil liberties, maybe even basic diction (would a court enjoin the use of the non-word “nucular”?) Ultimately, what’s at stake is not only the legality of specific policies, but the structure of legal discourse. Justification matters, and Fox News doesn’t provide an adequate forum for the sort of inquiry that the American tradition demands. Maybe I’m naïve, but it seems to me that if you can’t convince a court that what you’re doing is legal, then maybe you shouldn’t be doing it. And seriously, if you can’t win in the Roberts court, maybe it’s time to hang it up.

In Defense of the Second Amendment

The Second Amendment is a lot like the Ten Commandments. Often invoked, but rarely read.

Do you know anyone who can actually quote the Ten Commandments? Stephen Colbert exposed how not a few proponents of the Commandments can barely name three of them. To avoid a similarly embarrassing incident, I'll quote the 2nd Amendment in full: "A well regulated Militia, being necessary to the security of a free State, the right of the people to and bear Arms, shall not be infringed."

If I were an academic (or a Federalist), I would endlessly parse those 26 words. The big debate has been whether the 2nd Amendment grants a collective or an individual right. Essentially, this boils down to one question: Do we emphasize the first half or the second half of the 2nd Amendment? I don't really care about the answer, but, if you're of the nerdy bent, read Prof. Dorf's take. Or, read the entire symposium dedicated to the topic.

Instead, I would like to focus on what's good policy: I want to convince you that Congress should keep its tentacles off gun control -- regardless of what Constitution allows. A national ban on handguns has been a dream of liberals worldwide for at least a decade. Not only is this bad politics, it's bad policy. With a handful of exceptions, we should declare a Congressional cease fire in the federal regulation of guns.

This ultimatum may sound like it applies only to Brady Bill Democrats, but it applies equally to Republicans, who've shown themselves all too willing to exploit the 2nd Amendment for cheap political points -- all the while trampling on our beloved federalism. Stunningly, the "Do Nothing" 108th Congress attempted to repeal all DC guns laws -- even the one that criminalized possession of unregistered guns. Republicans should stop appeasing their NRA donors and heed their own "states' rights" ideology. Meddling in DC's right to regulate itself (on the gun question and everything else) is just as bad as foisting NYC's gun laws on Wyoming.

So, what's so wrong with more federal gun laws? One word: federalism. I know, I know, this is ACS, and progressives are generally in favor of the Interstate Commerce Clause's virtually unlimited expansion of Congressional authority. But, just because Congress can regulate pretty much anything, doesn't mean that it should.

1.) One Size Does Not Fit All States
Nations of our size (e.g. Australia, Canada, Russia) have favored a federal form of government -- because it's really hard to craft policies that suit an entire continent.

That said, there are plenty of good reasons for national laws. For one, they facilitate planning. Getting to JFK via public transit would not be such a mess if one government authority had built a regional transit solution -- instead of the fragmented mess that we have. National laws also bring uniformity, which facilitates banking and other business enterprises. Another good reason is negative externalities -- particularly pollution. Raw sewage defies borders. It flows downstream (or blows westward). Unilateral action by one state will only ensure that they're on the receiving end of all the sewage. As a result, pollution is one of those problems that requires national environmental laws (with teeth, preferably).

But, none of these reasons justify additional national gun laws. Our current federal framework is pretty sensible: you can buy a rifle or shotgun at 18 -- but must wait until 21 to buy a handgun; felons cannot buy guns; all guns must be registered; sales of multiple handguns require ATF notification. Federal laws already prohibit gun trafficking. Beyond this foundation, each state should be free to restrict or expand rights as they see fit.

Unless stolen, guns do not travel with the wind injuring third parties. Sure, guns can cause harm: they are used as a tool in suicide, accidental shootings, domestic violence, and countless crimes of greed. But, these harms generally cluster in the state in which they are used -- and should be addressed there, not in Congress.

2.) Fairness
Why should South Dakotans be punished for the sins of New York City? Guns are huge problem throughout urban America. But, all the maladies seen here in NYC have not infected states like Wyoming, Alaska, Wyoming, Montana, etc. Because of the ubiquity of hunting, accidental deaths are low in most rural states -- except when Dick Cheney is around. Crime is also low. Suicide rates are no higher than in urban America (and probably are lower). In fact, the use of guns in domestic violence is the only good argument for additional gun regulations in places like South Dakota -- and, there are better ways of reducing domestic violence than emptying the gun cabinet.

3.) Guns as the Whipping Boy of the Left
Every week, there seems to be a new workplace or school shooting. No other industrialized nation is plagued by our epidemic of violence. It's appalling that we are the model for the world, our social fabric is in tatters. So, what do we do about this spiral of violence? It's really easy to blame guns. In my home state of Wisconsin, a hunter went berserk (mid-hunt) and shot several other men out hunting in the same forest. These kind of attrocities simply did not happen 50 years ago -- despite children's ready access to guns in rural America.

Furthermore, when rifles and shotguns are the tool of choice for these acts of suicide-by-cops-and-teachers, it's intellectual laziness to blame the NRA. One can't seriously advocate limiting hunters' access to shotguns. At least, one can't if you've ever lived in Wisconsin or South Dakota.

The NRA is hardly a servant of the people, but I can't help but agree that it's people that kill people -- not guns. National gun laws will do nothing to kill the social rot evident in the countless school and workplace shootings. Maybe...instead, we should do something about all the people bowling alone? Or, about people watching Bill O'Reilly? Here's my bet: increased social competition, stress in the workplace, urbanization, rapid growth, and the destruction of our social safety net have prompted our violence crisis.

4) The State Solution: Experimentation
Why not exploit one of the prime virtues of our federal system, experimentation, to find the best policy? In states that do have serious gun problems, legislatures should be free to add as many restrictions as they like -- leaving the remaining states to grant conceal-and-carry licenses and other means to expand gun rights. If guns are truly such a social plague, then largely rural states will eventually start restricting gun rights. Until then, leave them be.

Further federal encroachment on the 2nd Amendment is contrary to fairness, federalism, and freedom -- and therefore contrary to the mission of ACS.

Post-Abortion Syndrome- An Epidemiological and Political Lie

Last week's New York Times Magazine featured a cover story about anti-choice organizations that are working to dissuade women from having abortions, largely based on the existence of a "post-abortion syndrome"- that women who have abortions suffer from enormous depression and/or some source of post-traumatic stress disorder as a direct result of the abortion.

This is a remarkably stupid idea for a number of reasons, perhaps the largest being that, as the article discusses, "the scientific evidence strongly shows that abortion does not increase the risk of depression, drug abuse or any other psychological problem any more than having an unwanted pregnancy or giving birth." As a matter of science, actually, there is pretty much no way that one could show that an aborted pregnancy causes anything different from any other unintended pregnancy.

Without explaining much about epidemiology, there are three related principles that would make such a finding impossible:

1) No control — It's impossible to have a "control" group- Women who are in the exact same circumstances except one group has an abortion, and one group does not. The choices that lead some women to terminate pregnancies, some to put their children up for adoption, and some to raise a child are inherently personal and individualized. But factors that lead to those different outcomes may affect what kinds of psychological outcomes women have. For example, if a pregnancy is the product of rape, the woman may not want to carry the pregnancy to term. If she is depressed after the abortion, is it because of the rape or the abortion?

2) Confounders — If women who have abortions are having high rates of depression, there may be a confounder at play. A confounder is the unknown or unobserved factor that actually brings about an outcome, even though another exposure may nonetheless seem correlated. For example, a study of 10000 people who drink alcohol regularly might find higher rates of lung cancer than in the general populations. So many people might thus conclude that alcohol leads to higher cancer rates. The confounder in such a circumstance would likely be cigarette smoking. Cigarette smoking is independently correlated with drinking, and is the real cause of the lung cancer.

In this case, many of the circumstances that may lead a woman to terminate her pregnancy may be confounders. The article's main interviewee, now a "minister" trying to save women from the health effects of abortion is a prime example. She was sexually abused by a stepbrother and raped at age 14, and then her father died a grotesque death. Anyone of these events would have put her at a higher risk of unintended pregnancy, and abortion, and any one of these events may have also been the cause of her ensuing depression and drug addiction.

3) Mislabeled variables — What are we measuring here? The impact of an abortion on a woman's mental health? Or the impact of an unintended pregnancy? I don't think anyone will argue that unintended pregnancies are happy things that most women just "smile and move on" from. Is it the abortion itself that leads to depression? Or just having a pregnancy that doesn't end in raising a child?

Finally, in a legal/political sense, this argument is inauthentic at best. As Reva Siegel points out in the article, thw thing that these ministers are seeking to "save" women from are not the health effects, but the religious condemnation. If these ministries were really trying to protect the health of women, they'd support options for contraception being widely available, state-provided comprehensive mental health care, etc.

If sexual politics is really about the health of those involved, then that's a clear reason why sodomy laws are properly unconstitutional, and LGBT individuals should be encouraged to come out without fear of "reparative therapy." After all, the repression of homosexuality or trans-identity leads to far greater negative health outcomes than living openly. Gay marriage should be legal, because then the positive psychosocial health benefits or marriage would be available to all. There's a certain dishonesty about this health argument, beyond the scientific inaccuracy, which apparently C. Everett Koop, Reagan's Surgeon General, recognized when refusing to issue a report on "Post-Abortion Syndrome." If you're going to make this about health, anti-choice advocates are going to lose.

I agree with President Clinton's oft-mocked/repeated expression that abortions should be safe, legal, and rare- but not because of any health effects abortions have, but because being in the situation of having to make that situation is inherently unhealthy itself.

A Toast to the American Constitution Society, the Federalist Society, and the Agreed-upon Constitution

By popular demand, here's the toast from the Columbia Law School's ConLaw Mixer, held on January 23, 2007. The event was jointly hosted by the local chapters of the American Constitution Society, the Federalist Society, and the Constitution Law faculty here at Columbia.

When ACS President Jon Sherman asked me to say a few words for this event, I initially thought I’d focus on the differences in how the American Constitution Society and the Federalist Society approach the Constitution.

I mean, every ACS member knows that the members of the Federalist Society look longingly at the days before pasteurization — that they fancy themselves as yeoman farmers on the New Jersey frontier where they dream of a world in which interchangeable parts will someday be a reality.

Similarly, every FedSoc member knows that when the members of the American Constitution Society hear someone talking about "penumbras formed by emanations," they promptly instruct the bartender that they’ll have what that guy’s having.

. . . but these differences are minor. Today, let’s celebrate the similarities — of which there are many. I’ve spent the past couple days pouring over this document, locating areas of significant agreement. I’ve found three areas of broad agreement about the Constitution. Interpretations upon which we can all agree, areas that we can all toast.


AREA #1: We agree on the many of the powers assigned either to the states or the various branches of our federal government.

What does this mean?

For the States, we shall not rest until states stop granting Letters of Marque and Reprisal and until they stop granting Titles of Nobility. We insist they settle their past debts using gold or silver.

For the Congress, we demand that it not shirk its duty to establish post Roads, to erect needful Buildings in D.C., and — as stated in Article 1, Section 5, clause 2 and reiterated the 20^th Amendment — that it meet at least once every year.

For the Judiciary, we insist it remain vigilant to the needs of justice, that it insure no Attainder of Treason work Corruption of Blood, and that no one shall not be convicted of Treason without a rigorous trial consisting of at least 2 witness presenting evidence against her.

Most importantly, we ask that the judiciary fully enforce the 11^th Amendment, whether that amendment actually means what it says . . . or whether actually every word of that amendment means the exact opposite of what it appears to mean.

Finally, concerning scope and appropriate exercise of Executive power, we… you know what, let’s just move on to Area #2.


AREA #2: I know I speak for everyone in this room when I say we supports the passage of the original 1^st Amendment — the Congressional Apportionment Amendment.

As many of you know, on September 25, 1789 the 1^st Congress introduced 12 — not 10 — amendments to the states as the Bill of Rights.

The original 2nd Amendment — barring Congress from granting itself immediately effective pay raises — became the 27^th Amendment on May 20, 1992. However, the original 1^st Amendment was only ratified by 11 states — 2 shy of passage at the time. Since Coleman v. Miller makes clear that all amendments are considered pending before the state indefinitely unless Congress establishes a deadline within which the states must act, only 27 states are now needed to ratify this amendment for its passage. Hey 27 states, pass the original 1^st Amendment.

If passed, the Congressional Apportionment Amendment would establish guidelines for the size of the House of Representatives. The Amendment’s math is a little hazy, but it ends with this important instruction: "there shall not be . . . more than one Representative for every 50,000 persons."

With a present US population of more than 300 million people, this introduces the possibility of a 6,000-member House of Representatives. I know I speak for everyone here when I say that if there’s one thing that the august body of the House needs to be truly effective, it’s to have 5,565 members added to its ranks.


In closing, Area #3 is really a pledge:

AREA #3: We pledge from this day forth that we shall write like the authors of our Constitution.

Not only shall we employ capitalization seemingly at random and use either British, tortured, or inconsistent spelling whenever possible, but — like the Constitution’s signatories — we shall sign our name to documents using absurd abbreviations.

I mean, why grace the document with your full name — it’s only a Constitution? These people, these founders, signed the Constitution with all the formality of someone signing a traffic ticket. William Blount went with the predictable "Wm." but William Livingston chose the path of a hipster, abbreviating "Wil:" Jonathan Dayton became "Jona:" Robert Morris became "Robt." . . . and anyone who has studied with Professor Hamburger will know who I’m talking about when I tell you that one of them merely signed "Gouv."

5 of the signatories determined that their signatures constituted little micro-sentences, worthy of ending with a period. We, too, shall end our signatures with periods. From this day forward, if you see a document signed "And: Brad:." know that it is me.


As you can see folks, our points of agreement are broad and substantial. So here’s to our agreements and our differences, here’s to our faculty and our constitutional societies, and here’s to the wig-and-tight-pants-wearing founders who made it all possible. Cheers!

ACS & FedSoc: United in Discussion

On December 5^th of last year, a conversation took place between two men who have come to embody the philosophical tenets of the American Constitution Society and Federalist Society. Antonin Scalia and Stephen Breyer were joined by both of those organizations in a discussion of the Constitution. The moderator posed an initial query: does a judge “do justice” or “apply the law?" Neither gave a straight answer.

There responses ranged for the entire 90 minute session. They spoke of the multifaceted and incalculable repercussions of the decisions made by the Supreme Court. They both emphasized something oft troubling to law students: policy and particular justice are not always congruent.

From that tension, inherent in the adjudication of law, springs the necessity for both the Federalist Society and the American Constitution Society.

The mantra of the Federalist Society is that “the province and duty of the judiciary [is] to say what the law is, not what it should be.” It reminds jurists and attorneys that the strength and integrity of our judicial system stems from the democratic origins of the laws it applies. Judicial humility and restraint respect this truth.

The ACS draws the legal profession in another direction. It seeks to “ensure that fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice enjoy their rightful, central place in American law.” This mission bespeaks another undeniable and essential characteristic of American Courts: they are respected insomuch as they satisfy the human thirst for justice.

And so justice is left to balance, as represented by the pervasive imagery of the scales, not merely the competing interests of the present parties, but to balance further equity in the instant with the weight of precedent. While any system administered by people is hampered by our own imperfections and subjectivity, it is the responsibility of the ACS and FedSoc to perpetually zero the scales of justice, ever tweaking the balance to ensure that, from a broad perspective, justice is done.

While we often find ourselves on the receiving end of one another’s diatribes, ACS and FedSoc are really engaged in a common enterprise. The intellectual and professional tension fueled by deeply differing philosophical emphases holds the entire legal community upright as wires on a suspension bridge.

With that amiable stance in mind, the Federalist Society and American Constitution Society Columbia Law School chapters embark upon a semester of high spirited and high minded debate. Through cross-links on our organizations’ blogs, an ongoing discussion will unfold among students at CLS and any interested in contributing. The media representatives from both groups will attempt to kindle debate, though we intend the conversation to be organically driven by the ideas shared online.

Our chosen profession is defined by argument: civil, reasoned, and inspired. We expect nothing less.

Update (1/25): Rick Schwartz has posted an introduction to the dialogue on Ex Post (the CLS FedSoc Blog):

ACS v. FedSoc
Yesterday, the Federalist Society's left-leaning counterpart, the American Constitutional Society, announced on its blog the beginning of some collaborative debate and discussion between FedSoc and ACS members. Realizing the problems of collective participation (not to mention Borking), ACS members acquiesced and admitted that competition might be a better engine of intellectual growth than the previous system of coercion, dubbed "voluntary participation."
Let me simply close, by pointing out that my ideas do NOT stand for all of the Federalist Society's members. I say so in order to emphasize that this enterprise is intended to promote a free market of ideas where individual ideas are emphasized over any imagined duty to remain consistent with one's party affiliation. Of course, this indirectly coincides with one of the core beliefs associated with the Federalist Society: the idea that competition brings out the best results in the participants. Hopefully this friendly competition will inspire some good, civil discussion, as a reason to think critically and practice your advocacy in an open environment. So, members of FedSoc and ACS, you now have your chance to share the pearls of your keen Ivy-league intellects, and earn your side some fleeting internet glory (and if you're actually worried about the paper trail, that's fixable).

Soccer, Xenophobia, and the Constitution

Apparently, a small town in Georgia has banned soccer from the town athletic fields. According to an article in Sunday’s New York Times, the town's mayor has stated, “There will be nothing but baseball and football down there as long as I am mayor…Those fields weren’t made for soccer.” Now, theoretically, the idea that the fields are incompatible for soccer use could be a valid reason for such a ban. But in Clarkston, Georgia, the real reason is xenophobia.

This case actually reminds me a lot of Romer v. Evans, or Cleburne Living Center. For those who haven’t taken ConLaw yet, in Romer, the Supreme Court struck down an amendment to the Colorado Constitution that banned any sexual orientation anti-discrimination law under rational basis equal protection scrutiny, saying that the law represented nothing but naked animus. In Cleburne, the Court struck down a city’s refusal to allow a group home for those with developmental disabilities, though it would allow any of a number of other kinds of equally “disruptive” uses of the property, on similar grounds. While certainly the loss of ability to play soccer on a specific field seems trivial, in Clarkston, this is part of a larger ill-will towards the increasing refugee, non-white population in the community. There is nothing driving the mayor’s actions but naked animus. A town has no rational reason to allow a field to be used for baseball and football and not for soccer, particularly when there has been no problem in its use for soccer in the past. Further, the town isn't simply stopping a subsidy of soccer-playing to benefit other sports, but just not allowing soccer to be played. There doesn't seem to be any issue that this field is so busy that soccer playing is keeping American footballers on the sidelines. The issue is simply that, according to the town, Soccer is not an “American” sport, as the Mayor makes clear by referring to “the soccer people,” as if they were of a different species. I doubt that anyone’s going to take this case on, as the town can likely allege a pretextual “regulatory” purpose for disallowing soccer.

Luckily, the team’s coach suggests she will pursue other spaces to play. What’s particularly sad, though, is that the soccer team in question seems to be one of the most positive youth development programs for refugees in America that I have ever heard about. The team includes Iraqi, Liberian, Sudanese, and Kosovar youth, amongst others. These kids have gone through an inordinate amount of pain and struggle in their young lives, and now Mayor Swaney has decided to take away a source of joy and positivity in their lives because of his own prejudices and irrational fears. Ironically, that seems quite un-American- much less so than soccer.

Chilling Representation

Last week, the deputy assistant secretary of state for detainee affairs condemned specific law firms for their pro bono representation of detainees at Guantánamo. Speaking in an interview with Federal News Radio, Charles Stimson suggested that such firms’ corporate clients should pressure the firms to “choose between representing terrorists or representing reputable firms.” Though a Pentagon spokesman stated on Saturday that Stimson's comments “do not represent the views of the Department of Defense or the thinking of its leadership,” and Stimson yesterday issued an apology, his statement nonetheless has a chilling effect on pro bono representation and freedom of association.

In today’s complex legal world, access to justice depends heavily upon legal assistance. And yet for certain individuals, legal assistance is difficult to secure. For detainees in Guantánamo, counsel is not provided (as it would be to criminal defendants), and the obstacles to obtaining counsel are myriad: language, distance, political unpopularity, and, perhaps most significantly, the military rules governing contact with detainees. Detainees cannot themselves retain counsel. Despite these obstacles, law firms have extended their services to these individuals on a pro bono basis. By denigrating the value of these services, Stimson does real damage to the norm of pro bono work. The Association of the Bar of the City of New York recognizes the importance of such work, citing “the fundamental ethical and professional obligation of all lawyers to render pro bono legal service…” I would expect that Stimson, as the recipient of a law degree from George Mason University Law School, would recognize it too.

Beyond the effects of his interview on law firms’ pro bono representation, Stimson’s remarks sounded a disturbing echo of McCarthyism, selecting and disclosing the names of law firms whose activities are politically inconvenient in an effort to blackball them into changing their behavior. Given that juror selection began this week in the trial of Scooter Libby, I would think that the administration might be more careful about disclosures intended to chill politically unpopular activities. Stimson’s interview, and the subsequent lack of retraction, indicates a senior administration official’s strategy of achieving political ends by chilling constitutionally protected behavior - a strategy that I (idealistically, perhaps) had hoped ended long ago.

Dr. King Was Here - "Beyond Vietnam"

Dr. Martin Luther King, Jr. delivered this speech nearly 40 years ago right here at Riverside Church. In addition to helping us remember a great man, maybe his words shed light on our own moment in history.

You can listen to or read it here.

Virginia Wasn't The Only Place That Wasn't For Lovers

It's easy to be hard on Virginia for having an anti-miscegenation statute in 1967.

It's easy to forget that it wasn't alone.


Source: Loving v. Virginia, 388 U.S. 1, 6 n.5 (1967).

The President's Address on Iraq 1/10/07

I’m disappointed at President Bush’s address on Iraq. But I guess that isn’t surprising. The President didn’t really say anything that we haven’t already heard. At first I was encouraged by how he began his address. The President acknowledged that the insurgents’ tactics have worked. He said that “the situation in Iraq is unacceptable” and that “the responsibility [for the situation] rests with me.” The President was also much clearer than he has been in the past about the challenges that lay ahead in Iraq. He acknowledged that the “new strategy will not bring an immediate end” to problems in Iraq, but that “over time things will change – this will take time.” He acknowledged that the year ahead will be bloody and violent. That is not good news, but at least the President is being honest with us. But that’s about where the encouragement ended.

I was surprised to hear him mention the Iraq Study Group because its recommendations were basically dismissed and the report was sidelined. Most of what the President discussed seemed to have more to do with what the Iraqi government is going to do and less about what the United States is going to do. Iraqis do need to take more responsibility for the violence in Iraq, but I’m not sure that the President gave us a clear picture of how things will change based on his planned surge of 20,000+ troops. How long with those extra troops stay in Iraq?

I also think I heard the President mention a timeline without acknowledging a timeline. The President said that the Iraqis will be primarily responsible for security in all provinces by November of this year. Does that mean that American troops will start withdrawing by then? Does that mean that American troops will not withdraw until November? It is unclear. It is also unclear what will happen if the Iraqis are not prepared to take over by November. Given the rate at which Iraqis have been trained in the past, it is not clear that November is viable. And then what? We don’t know because he didn’t tell us.

One of the recommendations from the Iraq Study Group [and numerous politicos and commentators] is that we should open up a dialogue with Iran and Syria. Unfortunately, the only mention of Iran and Syria in the President’s speech was to say what the United States would do to protect Iraq from insurgents coming from those two countries. That was a missed opportunity. Dialogue with Iran and Syria will not be easy. The two countries are hostile to the United States and American interests, but ignoring them will not make things better. It will make things worse.

The President also mentioned that he is forming a new bi-partisan working group. Why? The Iraq Study Group was a bi-partisan group, and it presented dozens of recommendations that have been virtually ignored. Is another group really necessary? What are they going to do? Will anybody listen to them this time?

The President said that “failure in Iraq would be a disaster for the United States.” He mentioned that Iraq could turn into a safe haven for terrorists, a refuge for extremists, and give Iran overwhelming influence in the Middle East. I make some of these same arguments in, “Do We Still Owe Iraq?,” a piece that will be published in ACS’s Harvard Law & Policy Review later this month. But as the violence in Iraq gets worse, as more Iraqis and Americans die, I am not sure that we still owe Iraq. What I am sure of is that the President owes the American people more than what he gave us in his address.