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Why Judicial Elections Are Idiotic And Bad For Law

By Noah Feldman, Bloomberg News (TNS)

Judicial elections are idiotic — but 38 states have them in some form. The U.S. Supreme Court grappled Tuesday with the contradiction inherent in using the electoral process to select public officials whose primary obligation is to be impartial. The precise question was whether a Florida rule that prohibits candidates for judicial office from personally soliciting campaign money violates the First Amendment. But the justices were really confronting was what to do about the strange phenomenon of judicial elections, a problem that goes to the essence of how the justices understand their own role. Unfortunately, their sense of judicial self runs headlong into their conception of the First Amendment.

The justices’ questions were revealing — and they said more about their conception of the judicial role than about how to solve the issue in Williams-Yulee v. the Florida Bar. Justice Sonia Sotomayor, who seemed most sympathetic to the Florida regulation, drew lessons from her own experience. “It’s very, very, very rare,” she observed, “that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something, do whatever it is that I’m asking, that that lawyer will say no. Isn’t it inherent in the lawyer­-judge context that people are going to say yes?”

Obviously, Sotomayor is correct. And the instinct to obey the authority figure isn’t limited to the Supreme Court. Justice Stephen Breyer made the broader point drawing on his experience and that of his brother, a federal district judge in San Francisco: “It’s a sort of a joke,” he began, “but it’s so true in the experience of the court of appeals that I had, my brother in the district court, district court judges I know, in state and federal systems, that the normal response … by a lawyer to a judge in any minor request or, you know, something normal, the answer is yes.”

Pause for a moment to think of what this means. The justices are acknowledging that, relative to lawyers at least, they’re basically omnipotent. When they ask for something, they get it. In this sense, they are closer to princes or bishops than they are to ordinary public officials.

Justice Antonin Scalia’s line of questioning made the justices sounded more like cardinals. He asked one of the lawyers whether the state could regulate certain judicial activities because they were beneath the dignity of the judge. He described what he called “an interest in judicial dignity. There are certain things that are infra dignitatem, as we say.” Later in the argument he returned to the concept, asking the lawyer for the state whether he was “relying on” the judicial dignity argument — an invitation the lawyer declined.

Justice Elena Kagan, the past dean of the Harvard Law School (where she hired me, among other questionable decisions), wanted to know about the constitutionality of the federal canon of judicial ethics that prohibits judges from soliciting money on behalf of nonprofit groups. “Who cares whether I solicit funds on behalf of my old law school,” she asked. “It doesn’t have anything to do with what rulings I’m going to issue, who I’m going to favor, who I’m not going to favor.”

The justices, in other words, were clearly thinking about this case in terms of their own conception of what it means to be a judge. The context, however, makes things more complicated.

Today’s justices are careful to remain aloof from even the appearance of connection to politics. The idea that judges in the states must dirty their hands by running for office strikes the justices as undignified and even coercive.

For the court’s liberals, then, it’ll be tempting to uphold the Florida regulation on the ground that judicial elections are special. The trouble is that, deep down, the justices seem to understand that judicial elections are preposterous. Given that their very structure would seem to undercut the possibility of impartiality, it’s hard to say with a straight face that the state should be allowed to limit free speech to keep such elections “clean.”

On the other side of the scale lies the First Amendment, which applies with its greatest force when political speech in the balance. Justice Anthony Kennedy has been a leading voice on the current court arguing that free speech outweighs almost all campaign-finance restrictions. For him, it would be difficult to treat judges running for office differently from other candidates. His free-speech pronouncements have tended to be absolute rather than context specific. Any special solicitude for keeping elections clean would tend to support campaign- finance regulation.

Judicial elections are therefore problematic for Kennedy, too. His instincts may tell him that judges are different — and the justice who cares most about the concept of dignity can hardly be deaf to the concern of preserving the dignity of his office. Yet Kennedy’s jurisprudence points toward freedom of speech as an absolute value for electoral candidates. To announce a free-speech right for judicial elections would be to acknowledge that judicial elections are no different than any others.

In a perfect world, I think the justices would strike down judicial elections as inherently unconstitutional. Then they could make the whole problem go away. But the states are laboratories of democracy, as Justice Louis Brandeis once said. Within those laboratories, the experiment is allowed to go terribly wrong. Judicial elections have been with us for almost 200 years, and despite the efforts of retired Justice Sandra Day O’Connor, they aren’t going to disappear anytime soon. Until then, judicial elections are a classic example of a hard case. And you know what they say about hard cases: They make bad law.

Noah Feldman is a Bloomberg View columnist. Readers may send him email at nfeldman7@bloomberg.net.

Photo: Scott* via Flickr

The Supreme Court’s Next Opportunity To Kill Obamacare

Nov. 7 (Bloomberg View) — Thought you were done with the U.S. Supreme Court and health care? Think again. The Court has agreed to review the question of whether the federally created health insurance exchanges violate the law’s expectation that the exchanges be created by a state. Reading the tea leaves can only tell you so much about what the Court is going to do. But from the standpoint of the Barack Obama administration, there is reason to be curiously concerned that the president’s signature legislative accomplishment is in jeopardy once again.

The legal arguments are a bit arcane, and I laid them out in a column this summer. To give you the bare minimum, the case involves the public exchanges that the Affordable Care Act anticipated would be set up by the states and therefore described as “established by the state” in the law. Only 14 states plus the District of Columbia have created such exchanges. As a result, the federal government established exchanges on the states’ behalf. Clever lawyers seeking to block operation of the ACA argued that the exchanges are illegal because they were not established by states. The U.S. Court of Appeals for the Fourth Circuit rejected the argument in King v. Burwell. A divided panel of the U.S. Court of Appeals for the D.C. Circuit accepted the argument in Halbig v. Burwell by a 2-1 vote.

Here’s where things get technical — and interesting. The Obama administration had to make a strategic decision of whether they would appeal the D.C. Circuit decision against them. Or, instead, ask the D.C. Circuit to review the case itself through the mechanism of all its members sitting together as a single panel, en banc.

Somewhat controversially, the administration decided to ask for en banc review. It’s reasoning presumably was that it wanted to avoid the Supreme Court if possible. While the D.C. Circuit was considering whether to accept the case en banc, the administration could argue to the Supreme Court to hold off any appeals by the challengers who lost in the Fourth Circuit. If the D.C. Circuit were to reverse the panel, then the Obama administration could then have asked the Supreme Court not to accept an appeal by the challengers who lost in the Fourth Circuit.

This strategy was plausible — but it didn’t pay off. Without waiting for the D.C. Circuit to rehear the case, the Supreme Court agreed to hear the appeal from the Fourth Circuit brought by the law’s challengers.

What does this decision reveal, if anything? It takes four votes of Supreme Court justices to agree to take a case, so there is no guarantee that a decision to grant a review will dictate a particular outcome. Nevertheless, in this situation, it seems probable that the four liberal justices would have strongly preferred to wait for the D.C. Circuit in the hopes of avoiding the issue, as the Obama administration must also have wished. It seems safe to assume that none of those four justices would have agreed to hear the case at this stage.

The same cannot be said of Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy. These justices all voted to strike down the individual mandate, which would have gutted the ACA. Presumably their hostility to Obamacare’s legality is unabated. It seems highly probable that those four would have cast votes to hear the case at this stage. By doing so, they avoided a scenario in which the D.C. Circuit reversed its panel, leaving no dispute among the appellate courts on the legality of the federally created exchanges. For them, a vote to take the case now is a strong signal that they would like to block the exchanges and sink Obamacare with this second legal torpedo.

The $64,000 question is: What about Chief Justice John Roberts? In 2012, Roberts split the baby. He voted to uphold the individual mandate and thus avoided banner headlines screaming that the Roberts court had struck down Obamacare. At the same time, Roberts blocked the element of Obamacare that would have essentially forced states to expand Medicaid. This part of the decision drastically reduced the scope of coverage under the law and therefore the law’s impact.

What will Roberts do now? He took substantial heat from conservative critics who were astonished and horrified to see the lifetime conservative betray the cause at its moment of potential judicial triumph. One possible interruption is that, scarred by this experience, Roberts would now go along with the conservative tide. The continuing unpopularity of Obamacare in opinion polls combined with the obvious weakness of President Obama after the midterm elections would provide some support for this possibility.

The other possibility is that Roberts will not deviate from his judicial restraint centrism. To strike down Obamacare now, having upheld it before, might look like opportunism or wishy-washyness. Given how weak the law increasingly appears, it would be a high price for Roberts to pay before the judgment of history if he now struck it down. Indeed, such a decision would vitiate his earlier restraints.

What seems almost certain is that the other conservative justices have decided to put Roberts to the test. They will not let him get away without standing up and being counted on Obamacare once again.  They have nothing to lose in any case by taking the gamble. For better or worse, the rest of us will be along for the ride. Stand by for a long six months of speculation while this case gets briefed and argued. A decision will come by the end of June. Its déjà vu all over again.

Photo: OZinOH via Flickr

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Roberts Court Cloaks Its Activism In Complexity

To understand the U.S. Supreme Court’s order on greenhouse-gas regulations, I had to read it three times — and I’m a law professor. The complication isn’t a coincidence. It’s the very essence of the imprint that Chief Justice John Roberts is putting on the court.

As its ninth term clicks into gear, the Roberts court has finally developed something like an identity of its own. It avoids highly activist conservative headlines that would drive Democrats to the polls. At the same time, behind a screen of legal complexity, it achieves significant conservative objectives.

The court’s health care decision is an obvious recent example: Roberts cast the deciding vote to uphold mandatory coverage, enraging conservatives and encouraging liberals. But by striking down the provision that pressured states to extend Medicaid, the court gutted the universal coverage that was the Affordable Care Act’s ethical ideal.

The regulation of greenhouse-gas emissions bids fair to produce a similarly confusing result. The court had been asked to review a decision of the U.S. Court of Appeals for the D.C. Circuit that upheld Environmental Protection Agency regulations on greenhouse gases that are the Barack Obama administration’s most significant accomplishments for environmental protection. The court declined to review — and thus left in place — the regulations on motor-vehicle emissions. It also chose not to review the basic question of the EPA’s authority to regulate greenhouse gases. Environmentalists cheered this result.

At the same time, however, the court agreed to review a single, wildly technical-sounding question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” What this question asks in English, roughly speaking, is whether the EPA was allowed to issue emissions regulations governing factories and power plants under the authority of the law that lets it regulate cars and trucks. And what that means in practical terms is that the court could strike down the Obama EPA’s existing greenhouse-gas regulations for the nonmoving (“stationary”) polluters who create much of the pollution that drives global warming.

Behold the Roberts paradigm! Or don’t behold it: The hand is quicker than the eye. The headline allows environmental regulation to stand. The fine print suggests that the most important part of the existing regulations enacted by the Obama administration could be ditched.

And, remarkably enough, environmentalists are buying into the shell game as well. Some experts hastened to explain that, even if the Roberts court were to strike down the stationary-source regulations on the grounds that they were not authorized by laws permitting regulation of motor vehicles, there would still be other ways under the Clean Air Act to enact such rules. The court’s decision to hear the case, they implied, shouldn’t worry environmentalists too much.

The experts’ observation is technically correct but could prove too optimistic. The administration plans to enact different regulations covering coal-fired power plants, under different authority. But if the court were to strike down the existing stationary-source regulations in June 2014, significant uncertainty will result. The court’s reasoning, which cannot be foreseen, could potentially call into question other types of regulation. The litigation surrounding the planned regulations — and believe me, there’ll be litigation — will have to take into account the court’s reasoning, whatever it may be. The apparently narrow question to be addressed doesn’t guarantee a holding acoustically sealed off from regulations under different authority.

Coincidentally, the energy producers and manufacturers who make up the stationary-source polluters form a concentrated interest group. They will lobby to fight the new regulations, no doubt using the argument that greenhouse gases have already been significantly cut by regulating drivers. And, of course, drivers’ interests are more diffuse, so (surprise!) their lobbying power is weaker. They are, in short, perfect patsies to take the regulatory hit.

All this adds up to an extremely sophisticated strategy for the justices who agreed to take the case. Even if they strike down the regulations, they will be doing so on the highly technical basis that the EPA relied on the wrong source of authority. Environmentalists will focus the public’s attention on enacting new regulation, thereby distracting the public from blaming the court. The whole decision will look Solomonic — upholding a part of the regulations while striking down another part — rather than like pro-business activism. The court’s legitimacy will be preserved, even strengthened.

What makes this strategy hallmark John Roberts is how markedly it differs from the approaches of the court’s other conservatives. Justice Antonin Scalia, still the intellectual leader of the conservative wing into his increasingly cantankerous mid-70s, declares his broad principles of originalism and textualism and puts them into practice, most of the time consistently. His swashbuckling decisions and clever, incisive rhetoric leave you in no doubt where he stands. You can love him or hate him (I myself feel both emotions, usually simultaneously), but you always, always know where he stands. Justice Clarence Thomas is similarly out there, lauding the virtues of the 18th century. No one could call either of these justices crafty.

In their decades on the court — each having served with Chief Justice William Rehnquist — Scalia and Thomas never managed to achieve the conservative revolution that the Ronald Reagan era promised and the Federalist Society championed. Radical — and radically consistent — they couldn’t hold the center, frequently losing the votes of Justices Sandra Day O’Connor and Anthony Kennedy when the chips were down. Rehnquist, equally conservative but less openly ideological, couldn’t help. As men of principle, which judges are supposed to be, Scalia and Thomas might feel a perverse pride in never winning the big ones. As men of action, they have mostly failed.

Roberts is a horse of a different color. As a former law clerk to then-Justice Rehnquist, he decided to win, even at the cost of temporarily alienating his conservative elders. His legal craft is unmatched — because if you’re the Supreme Court, it’s much better to win while appearing to lose than to lose by insisting on looking as if you’ve won.

(Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)

Photo: White House/Paul Morse via Wikimedia Commons

Don’t Blame Islam For The Failure Of Egypt’s Democracy

The Arab Spring started in Tunisia, and within a few weeks it had spread to neighboring Egypt. Today, 2 1/2 years later, Tunisia is close to ratifying a democratic constitution with well over two-thirds’ support in the constituent assembly. Egypt, as the world knows, is in the throes of a military coup that removed the democratically elected president. The obvious — and crucial — question is: What’s the difference? Why has democratic constitutionalism worked relatively well in one North African Arab country while it has crashed and burned in another? And what will the answer tell us about the future of democracy in the Arabic-speaking world, from Libya to Syria and beyond?

You might think the answer has something to do with Islam. But remarkably enough, it doesn’t. In both Tunisia and Egypt, the first democratic elections produced significant pluralities favoring Islamic democratic parties. Ennahda, the Islamist movement whose political party won in Tunisia, is ideologically similar to the Muslim Brotherhood, and is a kind of associate of the Brotherhood’s loosely affiliated internationale. Both parties believe in combining Islamic values with democratic practice. Both accept a political role for women and equal citizenship for non-Muslims, even if in practice they are both socially conservative and seek the gradual, voluntary Islamization of society.

Contrasting Styles

The contrasting personalities and styles of their leaders, however, have pushed Ennahda and the Brotherhood to behave differently when negotiating religion with secularists in their respective countries. Rachid Ghannouchi, the spiritual leader of the Tunisian Islamists, has emerged as the closest thing to an Islamic Nelson Mandela. During his decades in exile, Ghannouchi wrote extensively about the compatibility of Islam and democracy, and developed a relatively liberal vision of how Islam and the state should interact.

Skeptics then claimed that Ghannouchi’s views were a cover for a more radical agenda, and some Tunisian secularists still think so. But the evidence thus far is sharply to the contrary. When Islamists called for inserting a reference to Sharia into the Tunisian constitution — usually the sine qua non for any Islamic political party — Ghannouchi took seriously the opposition from secularists. In a dramatic showdown with members of his own party’s leadership, he reportedly threatened to resign unless they dropped the measure.

This may have been the turning point in Tunisia’s constitutional process. Ghannouchi’s position is straightforward: He wants Tunisians to adopt Islamic values, but piety means nothing if imposed by coercion. Islam, he believes, will succeed in persuading people to adopt its truths more effectively if they don’t have its teachings shoved down their throats.

Ghannouchi’s diehard critics would say that omitting Sharia from the constitutional draft was only a tactical retreat, not an ideological one. But if they are right, that is yet another reason why Tunisia’s constitutional process is working: Leaders have displayed willingness to compromise in the face of ideological opposition.

By contrast, when Mohamed Morsi was president, he proved disastrously unwilling to negotiate during Egypt’s truncated constitutional drafting process. The Brotherhood could have shown its good faith by moderating the various Islamic provisions it sought to incorporate. It wouldn’t even have had to omit Sharia, a reference to which was already included in Egypt’s pre-revolutionary constitution. Instead, the Brotherhood went further, giving constitutional authority to the clerics of al-Azhar. Compromise alone wouldn’t have forestalled the protests that led to Morsi’s overthrow. But it would have signaled a willingness to govern on behalf of the whole populace, not just those who voted for the Brotherhood.

Sharing Responsibility

The willingness to share governing responsibility is probably the single most salient factor separating Tunisia’s relative success from Egypt’s disaster. Ennahda has governed as part of a coalition with secularist parties, whose members filled the positions of president and speaker of the Assembly alongside Ennahda’s prime minister.

This so-called troika of parties has often been dysfunctional and has failed to take decisive action on the economy, which is the most important national issue and the impetus to the Arab Spring in the first place. But the symbolic power of the coalition has helped ensure that frustration about the slow pace of economic change hasn’t focused solely on Ennahda, but on the government more generally. In contrast, Morsi failed to appoint a coalition cabinet with any meaningful breadth. Anger at shortages and a failing economy then fell squarely on him and his party.

This isn’t a new problem. Autocratic government has been the curse of Arab states since decolonization. The Arabic-speaking public lacks a political culture experienced in democratic power sharing.

The tradition of unchecked presidential power explains both how Morsi could have tried to govern without compromise, and how the protesters could have come to see him as a dictator worthy of being deposed, even though he was elected democratically. Both sides somehow imagined that an elected president would be a bit like an unelected one: all-powerful, all-responsible, and the sole focus of positive and negative political energy.

But democracy doesn’t work that way, at least in societies that feature fierce political divisions and disagreement. Democracy requires parties to learn to work together and take account of one another’s interests. Those out of power must believe they will eventually be re-elected, and those in power must know they, too, will cycle out. That alone creates incentives to treat the opposition with political consideration and moral respect.

After ratifying its new constitution, Tunisia will have to elect a president. Unfortunately, the draft gives that post more power than would be ideal — a weaker president would have to rely more on partners, and a purely parliamentary system would be better still. But one can only hope that the lessons of coalition won’t be forgotten. As for Egypt, democracy will become sustainable only if power can be shared — under a future constitution that puts civilians ahead of the military and bestows authority not on a single man or woman, but on the full range of the people’s representatives.

(Noah Feldman, a law professor at Harvard University and the author of Cool War: The Future of Global Competition, is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)

Photo: David Evers via Flickr.com

Liars Have A Constitutional Right To Free Speech

June 29 (Bloomberg) — Lost in the hoopla over the U.S. Supreme Court’s ruling upholding the Affordable Care Act is a fascinating and important free-speech decision that is one of the oddest in the already strange history of the First Amendment.

The case, Alvarez v. United States, was all about lies. The first sentence of Justice Anthony Kennedy’s plurality opinion is an instant classic: “Lying was his habit.”

This is a substantial understatement. Xavier Alvarez was a fabulist straight out of Mark Twain. He “lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.” When newly elected to the local water board in Claremont, California, Alvarez falsely told his new colleagues that he was a retired Marine who had received the Medal of Honor after being wounded repeatedly by the same aggressor.

This last lie was unlike the others. It violated the Stolen Valor Act of 2005, which made it a crime to lie about decorations received in military service. It was already a crime to lie about military service in order to defraud the government or private person of some gain. The Stolen Valor Act criminalized the mere act of lying about military decorations, full stop. No intention to defraud was required.

Alvarez seems not to have sought to gain anything by his lie other than esteem. This made him a perfect test case for a question that previously tormented no one but law professors and their students: Does the right to free speech extend to lying for no otherwise unlawful gain?

On the surface, the issue might seem straightforward. With the possible exception of Justice Hugo Black, who liked to say that “Congress shall make no law” really meant no law at all, no Supreme Court justice has ever believed free speech to be absolute. At times, the court has said that certain kinds of speech — such as obscenity, libel and the ill-defined “fighting words” — deserve no protection whatsoever. Although that categorical approach has faded from the court’s jurisprudence, the justices still believe that speech must have some value to merit protection under the First Amendment.

What value inheres in lies about simple matters of fact? What good could possibly come of Alvarez telling people that he risked his life for his country when he did no such thing?

Three justices — Samuel Alito, Antonin Scalia and Clarence Thomas — said the answer was, “none.” There was no reason, they said, to stop Congress from criminalizing lies about military service.

The other six justices disagreed. In oral arguments, it had sounded as though a majority might uphold the law. But in two separate opinions, neither commanding a majority of five, the justices tried their best to explain what was so useful about lying.

The job wasn’t easy. Alvarez’s lawyers, as well as some academics who had filed briefs as friends of the court, had urged the most brazen logic of all, one that Twain himself could only have admired: Lying is a necessary and valuable component of the self-presentation in which we all engage.

The trouble with this argument isn’t only that it turns Jay Gatsby into the archetypal American. (He already is.) It’s that our meritocratic culture is obsessed with sussing out the lies that people slip into their accounts of themselves. From the MIT dean of admissions to the Yale football coach to the chief executive officer of Yahoo!, we have seen multiple examples of the public shaming of the “genus: white liar, species: resume- padder.”

That left the justices scrambling to explain just what was wrong with the law. Kennedy, in his plurality opinion, pointed out that it covered not only public statements but also whispered conversations in the home. Yet, as Alito rejoined, this observation simply showed the law was too broad — not that the prohibition had no value.

Kennedy also invoked the danger of a chilling effect on legitimate speech. Here, too, the argument was weak: Presumably the only person who would be chilled by the law was one who self-consciously intended to lie about his military record, not the octogenarian struggling to remember how many Purple Hearts he had earned in Korea.

Justice Stephen Breyer, joined by Justice Elena Kagan, went a bit further. He said that social lies are valuable “where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence.” He added that public lies could “stop a panic or otherwise preserve calm in the face of danger.” And, former law professor that he is, Breyer invoked the Socratic method, in which, he claimed, “examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.”

None of these arguments really addresses the Alvarez case. The bride is always beautiful, said the rabbis of the Talmud. And it is heartwarming for little Virginia still to believe in Santa Claus. These are matters of opinion and myth, not fact. Public lies about imminent disaster are the product of a paternalistic past and today would lose the teller his job. Socrates, for his part, was playing a complex philosophical game — and the Athenians condemned him to death for his dangerously corrupting truths, not his misleading statements, which were mostly in the form of questions anyway.

Breyer didn’t mention Stephen Colbert. But he did invoke the famous assertion of John Stuart (Mill) that falsehoods in debate promote the truth through their “collision with error.” This might be closer to the right answer. Rooting out those who lie about military commendations should make us consider publicly the extraordinary debt we owe to those who risk or give their lives and merit the real thing.

We don’t need to tolerate the liar. In a free society, however, maybe we have to shoulder the burden of condemning him ourselves — instead of lazily trusting the government to do something about it.

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)

Arizona Immigration Argument Leads To National ID

April 26 (Bloomberg) — Can the police stop you and make you show your papers? In Europe, the answer has long been yes.

On Wednesday, the U.S. Supreme Court took up the issue — and from what the justices said at oral argument, it seems the U.S. might soon be getting more European. Or at least one step closer to requiring a national ID card.

The Arizona law before the court, S.B. 1070, makes it a state crime to be an illegal immigrant, and for illegal immigrants to seek work. It empowers the police to arrest anyone suspected of committing a crime that would merit deportation, even if the crime occurred in a different state.

But the law’s most controversial and important provision, section 2(B), requires law enforcement to determine immigration status whenever officers have a “reasonable suspicion” that any person with whom they have lawful contact is in the country illegally.

After Arizona passed the law, the Barack Obama administration challenged all these provisions before the federal courts. Civil rights activists believe, reasonably, that the law could be used to discriminate against Latinos, who are more likely to look suspiciously like illegal immigrants in the eyes of the Arizona police.

Yet the Justice Department decided to sidestep that racial issue. Instead, it asserted the inherent federal power to set law and policy on immigration. It claimed that Arizona was trying to set up its own policy of “attrition by enforcement” — scaring illegal immigrants back across the border to Mexico, or at least to surrounding states. A lower federal court and the 9th U.S. Circuit Court of Appeals agreed, blocking Arizona from enforcing the law without waiting to see how it would be applied in practice.

Avoiding the question of discrimination may have been good politics, but it was a risky legal strategy for the administration. No one (or at least no one but Justice Clarence Thomas) doubts that federal law can implicitly pre-empt an inconsistent state policy. But Arizona, represented Paul Clement (the conservative hero of last month’s health-care arguments), maintained before the court that its law is perfectly consistent with federal immigration law — it is just taking that law seriously and giving it bite.

That left Solicitor General Donald Verrilli (who had a rough time during the health-care argument) to insist that Arizona had crossed the line into inconsistent policy-making. The trouble with this argument is that the law has not yet been enforced — which makes it harder to claim that enforcement of the Arizona law would lead to inconsistency with federal policy.

To complicate things further, the framers of the Constitution were not worried about the states over-enforcing federal law. To the contrary, they feared that states would ignore laws made by Congress, as they had done under the Articles of Confederation. The Constitution solved that problem by making federal law the “supreme law of the land,” binding on states. To say that states cannot use at least some of their own discretion in enforcing federal law seems to turn states rights on its head.

In Wednesday’s argument, the justices understandably focused on the “papers, please” provision. The government asserted that the obligatory demand to provide proof of citizenship conflicted with federal policy not to require such a demand — but not that the demand was otherwise unconstitutional. For his part, Clement argued that the demand alone could not displace federal law or immigration policy. Under the Arizona law, he pointed out, a person detained for failing to produce his papers would be transferred immediately to federal immigration authorities, who could then make a decision about whether to deport him.

The upshot was that the court never had to confront the core question of whether there is a right to walk down the street without being challenged to provide proof of citizenship. Of course, the Arizona law requires reasonable suspicion before the demand is made. And Clement claimed in the oral argument that the law only allows the demand to be made after a stop based on probable cause.

But what, in the real world, would create a reasonable suspicion that someone is not American? It can’t be appearance or language. Americans come in all shapes and sizes, and there is no legal obligation for Americans to speak or understand English. In the old war movies, knowing who had won the World Series was proof of being a real American. But that is not information you wear on your sleeve.

This isn’t some theoretical question. If I can be forced to prove my citizenship on pain of arrest, I need something to convince the police that I’m a citizen. If I’m a legal immigrant, I will own the papers to prove it — and I will have to carry with them with me everywhere.

But what about citizens who are born in the U.S. but do something that makes the police reasonably suspect that they are illegal? What they need is a piece of paper declaring that they are citizens. A state-issued driver’s license won’t do, because noncitizens can drive. Anyway, states may have no record of who is a U.S. citizen. The ID card has to be national, as when we travel abroad — which means a passport.

You can’t blame the justices for avoiding such a tough issue when the government didn’t raise it in the first place. But if the court holds that Arizona can experiment with “papers, please,” you should consider renewing your passport before bringing the family to the Grand Canyon.

 

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)

Obama Team’s Al-Awlaki Memo Furthered Bush Legacy

Oct. 17 (Bloomberg) — Killing terrorists with drones is great politics. To the question, “Is it legal?” a natural answer might well be, “Who cares?”

But the legal justifications in the war on terrorism do matter — and not just to people who care about civil liberties. They end up structuring policy. As it turns out, targeted killing, now the hallmark of the Barack Obama administration’s war on terrorism, has its roots in rejection of the legal justifications once offered for waterboarding prisoners.

The leaking of the basic content (but not the text) of an Obama administration memo authorizing the drone strike that killed U.S. citizen Anwar Al-Awlaki therefore calls for serious reflection about where the war on terrorists has been — and where it is headed next.

The George W. Bush administration’s signature anti-terror policy after the Sept. 11 attacks (apart from invading countries) was to capture suspected terrorists, detain them, and question them aggressively in the hopes of gaining actionable intelligence to prevent more attacks.

In the Bush years, after the CIA and other agencies balked at the interrogation techniques being urged by Vice President Dick Cheney, the White House asked the Department of Justice to explain why the most aggressive questioning tactics were legal. Lawyers at the Office of Legal Counsel — especially John Yoo, now a professor at the University of California at Berkeley — produced secret memos arguing that waterboarding wasn’t torture.

The Torture Memos

What was more, the memos maintained, it didn’t matter if it was torture or not, because the president had the inherent constitutional authority to do whatever was needed to protect the country.

Some of the documents were leaked and quickly dubbed “the torture memos.” A firestorm of legal criticism followed. One of the most astute and outraged critics was Marty Lederman, who had served in the Office of Legal Counsel under President Bill Clinton. With David Barron, a colleague of mine at Harvard, Lederman went on to write two academic articles attacking the Bush administration’s theories of expansive presidential power. Eventually, Jack Goldsmith, who led the Office of Legal Council in 2003-04 (and is now also at Harvard), retracted the most extreme of Yoo’s arguments about the president’s inherent power.

In the years leading to the 2008 election, all this technical criticism of the Bush team’s legal strategy merged with domestic and global condemnation of the administration’s detention policies. The Supreme Court weighed in, finding that detainees were entitled to hearings and better tribunals than were being offered. As a candidate, Obama joined the bandwagon, promising to close the prison at Guantanamo Bay, Cuba, within a year of taking office.

Guantanamo is still open, in part because Congress put obstacles in the way. Instead of detaining new terror suspects there, however, Obama vastly expanded the tactic of targeting them, with eight times more drone strikes in his first year than in all of Bush’s time in office. Barron and Lederman, the erstwhile Bush critics, were appointed to senior positions in the Office of Legal Counsel — where they wrote the recent memo authorizing the Al-Awlaki killing.

What explains these startling developments? If it’s illegal and wrong to capture suspected terrorists and detain them indefinitely without a hearing, how exactly did the Obama administration decide it was desirable and lawful to target and kill them?

The politics were straightforward. Obama’s team observed that holding terror suspects exposed the Bush administration to harsh criticism (including their own). They wanted to avoid adding detainees at Guantanamo or elsewhere.

A Father’s Appeal

Dead terrorists tell no tales — and they also have no lawyers shouting about their human rights. Before Al-Awlaki was killed, his father sued the government for putting the son on its target list. The Obama Justice Department asked the court to dismiss the claim as being too closely related to government secrets. The court agreed — a result never reached in all the Guantanamo litigation. Anwar Al-Awlaki now has no posthumous recourse.

In the bigger picture, Obama also wanted to show measurable success in the war on terrorism while withdrawing troops from Iraq and Afghanistan. But even here the means were influenced by legal concerns.

Osama bin Laden is the best example. One suspects that the U.S. forces who led the fatal raid in Abbottabad almost certainly could have taken him alive. But detaining and trying him would probably have been a political disaster. So they shot him on sight, as the international law of war allows for enemies unless they surrender.

The authority for targeted killing — as expressed in the Lederman-Barron memo — offers the legal counterpart to the political advantages of the Obama targeting policy. According to the leaks, the memo holds that the U.S. can kill suspected terrorists from the air not because the president has inherent power, but because Congress declared war on Al-Qaeda the week after the Sept. 11 attacks.

The logic is that once Congress declares war, the president can determine whom we are fighting. The president found that Yemen-based Al-Qaeda in the Arabian Peninsula, which didn’t exist on Sept. 11, had joined the war in progress. He determined that Al-Awlaki was an active member of the Yemeni groups with some role in planning attacks. And, the memo says, it’s not unlawful assassination or murder if the targets are wartime enemies.

From a formal legal standpoint, Lederman and Barron can claim consistency with their attacks on the Bush administration. They relied on Congress and international law; Yoo’s “torture memos” didn’t.

But this argument misses the more basic point: Most critics rejected Bush’s policies not on technical grounds based on the Constitution, but because they thought there was something wrong with the president acting as judge and jury in the war on terrorism.

No Defense Allowed

Anwar al-Awlaki was killed because the president decided he was an enemy. Like the Bush-era Guantanamo detainees, he had no chance to deny this — even when his father tried to go to court while he was still alive.

Naturally, a uniformed soldier in a regular war also wouldn’t get a hearing. But like the Guantanamo detainees, Al- Awlaki wore no uniform. Nor was he on a battlefield, except according to the view that anywhere in the world can be the battlefield in the war on terrorism.

Al-Awlaki might have maintained that he was merely a jihadi propagandist exercising his free speech rights as a U.S. citizen. Which might well have been a lie. Yet we have only the president’s word that he was an active terrorist — and that is all we will ever have. The future direction of the policy is therefore clear: Killing is safer, easier and legally superior to catching and detaining.

Sitting beside Al-Awlaki when he was killed was another U.S. citizen, Samir Khan, who was apparently a full-time propagandist, not an operational terrorist. Khan was, we are told, not the target, but collateral damage — a good kill under the laws of war.

Legal memos are weapons of combat — no matter who is writing them.

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)

Abbas’ UN Offensive Might Be A Step Toward Peace

Sept. 20 (Bloomberg) — Just what is Palestinian leader Mahmoud Abbas thinking? At the new United Nations session, he has announced, the Palestinian National Authority will ask the Security Council to recognize Palestine as a state. The application will be dead on arrival: The U.S. has already said it will veto.

Abbas, in other words, wants to lose. The veto, he must hope, will tell the world that Israel, backed by the U.S., is the barrier to peace.

At first blush, this exercise looks purely symbolic — classic defeatism brought to you by the people who, according to the nasty adage, never miss an opportunity to miss an opportunity.

But such a dismissal would be too hasty. Faced with a continuing impasse in negotiations, Abbas is thinking outside the box. Perhaps inspired by the Arab Spring, he is pursuing nonviolent diplomacy, often the road not taken in the Israeli-Palestinian conflict. And it turns out that, appearances to the contrary, he has more options than immediate defeat.

Abbas’s situation isn’t promising. He is blocked on one front by Israeli Prime Minister Benjamin Netanyahu, who has so far been unwilling to negotiate on terms the Palestinians will accept, and has continued to build what the world (including the US) considers settlements in East Jerusalem. On the other front is the militant group Hamas, which controls Gaza, fires rockets into Israel, and won’t recognize the Jewish state’s right to exist, much less negotiate with it.

Making matters worse is the failure thus far of the so-called peace process, which is increasingly viewed as a joke in the region. It has produced little but frustration over the last two decades, providing an excuse for violence. In this perverse cycle, the worse things go, the more Hamas gains. Those on the Israeli right who believe peace is a naive dream see all this as confirmation of their own preferred policies of expansion and rejection.

Given these constraints, it is understandable that Abbas would act on his own and internationalize the issue. Israel says, accurately, that unilateralism bypasses the negotiating framework of the peace process. But it is worth remembering that, just a few years ago, it was Israel pursuing a unilateral path. In 2005, refusing to wait for a Palestinian deal, former Prime Minister Ariel Sharon withdrew Israeli forces and settlers from Gaza.

That decision is now widely considered a failure. Hamas came to power in Gaza and began its rocket attacks on civilians, leading to Israeli military action. At the time, however, the Israeli public approved of the withdrawal despite — or maybe because of — the fact that it was unilateral.

Strength in Nonviolence

For decades, the great mystery of the Israeli-Palestinian conflict has been why there is no Palestinian Gandhi or Mandela, and no popular, widespread nonviolent movement in Palestine. As a democracy heavily dependent on another democracy, Israel should be doubly sensitive to the potential effects of nonviolent civil disobedience on its reputation.

In the past, Palestinian leaders may have feared that their followers would perceive nonviolence as weakness. But the recent effects of peaceful protests in Tunisia and Egypt take away some of the sting of this criticism.

Now, in the fall after the Arab Spring, Abbas’s efforts at the UN may be interpreted as part of a move toward nonviolent resistance. A successful strategy of independence-through- nonviolence usually reaches out beyond the state from which independence is sought — think of how the anti-apartheid movement became globalized in the 1980s. In this context, symbolism — even in defeat — can become a source of strength.

Peaceful domestic protests are also part of any such strategy. Palestinian Authority leaders have repeatedly emphasized that any protests over the UN vote should be nonviolent — and will be kept that way by Palestinian police.

Diplomatic maneuvering in the UN by Palestinian leaders may therefore frustrate Israel and the US. But it is a sign that some Palestinians are pursuing their national aspirations peacefully, legally — and rationally.

Abbas may also have other tricks up his sleeve. The Security Council is unlikely to vote immediately on the Palestinian request. That gives the quartet (the U.S., EU, UN and Russia) more time to try and jump-start negotiations. Under the right conditions, Abbas could then withdraw the request.

He could also still do what most expected him to try this week: Take his request for statehood to the UN General Assembly, where the U.S. has no veto. A two-thirds vote there would upgrade Palestine from “observer entity” to “observer state,” like the Vatican.

Winning in the General Assembly might be particularly effective after losing in the Security Council since it would give countries the chance to repudiate the U.S. veto. And an observer state can participate in UN bodies and commissions.

International Court Jurisdiction

More practically, recognition as an observer state might help the Palestinian Authority reach its goal of getting the International Criminal Court to pronounce on Israel’s behavior in the territories and perhaps even declare the building of settlements a war crime. While the Palestinian leadership has asked the tribunal to take jurisdiction as if Palestine were a state, the ICC has never said “yes” or “no.” If Palestine becomes an observer state at the UN, however, that might strengthen its case.

Israel would certainly argue that a UN observer still isn’t a real state in the sense meant by the ICC treaty. Israel would also point out that the ICC can’t act if a country that has jurisdiction over an alleged crime has adequately investigated it. Israel’s robust judicial system regularly examines claims of war crimes against its soldiers and government. The question is whether the court would buy those arguments — and whether leverage would be gained for the peace process as a result.

None of this would transform the Israeli-Palestinian conflict overnight. But at least these steps are peaceful. The alternative, waiting in the wings, is Hamas — and more violence.

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)