The Necessary and Improper Clause?

“Is it possible that most of us haven't noticed that the Supreme Court has just handed Congress broad authority to detain people merely because they show signs of future dangerousness?”
—Dahlia Lithwick, “Detention Slip: The Obama administration wants to hold terrorists. Did SCOTUS just give them a green light?” in Slate

The opinion Lithwick is discussing there is United States v. Comstock, a majority opinion by Justice Breyer, issued May 17. As Breyer explains at the outset, a federal civil-commitment statute, 18 U.S.C. § 4248, authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. And, although it would seem that the obvious constitutional issue would be whether this violates constitutional due process guarantees, the Court already decided that issue, it turns out, in two cases, Kansas v. Hendricks, a 1997 opinion that interpreted the Fourteenth Amendment’s due process clause in relation to a Kansas statute that allowed the state to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released, and Kansas v. Crane, a 2002 opinion that interpreted, well, Kansas v. Hendricks.

More about the two Kansas opinions later. For now, it is necessary and proper only to explain that Hendricks held that the Kansas statute did not violate the right to due process, and that Crane held that that statute did violate the right to due process clause because it did not contain a provision requiring the state to prove a volitional impairment as well as an emotional or personality disorder; without proof of volitional impairment, there was no indication that the person posed a continued danger—a prerequisite due-process justification for involuntary civil commitment. And that, since the federal statute does contain such a provision, and in any event since the Court was not asked in Comstock to decide the due process issue, the Court declined to address the constitutionality of the federal statute under due process jurisprudence and instead addressed it only under the Constitution’s Necessary and Proper Clause.

The lower federal court had held the statute unconstitutional solely on the ground that none of the Constitution’s “enumerated powers” accorded to the federal government enumerated the power to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released, and that the Constitution’s Necessary and Proper Clause was insufficiently broad to authorize this particular federal legislation. The Necessary and Proper Clause, Article I, section 8, clause 18, which grants Congress the authority to enact legislation as "necessary and proper for carrying into Execution" the powers "vested by" the "Constitution in the Government of the United States"—a.k.a., the “enumerated powers.” So Breyer’s opinion in Comstock decides only whether under the Necessary and Proper Clause, Congress has the authority to enact legislation authorizing the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released.

Seven of the justices—all but Thomas and Scalia—think it does, but only five of them, Breyer, Roberts, Stevens, Ginsburg and Sotomayor, think the Clause is so broad and elastic that Comstock is causing some commentators, Lithwick and many others, to worry that the Court might have just handed Congress broad authority to detain people merely because they show signs of future dangerousness. A justification that, as Lithwick notes in her article, would authorize the permanent detention of anyone held without trial as an “enemy combatant.” But while I understand the reason for that concern, I don’t really share it.

Instead, count me among those who, like (as Lithwick mentions) Los Angeles Times Supreme Court correspondent David Savage, view Comstock not as really about the “enemy combatant” issue but instead about an even higher-profile political issue: whether the Necessary and Proper Clause gives Congress the authority to enact legislation such as new federal health-insurance legislation, and not about “enemy combatant” detainees, And such as the imminent financial-sector-reform legislation. And such as the perhaps-eventual climate-change legislation. I think that, for all the justices except Roberts, Comstock was really about neo-federalism.

Neo-federalism is the conservative legal philosophy that holds (among other things) that the federal government’s two-pronged powers—the right to legislate and the right to require that state and local governments not infringe upon the constitutional rights of individuals—are limited to the constitutional rights and to legislation that comport with the conservative Republican political and ideological agenda of that party’s business, law-and-order, and culture-wars supporters, circa 1985.

Under this legal theory, the Constitution bars, for example, state or municipal legislation that circumscribes gun sales and gun possession. But the Constitution does not require states or municipalities to comply with constitutional rights that are not quite so popular among some faction of the Republican base.

Breyer, Stevens, Ginsberg and (I suspect) Sotomayor, like most liberals who have a law degree, loathe neo-federalism. And for these justices, Comstock was almost entirely about establishing precedent that will be invoked later to defeat neo-federalist arguments and uphold the health-insurance law and the other domestic-agenda legislation that are current subjects of such hot political and ideological debate. For these justices, Comstock was not a proxy for rulings on the rights of “enemy combatant” detainees. Or for the rights of criminal defendants generally.

But, as Lithwick and others note, that would not prevent the Court from using the opinion to hold in a later case that Congress broad authority to detain people—designated “enemy combatants” or anyone else—merely because they show signs of future dangerousness, if Comstock does hold, by dint of some very strange analysis (such as it is) in that opinion, that Congress has this carte blanche authority.

But I don’t think it does.

Lithwick and many other commentators focus on the section of the opinion in which Breyer justifies his view of the Necessary and Proper Clause as broad enough to permit the statute at issue if that statute does not violate some other constitutional provision. Congress, Breyer says, has the authority to create prisons, to ensure the safety of prisoners, and to provide mental-health care to prisoners. He then pronounces the power to hold someone beyond his sentence reasonably related to those other functions if the purpose is to protect the public.

“If,” Breyer says, "a federal prisoner is infected with a communicable disease that threatens others, surely it would be ‘necessary and proper’ for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others.” And if such confinement is "necessary and proper," then how could it not also be ‘necessary and proper’ to confine an individual whose mental illness threatens others to the same degree, he asks. Rhetorically.

He then says the statute at issue is "reasonably adapted" to Congress' power to act as a responsible federal custodian—“a power that rests, in turn, upon federal criminal statutes that legitimately seek to implement constitutionally enumerated authority.” Joseph Heller couldn’t have phrased it better. The statements are a series of non sequiturs and tautologies. The conflation of punitive authority with public health authority is nonsensical. The former authority cannot logically justify the latter authority, and the punitive custodial authority does not naturally morph into a public health authority once the punitive custodial authority has, by law, ended.

Breyer appears, upon first impression, to have adopted current Solicitor General and Supreme Court nominee Elena Kagan’s argument to the Court—at least in part. Kagan herself presented the oral argument in Comstock, and, as Lithwick mentions, Orin Kerr, of Volockh Conspiracy, has described her argument to the Court in Comstock as shockingly broad. Kerr is spot-on in that assessment. He said Kagan argued “that the Constitution gives the federal government the general power ‘to run a responsible criminal justice system,’ and that anything Congress plausibly thought a part of running a ‘responsible criminal justice system’ was within the scope of federal power.”

Coming from a United States solicitor general and a Supreme Court nominee, that indeed is shocking. But, the loopy analogies aside, I don’t think Breyer’s Comstock opinion actually holds this. We are not like the old Soviet Union; our Constitution has been thought to bar the criminal justice system from incarcerating people in prisons, for “mental illness,” or even for mental illness, absent the commission of a crime, due process, and a definitive prison sentence.

Or at least were not, and I don’t think Comstock changes that.

True, Comstock does appear to conflate the criminal justice system and the public health system by saying that the proper constitutional authority under the Necessary and Proper Clause to prevent a deadly epidemic of a contagious disease is the criminal justice authority—or, to borrow from Kagan, the general power ‘to run a responsible criminal justice system. But the public-health authority, which does allow governments, state and now federal, to force civil commitments of mentally ill people who are dangerous to themselves or others, and to detain someone who has a disease that is both deadly and highly communicable by the person’s mere presence—but only under very specific, very high standards of both procedural and substantive due process. Substantive due process is a longstanding constitutional doctrine that limits the types of infringements upon individual freedoms that the government can legislate. (Roe v. Wade is the most famous substantive-due-process case.)

For Roberts and Alito, interpreting constitutional and statutory provisions is always easy, because it entails a mechanical formula: every provision of the Constitution, every statute, every government action, is interpreted in accordance with 1980s Republican political ideology, and always serves the interests of some faction of the Republican base. So, for example, the police powers of the federal government and of state and local governments never violate the Constitution unless the right at issue is a favorite of the political right. The law-and-order right likes the federal statute at issue in Comstock.

So for Roberts and Alito both, the statute at issue in Comstock is constitutional. And for both of these justices, the Necessary and Proper Clause does not authorize the new health-insurance statute, at least not all of it, Roberts’ agreement with Breyer’s entire opinion notwithstanding. Thomas and Scalia surely will side them there, but their jurisprudence is at least more complicated, if only on a fair-weather basis.

And in Comstock, the weather was fair. Thomas nails it when he says in his dissent, “The fact that the federal government has the authority to imprison a person for the purpose of punishing him for a federal crime—sex-related or otherwise—does not provide the government with the additional power to exercise indefinite civil control over that person.” What, pray tell, does authority to build and maintain prisons, and the authority (and obligation) to provide medical treatment to ill inmates, and to isolate the general inmate population from an inmate who has a serious contagious disease, have to do with whether the federal government has the legal authority under the Necessary and Proper Clause to enact any legislation it wishes to incarcerate anyone beyond his or her sentence?

Kagan’s jurisprudential philosophy seems to be that any statute enacted by Congress, or any executive-branch administrative agency policy (promulgated “regulations”) is constitutional by sheer virtue of the fact that one of the elected branches of government enacted or promulgated the statute or regulation. But clearly, the current justices do not. Best as I can tell, not even one of them. The currents ones, that is.

A broader view of Comstock would effectively nullify huge portions of the Constitution—every right accruing to individuals. Even those that the Right likes. Even Second Amendment rights! It would tacitly reverse Marbury v. Madison, the famous Supreme Court opinion that established the principle of judicial review of the constitutionality of federal statutes.

Again, including those that may infringe upon Second Amendment rights.

(This is a redraft of a post from May 19. I deleted the earlier version.)

Hear, hear, Joan Walsh!

Link.

The AP's Charles Babington’s Strange Argument

“WASHINGTON – Voters rejected one of President Barack Obama's hand-picked candidates and forced another into a runoff, the latest sign that his political capital is slipping beneath a wave of anti-establishment anger.

Sen. Arlen Specter became the fourth Democrat in seven months to lose a high-profile race despite the president's active involvement, raising doubts about Obama's ability to help fellow Democrats in this November's elections.

The first three candidates fell to Republicans. But Specter’s loss Tuesday to Rep. Joe Sestak in Pennsylvania's Democratic senatorial primary cast doubts on Obama's influence and popularity even within his own party — and in a battleground state, no less.

Of course, it's possible that Democrats will fare better than expected this fall. And there's only so much that any president can do to help other candidates, especially in a non-presidential election year.

Still, Obama's poor record thus far could hurt his legislative agenda if Democratic lawmakers decide they need some distance from him as they seek re-election in what is shaping up as a pro-Republican year. Conversely, it might embolden Republican lawmakers and candidates who oppose him.”
—Charles Babington, “Obama endorsements don't seem to help Democrats,” Associated Press

Well, actually, since Sestak is not only a Democrat but also a liberal Democrat who as a congressman supported the health-insurance legislation without hesitation and who supports the legislative agenda of Obama and Nancy Pelosi on the entire current panoply of high-profile issues—climate-change legislation, financial-sector regulation, immigration-reform legislation—it would appear more likely that the Pennsylvania Democratic primary voters were more concerned that Specter, if reelected, may revert to his “independent” or Republican policy positions on such key proposed legislation than that Sestak would, um—what?

Vote for Obama’s legislative proposals? Or, like they were afraid Specter might, vote against them?

Why would a vote for a solid liberal House member as their senate candidate signify that Democrats want the more progressive legislation defeated. What is Babington talking about?

Obama endorsements don't seem to help Democrats. But when the Obama-endorsed primary candidate loses to a clearly ideologically liberal Democrat, that hardly indicates that Democrats are rejecting the more progressive policy proposals of the White House or the congressional Democrats. It indicates the opposite.

The “Felony Murder” Doctrine and Graham v. Florida

“What about other terribly long—but not lifelong—prison terms for teenagers? Or even for adults? Kennedy doesn't go here, of course. But he doesn't foreclose it, either. Terrance Graham, he writes, deserved to be in prison for some time, "but it does not follow that he would be a risk to society for the rest of his life." It's a line that will resonate for a lot of criminals who say they've rehabilitated themselves.”
—Emily Bazelon, "They're Just Kids: The Supreme Court rules that juveniles can't be sentenced to life without parole”, Slate, discussing yesterday’s Supreme Court opinion in Graham v. Florida.

How to explain the “felony murder” doctrine? Use the term “felony murder” and people look at you quizzically. Aren’t all murders felonies? Well, yes. But the term “felony murder” actually is a legal term of art that turns certain unintentional manslaughters into first-degree murders. In other words, the law treats these unintentional manslaughters in the same manner as the law treats premeditated murder. Wikipedia explains:

“The rule of felony murder is a legal doctrine in some … jurisdictions that broadens the crime of murder in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony, what might have been manslaughter is escalated to murder. Second, it makes any participant in such a felony criminally liable for any deaths that occur during or in furtherance of that felony. While there is some debate about the original scope of the rule, modern interpretations typically require that the felony be an inherently dangerous one, or one committed in an obviously dangerous manner. For this reason, the felony murder rule is often justified by its supporters as a means of deterring dangerous felonies.”

So if, for example, you try to commit an unarmed robbery of a convenience store, and the store clerk reacts by reaching for a gun and trying to shoot you, but misses and instead shoots and kills a store patron, you will be charged with “felony murder” because the accidental death occurred during the course of, and as a result of, your attempt to rob the convenience store. In some states—my own, for example—the mandatory sentence if convicted is the same as the mandatory sentence for premeditated murder: life without possibility of parole.

The stated justification for this rule—deterring dangerous felonies—is, of course, a laudable one. But because virtually no one who doesn’t have a law degree knows of the rule, its actual deterrent effect surely is nil. And because it treats these acts death far more harshly than acts that result in second-degree murder or voluntary manslaughter charges, they make no sense whatsoever; these statutes are utterly arbitrary, and the punishment in many such cases surely cruel and unusual.

They do, however, result in life sentences for some quite young men who surely have as much potential for rehabilitation as people given far lesser sentences for crimes of intent to cause much more serious harm.

So I expect that, given some of the language in Kennedy’s majority opinion in Graham v. Florida, “felony murder” statutes, as currently written, will be challenged as unconstitutional under the Eighth Amendment. I think they should be challenged, and I hope the challenge is successful.

(Disclosure: For the last year-and-a-half or so, I’ve been assisting, pro bono, a pro se federal habeas corpus petitioner, albeit without actually representing him in court, who was sentenced by a Michigan state court to life without chance for parole under Michigan’s felony-murder statute. He is arguing that there is virtually no evidence that the shooting occurred during an attempted larceny, as was alleged, and extensive evidence that there was no attempted larceny. I do not practice law, but was asked to assist the petitioner in this case, and obliged.)

Conflating Court-Created Rights and Court-Negated Rights

“This leads us to Obama's other strong belief: that courts still have a central role in protecting the downtrodden. When Souter retired, the president said he wanted to replace him with a justice who ‘recognizes that one of the roles of the courts is to protect people who don't have a voice. That's the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up.’"
—Dahlia Lithwick, What Does He See in Her?What Obama's choice of Kagan tells us about his own judicial philosophy, Slate

How to square the president's desire for a court that protects minorities with a court that doesn't intrude on the business of the elected branches? That's Lithwick's question.

Well, one way would be to push legislation that forces the federal courts to end their decades-long custom of dismissing virtually every civil rights lawsuit brought under 42 U.S.C. § 1983, the primary statute, enacted in the aftermath of the Civil War, to effectuate the Fourteenth Amendment by providing access to federal courts for individuals in order to vindicate constitutional rights.

The Federalist Society crowd on the Supreme Court and on the lower federal courts has effectively repealed that statute, except of course when it’s used to, say, challenge the constitutionality of a state or federal handgun law. Otherwise, there will always be some court-created procedural, jurisdictional, quasi-jurisdictional, “standing,” sovereign immunity, or “[un]qualified immunity”, doctrine to interpret as barring the litigation.

It would be nice if, when Jeff Sessions, Jon Kyl, or Orrin Hatch starts complaining about liberal activist jurisprudence in which judges decide to create substantive constitutional rights, Elena Kagan responds by, maybe, reading the text of the Eleventh Amendment and juxtaposing it with the Originalists/Textualists and balls-and-strikes-calling crowd’s rewriting of that Amendment.

Or reading Federal Rule of Civil Procedure 8(a), which is a federal statute that states what a lawsuit complaint must, and what it need not, contain, and comparing it with the Originalists/Textualists and balls-and-strikes-calling justices’ interpretation of that Rule.

Or reading the actual language of 42 U.S.C. § 1983 and then noting, say, the metastasizing of the court-created “qualified immunity” doctrine, the Court-created Younger “abstention” doctrine (see my earlier post on this) and the Court-created Rooker-Feldman doctrine.

She might then mention that the Federalist Society contingent on every level of the federal bench has embarked upon an aggressive and wildly successful effort to remove constitutional and statutory rights created not by liberal federal judges but instead, expressly, by the Constitution and by Congress.

She might also mention that Sen. Sessions recently argued in the Washington Post that the Supreme Court should simply overrule Congress’s enactments if the statutes don’t comport with conservative political ideology.

But instead, Kagan, whether by her own choice or at the instruction of her White House choreographers, will, like Sotomayor a year ago, shrug and acquiesce in the cliché that rightwing judges are originalists, textualists, and impartial umpires and that liberal judges rewrite the law in accordance with their own view of what the law should be.

And Obama, as always, will dance back and forth, but mostly back, on what liberal and what conservative jurisprudence really is.

Sen. Jeff Sessions' Habitual Conflations and Misrepresentations

Prologue: "The Slaughter-House Cases" is the title of an 1873 Supreme Court opinion that was among the first to interpret some part of Section 1 of the Fourteenth Amendment, which was the part of that amendment that required the States to comply with the Bill of Rights and with other constitutional protections for individuals against government intrusion.

Or at least that was its purpose. But in Slaughter-House, a five-member majority of the Court interpreted one of the three main clauses of that section—the Privileges and Immunities clause, which states that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States—as applying only to the privileges and immunities accorded by United States citizenship, rights they said were limited to those that imposed some affirmative duty on the federal government itself.

Although the purpose of most of the litigation of that era that involved interpreting the Fourteenth Amendment was to undermine Reconstruction itself, such as United States v. Cruickshank, decided in 1876—the Amendment was supposed to effectuate Reconstruction by requiring the states to comply with federal constitutional and statutory law—the Slaughter-House litigation had a different goal entirely, one concerning the extent to which, within the confines of the Privileges and Immunities Clause, a state can regulate economic activity within its boundaries in order to protect the health and wellbeing of its residents.

In Slaughter-House, an organization of New Orleans-area butchers challenged the constitutionality of a state law that limited slaughterhouses to a specifically designated area at the southern edge of the city, south of the Mississippi in order to avoid waste contamination of the city’s water supply. The butchers invoked the Privileges and Immunities Clause, which, they argued, prohibited the state from infringing upon their constitutional right to exercise their trade and provide for themselves and their families.

The bare majority of justices interpreted the Privileges and Immunities Clause as not applying to, and therefore as not restraining, the police powers of states except as regards the rights that the Constitution identifies as incident to United States citizenship.

The opinion was written by Justice Samuel Freeman Miller, who according to Wikipedia was a former physician who wrote his medical school dissertation on cholera, one of the diseases rampant in New Orleans because of contaminated drinking water. The opinion, though well-meaning and undoubtedly lifesaving in its day, effectively nullified the Privileges and Immunities Clause by rendering either nonsensical or redundant of the Constitution’s Supremacy Clause. The result is a gimmicky, narrow-right-by-narrow-right “incorporation” of various constitutional rights, selected piecemeal by the Supreme Court over the decades, into protections against state incursion.

*****


The title of a recent op-ed piece by Senate Judiciary Committee ranking Republican Jeff Sessions in the Washington Post was striking enough. “Americans look for Supreme Court to restrain federal power, not expand it,” suggested, at least to me, that this conservative Republican senator was calling for the Court to rule in favor of allowing states and municipalities to, among other things, ban the sale or possession of handguns within their borders.

After all, the Court heard argument earlier this spring in a case called McDonald v. Chicago in which the petitioners are asking the Court to rule that the Second Amendment right to bear arms precludes not just the federal government but any government within the United States—states, counties, municipalities, too—from prohibiting the sale and possession of handguns (or any other type of gun).

The lower federal appeals court had noted that the provisions in the Bill of Rights, the first ten amendments to the Constitution, proscribe only the federal government from infringing upon the rights of individuals that those amendments guarantee. Or that at least that was so until the Fourteenth Amendment was enacted after the Civil War—an amendment that appears, in what is known as the privileges and immunities clause, to expressly bar states (and localities, which are chartered by states) from infringing upon the rights the Constitution gives to individuals—and that the Court, in a notoriously problematic 1873 opinion known as The Slaughter House Cases, said otherwise and nullified the privileges and immunities clause.

Rather than overrule Slaughter House outright, the Supreme Court later embarked upon a right-by-right process of deciding whether each particular right provided in the Bill of Rights was, in the Court’s opinion, so fundamental that it is “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions” as to be “incorporated” into another clause in the Fourteenth Amendment—the one known as the due process clause, which prohibits the states from “depriv[ing] any person of life, liberty, or property, without due process of law.”

And it turns out that way back during the Reconstruction Era, the Court had explicitly refused to “incorporate” into the Fourteenth Amendment’s due process clause the Second Amendment right to bear arms. Whatever the extent of the right to bear arms, that right isn’t sufficiently fundamental to be considered a due process right. Or at least it wasn’t, back then.

But that was then and this is now. A slew of civil liberties groups and professors of the right and the left have filed friend-of-court briefs in McCormick imploring the Court to overrule Slaughter House and acknowledge that a clause that provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—which is what the privileges and immunities clause says—means that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

By repealing the repeal of the privileges and immunities clause, the Court would end its own prerogative to decide which of the provisions in the Bill of Rights is fundamental enough to be considered implicit in the concept of ordered liberty. The advantage of this would be that it would not only be the Second Amendment right to bear arms, which he Court held last year is a right that accrues to individuals rather than just well regulated militias (to borrow a phrase from the Amendment itself) that states and municipalities could not infringe upon; it would be all the rights provided in the Bill of Rights. Even those unloved by, say, Chief Justice John Roberts and Justice Antonin Scalia.

And until the oral argument in McCormick on March 2, this seemed possible. But after oral argument, it does not. A majority of justices, including some of the most insistently self-styled balls-and-strikes callers, will reject the invitation to overrule Slaughter House yet pronounce the right to bear handguns a fundamental right. This will enable them to preserve the right that Slaughter House reinstated to the states the right that the outcome of the Civil War and the enactment of the Fourteenth Amendment had removed from them: the right to deny individuals rights incorporated into the Bill of Rights that ideological conservatives don’t consider fundamental when it is someone else who is being deprived of them.

Which is par for the course, the course being the casual gliding back and forth between arguing for and arguing against the power of federal courts to overrule state laws, or for that matter, any laws, and to always call their outcome-determinative position anti-judicial-activist, even when, as Sessions does in his op-ed piece, it is a call for the courts to rule on the basis of conservative policy preference. Sessions says he wants—and thinks a majority of Americans want—the Supreme Court to declare unconstitutional any statute that expands the role of the federal government.

“People,” Sessions writes, “are increasingly worried that Washington is exceeding the limits set by the Constitution, asserting too large a role in American life.” He then conflates the issue of the constitutionality of a statute—legislation enacted by Congress and signed into law by the president—and the entirely separate issues of rights conferred directly by specific provisions of the Bill of Rights and the Fourteenth Amendment, which because they are rights provided directly by the Constitution do not depend for their breadth or effect upon a statute. The right to speak freely, without government interference, exists independent of a statute that gives you that right. Any such statute would be redundant. But a statute that denies you that right in some respect may well be an unconstitutional infringement upon that constitutional right.

Whether deliberately or because he himself does not understand the difference between rights provided by statute and rights provided directly by the Constitution, Sessions claims falsely in his op-ed piece that Obama judicial nominee Goodwin Liu, a law professor at the University of California at Berkeley, “has argued that judges should treat the Constitution as an infinitely flexible document to be interpreted through nebulous ‘social understandings’ and [that therefore] the Constitution provides a right to government health care and welfare – a remarkable view of a document designed to curb the excess of federal power.”

Indeed it would be a remarkable view, but it is not one that Liu holds. And if Sessions read Liu’s writings and written answers to the questions he and other senators posed to him, in writing, he would know that. At least if he, Sessions, understands plainly written English. And if he understands that statutes create legal rights and obligations that the Constitution itself allows statutes to create but that the Constitution itself does not create directly. And if he understands that that is what the entire body of federal statutes does.

What Liu said is that he believes that the government should create rights to health care and certain welfare provisions by enacting statutes that confer those rights. He has said, in other words, that these are policy positions that he believes the government has the constitutional authority to create and that the government should create. In his responses to Sessions’ own questionnaire, Liu wrote that there is “no role for courts” to question Congress’s decision in 1996 to end welfare as an entitlement for some families, nor has he ever written anything elsewhere to the contrary. Nor, contrary to another of Sessions’ op-ed-piece claims, does Liu think the Constitution should be interpreted through consideration of foreign law. He responded to another of Sessions’ questionnaire questions by saying that “foreign law has no legal authority in the interpretation of the U.S. Constitution.”

Unlike so many conservatives, including some on the federal bench, Liu does not confuse his own policy preferences with substantive rights incorporated in the Constitution. He knows the difference. Which distinguishes him from Justices Scalia and Thomas in interpreting (or rewriting, as the case may be) at least one constitutional amendment: the Eleventh, which actually provides in full: “The Judicial power of the United States shall not be construed to extend to any suit in law [a lawsuit asking for a monetary award] or equity [a lawsuit asking not for a monetary award but instead for a declaration of law or for a prohibition of some action], commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The Originalists/Textualists on the Court have repeatedly joined with their states-rights and pro-prosecutor/pro-police colleagues during the last decade or so to claim that that Amendment actually reads: “The Judicial power of the United States, and the Judicial power of any State, shall not be construed to extend to any suit in law commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of the State being sued, or Subjects of any Foreign State.” Really.

Luckily, petitioner McCormick’s lawsuit is just a suit in equity, not a suit in law, because the Court is about to reaffirm that the Judicial power of the United States may be construed to extend to his lawsuit.

Role Playing

"In our constitutional order, justices are not on anybody's team. They have a very different role to play. As a Supreme Court justice, Ms. Kagan's job description would change dramatically. Far from being a member of the president's team, she'd suddenly be serving as a check on it. This is why the Founders were insistent that judges be independent arbiters, not advocates."
—Sen. Mitch McConnell

I get it! Democratic appointees should be blank-slate umpires, but Republican Federalist Society stalwarts should only claim to be dispassionate and non-ideological, when questioned by Democratic senators at their confirmation hearings.

Professor Scalia

"As solicitor general, Elena Kagan is referred to as Gen. Kagan in official settings. Republicans would prefer that you call her Professor Kagan. Soon after President Obama nominated her to replace Justice John Paul Stevens, Republicans were using her academic career to characterize her as an ivory tower elitist and insider. "Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the D.C. Beltway," said Sen. John Cornyn, R-Texas, who sits on the Judiciary committee and also runs the GOP's senatorial campaign committee. "These are not places were one learns 'how ordinary people live.' "
—John Dickerson, Slate

Ah! Professor Scalia! So we progressives finally have a punchy way to sum up the right’s habitual hypocrisy on the issue of elitism.

Thanks, Sen. Cornyn!

True Stripes? Or Truism Stripes?

“At the Daily Beast, Peter Beinart says Kagan barred military recruiters from campus and that she should apologize. … Beinart writes that Kagan's shows her true stripes and that they are anti-military.”
—Emily Bazelon, Slate

What concerns me most about the public debate (such as it is) about Obama’s judicial nominees is that so much of that debate moves forward from erroneous statements of fact, which no one bothers to check for accuracy until after they become embedded truisms. As Emily Bazelon illustrates by looking at the actual facts, Kagan did not bar military recruiters from campus. The true stripes, in other words, turn out to be just truism stripes.

This type of factual error is endemic in the judicial-nominee wars when it is a Democratic president that is doing the nominating. To wit: the formulaic false claims about Ninth Circuit Court of Appeals nominee Goodwin Liu. (See "Sen. Jeff Sessions' Habitual Conflations and Misrepresentations," above.)

But usually the ones guilty of the misrepresentations of fact are people like Jeff Sessions and John Cornyn, not respected journalists like Peter Beinart, who is hardly a rightwinger.

Uh-Oh!

“It's time for us to look at whether we want to amend that law to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.”
—Sen. Joe Lieberman

Well, that’s one way for the Republicans to ensure that if they return to power they’ll stay there! Just randomly apprehend and charge registered Democrats with a terrorist act, so that their citizenship can be stripped.

Expect the arrest rate of terrorism suspects to jump noticeably in October in election years.

Actually, I think the Democrats should try this. They should just arrest and charge large numbers of registered Republicans with terrorism in October—at least in swing House districts or in states in which there is a close Senate election. After the election, they can release them and restore their citizenship rights—until October 2012.

Sen. Kit Bond Doesn’t Think Terrorist Suspects Should Be Entitled to Abortions

“We’ve got to be far less interested in protecting the privacy rights of these terrorists than in collecting information that may lead us to details of broader schemes to carry out attacks in the United States.”
—Senator Christopher S. Bond of Missouri, the ranking Republican on the Senate intelligence committee, arguing to a New York Times interviewer that terrorist suspects should not be read their Miranda rights.

Well, we may or may not be interested in protected the privacy rights of terrorist suspects, and of terrorists—although I know of no one who has expressed an opinion one way or the other about the privacy rights of terrorists.

But Miranda warnings concern the Fifth Amendment right to be free of coerced self-incrimination; specifically, Miranda v. Arizona, held that people who are in police custody must be told of their Fifth Amendment right to remain silent, i.e., that they are under no obligation to answer questions or to say anything at all.

It is the Fourteenth Amendment’s due process clause that the Supreme Court has held encompasses the right to undue interference by the government into decisions of a personal, or private, nature.

Good grace, Senator.