The People Behind the Scenes in Constitutional Law

Newsweek has a story about the bureaucratic machinations in creation of legal justification for expansive presidential power, and the bureaucratic fallout. One key player is Department of Justice Lawye David Addington:

Addington and a small band of like-minded lawyers set about providing that cover—a legal argument that the power of the president in time of war was virtually untrammeled. One of Addington's first jobs had been to draft a presidential order establishing military commissions to try unlawful combatants—terrorists caught on the global battlefield. The normal "interagency process"—getting agreement from lawyers at Defense, State, the intelligence agencies and so forth—proved glacial, as usual. So Addington, working with fellow conservative Deputy White House Counsel Timothy Flanigan, came up with a solution: cut virtually everyone else out. Addington is a purist, not a cynic; he does not believe he is in any way ignoring or twisting the law. It is also important to note that Addington was not sailing off on some personal crusade; he had the full backing of the president and vice president, who shared his views. But, steeped in bureaucratic experience and clear in his purpose, Addington was a ferocious infighter for his cause.

Also, The New York Times Sunday Edition has an article on the movers and shalers who have been pushing for a conservative takeover of the federal courts for a quarter century.

A movement that in 1982 sought only a haven from what its members considered the prevailing liberalism of the law schools and the federal courts has become a major force in the law. And with Judge Alito's confirmation, conservatives hope they may have at last begun to shift the balance of the Supreme Court in their direction on matters like abortion rights, school prayer, the death penalty and the limits on federal power.

Its worth considering, while we talk of the Rule of Law, that people and ideas matter too.

War on Terror and the Constitution

From Findlaw.com: Federal Appeals Court Upholds Airport IDs

By DAVID KRAVETS Associated Press Writer

(AP) - SAN FRANCISCO-An appeals court on Thursday dismissed a legal challenge to federal airport regulations requiring passengers to show identification before they board planes.

The 9th U.S. Circuit Court of Appeals rejected claims by Libertarian activist and millionaire John Gilmore that the policy constituted an illegal search and violated his right to travel freely.

After reviewing the government's identification policy in private, a unanimous three-judge panel said the policy was not overly intrusive

Interestingly, the case involved not only matters of search, but also of government transparency:

The court said Gilmore could leave the airport if he didn't want to show his ID and had other ways to get around besides air travel. It also rejected assertions that the act of showing identification was an illegal search of Gilmore, who made his millions as a founding employee of Sun Microsystems.

Gilmore....said government regulations should be disclosed in writing to the public. While millions of passengers willingly show their IDs at airports, Simpich said there is no way to know whether the regulations call for impermissible searches because the government, and the court, won't make them public.

The last word on transparency in this case:

the review was done in private for security reasons.

This is the kind of issue one might consider in thinking about the second paper topic, how has the War on Terror affected constitutionalism?

Constitutional Law and Judging

Today the Senate Judiciary Committee approved Samuel Alito's nomination on a party line vote.

Discussion of nominees over the past several months makes clear the political considerations in selecting justices. As a political scientist, I find it interesting that the political interests who stand to benefit from the nominees dispute the political considerations.

In early December, two Knight Ridder reportes published an article "Review of cases shows Alito to be staunch conservative."

Curiously, the story brought hostile reaction from the Bush White House, from Senator John Cornyn of Texas, from the Senate Republican Conference, and from the Alliance for Justice link not provided: it froze my computer last time).

Yet in today's New York Times piece, South Carolina Senator Lindsey Graham is reported to be

saddened that the vote today was strictly according to party and that Judge Alito was likely to get only a handful of Democratic votes in the full Senate. "What did you expect President Bush to do when he won?" Mr. Graham asked rhetorically.

The quote of course suggests that Mr. Bush selected a conservative. Indeed, Mr. Bush has long said he intends to appoint justices in the mold of Scalia and Thomas, presently the two most reliable conservative votes (joined last week by Chief Roberts in the Oregon assisted suicide case).

Consider, for instance, the criticism of Harriet Miers on the PBS NewsHour by John Yoo,former Justice Department Lawyer and now Berkeley Law Professor:

One thing I've been saying is that you can think of this as being a faith-based nomination, because the president is asking that Republicans and his supporters take it on faith that Harriet Miers is the kind of person who lives up to his campaign pledge that he would appoint justices like Scalia or Thomas. But Scalia and Thomas had very clear track records and public positions on constitutional law when they were nominated. And as we just saw in the clips, Harriet Miers, apparently, does not.

Similarly, after Miers' withdrawal, CNN reported last Halloween:

After Miers withdrew Thursday, ..., conservatives eagerly awaited a nominee with judicial experience and credentials similar to Justices Antonin Scalia and Clarence Thomas.

Are Americans unable to have an honest debate about the Constitution and how it should be interpreted? That question could be interpreted as critical of the motives or character of the Republicans who attacked the K-R story, but you might also consider that the question is broad enough to include the political environment (including advocacy groups) in which they operate.

Presidential Powers, and Constitutional Limits

Presidential Power, Constitutional Limits
Knight Ridder published an accessible article on the constitutionality of domestic spying ordered by the president.

WASHINGTON - The dispute over President Bush's domestic spying program hinges on the same tough question that vexed the nation's founders: How much power does a president have?

Bush and his legal advisers argue that the Constitution and federal law give him the right to authorize domestic eavesdropping without a warrant from a court or specific approval from Congress. The electronic surveillance, conducted by the super-secret National Security Agency, is aimed at communications between the United States and suspected terrorists overseas.

Bush's critics, citing the same legal sources, charge that he exceeded his legal and constitutional authority and could be impeached for breaking the law.

Here's a look at the legal underpinnings of the controversy:

Click on through to read the article, and to find links to other sources.

Oregon Assisted Suicide

As the papers have emphasizing, the Oregon assisted suicide case was decided as a case of statutory interpretation, and it was about Federal and State sovereignty. As The National Law Journal's Marcia Cole stated on PBS' The News Hour,

It was partly a states' rights case but I would say it was really more of a statutory interpretation case, sort of the bread and butter stuff that the Supreme Court does in most of its cases. They were interpreting a statute.

Similarly, in the New York Times, Linda Greenhouse wrote,

While the court's decision was based on standard principles of administrative law, and not on the Constitution, it was clearly influenced by the majority's view that the regulation of medical practice belonged, as a general matter, to the states. Mr. Ashcroft acted contrary to "the background principles of our federal system," Justice Kennedy said in his 28-page opinion.

Punchline: the six members in the majority determined that Congress never intended for the Controlled Substances Act of 1970 to give the national government such far reaching pwoers, and, related, certainly there was no statutory authorization for the Attorney General to claim this authority.

A recurring argument in the study of Constitutional Law is the appropriate standard of interpretation. Those of us in Law and Judicial Process last semester read about interpretative strategies, and featured prominently was Justice Antonin Scalia, who holds himself, and is sometimes held by others, to be "principled" in his interpretive practices, all the while accusing others of picking and choosing, or following their personal preferences.

Against that background, you might find interesting this Slate.Com piece by Will Saletan, analyzing Scalia's reasoning in the recent abortion and assisted suicide cases.

The Thesis, from the intorductory paragraph, is:

On Tuesday, the U.S. Supreme Court handed down a ruling on assisted suicide. On Wednesday, it handed down a ruling on abortion. As Justice Antonin Scalia has often observed, judges are supposed to stick to principles, not change them to suit personal preferences from one issue to the next. But evidently, that advice doesn't apply to Scalia.