George Will Favors A More Activist Court: Argues That Bailout Law Violates Constitution

George Will has published an essay which argues that the Emergency Economic Stabilization Act of 2008 (or "EESA"), known affectionately as the "bailout" legislation, is unconstitutional. Will contends that the EESA violates the "nondelegation doctrine." This doctrine, rooted in the separation of powers, prohibits Congress from delegating its legislative authority. The Supreme Court, however, has applied this doctrine with a tremendous degree of flexibility.

Supreme Court precedent allows Congress to legislate in broad terms and delegate to the Executive Branch the authority to promulgate specific rules and policies that effectuate or give substance to the legislation. The Court only requires that Congress provide meaningful guidelines for the exercise of executive discretion. Chief Justice Taft's opinion in the 1928 case J.W. Hampton v. United States contains the most definitive language on this subject:

If Congress shall lay down by legislative act an intelligible principle to which the person or body [authorized to exercise discretion] is directed to conform, such legislative action is not a forbidden delegation of legislative power.

Will argues that the EESA "flunks" the intelligible principle test:

By enacting [the EESA], Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: "Here is $700 billion. You say you will use some of it to buy up banks' 'troubled assets.' But if you prefer to do anything else with the money -- even, say, subsidize automobile companies -- well, whatever."

Will analogizes the EESA to the hypothetical and dramatically vague "Goodness and Niceness Act," which Professor Gary Lawson describes in an essay that criticizes the granting of broad discretion to the Executive Branch by Congress. Lawson's hypothetical statute bans "all transactions involving interstate or foreign commerce that do not promote goodness and niceness," and it authorizes the President to "define [its] content . . . by promulgating regulations to promote goodness and niceness in all matters involving commerce and . . . specify[ing] penalties for violations of those regulations."

Will Overstates the Ambiguity of the EESA
The EESA undoubtedly gives the President and the Secretary of Treasury wide discretion (I have previously written an essay on the subject). Will, however, overstates the statute's ambiguity. The statute places parameters around the use of bailout funds by defining "troubled assets":

TROUBLED ASSETS.—The term ‘‘troubled assets’’ means—
(A) residential or commercial mortgages and any securities, obligations, or other instruments that are based on or related to such mortgages, that in each case was originated or issued on or before March 14, 2008, the purchase of which the Secretary [of Treasury] determines promotes financial market stability; and

(B) any other financial instrument that the Secretary, after consultation with the Chairman of the Board of Governors of the Federal Reserve System, determines the purchase of which is necessary to promote financial market stability, but only upon transmittal of such determination, in writing, to the appropriate committees of Congress.

Although the statute permits the purchase of "other financial instruments" that promote "financial market stability" but never defines the phrase "financial market stability," this does not mean that the law lacks an intelligible principle. The phrase is sufficiently specific and commonly used to qualify as an intelligible principle under Supreme Court's precedent.

Will Advocates A More Activist Judicial Role In This Area
If the Supreme Court applied the nondelegation doctrine in a more activist fashion, then Will's essay would present a more plausible constitutional argument. The Supreme Court, however, has applied the nondelegation doctrine with a high degree of flexibility.

Will correctly observes that "[s]ince the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers." Will fails to mention, however, that prior to 1935, the Court had never invalidated a law on the ground that it impermissibly delegated legislative authority. For almost the entirety of its existence, the Supreme Court has declined to use the nondelegation doctrine to constrain Congress.

In the 1989 case Mistretta v. United States, the Court upheld over a nondelegation challenge the creation of the Federal Sentencing Commission, which Congress authorized to promulgate sentencing guidelines for federal crimes. The 8-1 ruling, which united Justices as diverse as Rehnquist and Brennan, documents the Court's historically flexible approach to nondelegation questions:

[O]ur jurisprudence has been driven by a practical understanding that, in our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.

"The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function." Accordingly, this Court has deemed it "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."

Despite the Supreme Court's longstanding flexibility on this issue, Will believes that courts should declare the EESA unconstitutional. This act alone would compel a more activist stance by the judiciary.

Invalidating the legislation, however, would also require courts to defy the will of two presidents, two sessions of Congress, and the Secretaries of Treasury of two administrations -- who have supported the legislation. Democracy does not preclude judicial invalidation of laws that elected officials favor. Will's argument, however, is inconsistent with traditional conservative appeals to judicial deference.

Reliable FactCheck.Org Dissects Obama's Tuesday Night News Conference

FactCheck.Org is a great website for accurate and nonpartisan reporting and information. Here's the organization's take on Obama's recent news conference:

He said his budget projections are based on economic assumptions that “are perfectly consistent with what Blue Chip forecasters out there are saying.” Not true. The average projection by leading private economists is now for substantially less economic growth than the administration’s forecast assumes.

He said he is reducing “nondefense discretionary spending” to less than it was under the past four presidents. Not true. His own forecast for the final budget of his four-year term puts this figure higher than in many years under Reagan, Clinton or either Bush.

He said he was “angry” about “inexcusable” bonuses paid to AIG executives. But he glossed over the fact that his own aides insisted on watering down a Senate-passed amendment that might have prevented payment of such bonuses.

He repeated that his budget is projected to cut the federal deficit in half by the end of his term. That’s true, but deficits also are projected to shoot up again later unless big policy changes are made.

Be sure to read the full analysis.

Definite Candidate for Wimp of the Year Award: Vermont Governor Jim Douglas

Vermont Governor Jim Douglas has jumped ahead of the pack in the race for the "Wimp of the Year" award. Douglas surpassed the competition as a result of his lack of courage on the issue of same-sex marriage.

Currently, Vermont recognizes civil unions, but the state Senate voted to legalize same-sex marriage earlier this week. The House will consider the measure later this week, and most reports indicate that the proposal will likely receive enough votes.

Douglas, however, has threatened to veto any measure that legalizes same-sex marriage. His spokesperson explained the governor's strained position:

Governor Douglas agrees with President Obama that marriage is between a man and a woman. He supports Vermont's current civil union law, which provides equal rights, benefits, and responsibilities to Vermonters in civil unions," said the governor's spokeswoman, Dennise Casey.

The governor "believes this bill is a distraction from the important work the legislature needs to do to pass a responsible budget and get our economy going again," Casey added.

This is an utterly wimpy argument. Douglas is a wimp because he chose to hide behind President Obama rather than articulating his own independent argument on the subject. Douglas is also a wimp because he chose to hide behind the economy in order to justify his position -- as if balancing the budget can excuse discrimination. Douglas' has made one of the most pathetic political arguments I have seen all year. Accordingly, Douglas is a strong contender for Wimp of the Year. Congratulations, Governor Jim Douglas of Vermont!

Why Aren't These Things "Distracting"?
Here are some of the other things that Governor Douglas has done (or has planned for this year) that have not caused economic collapse in Vermont.

Vermont Quarter to get a Makeover: "Governor Jim Douglas has nominated Vermont’s 150 miles of the Appalachian Trail to replace the scene of Camel’s Hump and sap buckets as part of the U.S. Mint’s new America’s Beautiful National Parks Quarter Dollar Coin Program."

Public Appearance Schedule of Governor Jim Douglas:

Friday, March 27, 2009
6:00 p.m. Annual Green-Up Poster Contest Awards Banquet, Capitol Plaza Hotel & Conference Center, Montpelier

Saturday, March 28, 2009
10:00 a.m. Poultney Maple Fest Weekend Tree Tapping, Green Mountain College, Poultney

11:00 a.m.-4:00 p.m. Tour of Sugar Houses for Maple Open House Weekend, Locations to be Announced

6:00 p.m. Vermont Trappers Association Annual Banquet, Montpelier Elks Club, Montpelier

Governor Douglas has time to hang out at a tree tapping, go on a tour of sugar houses and attend a poster contest banquet, but he thinks that debating civil rights is too distracting.

Related Reading on Dissenting Justice:

It's Official: Vermont Governor Jim Douglas Formally Announces His Intent to Veto Same-Sex Marriage Measure, If Passed

A Sound Position: President Obama Questions the Constitutionality of the AIG Bonus Tax

During his interview on 60 Minutes, President Obama questioned the legality of the AIG bonus tax that recently passed in the House of Representatives. Earlier, several members of his administration publicly opposed the measure, which strongly suggested that the President would not endorse it as well.

Although President Obama has strongly voiced his disagreement with Wall Street excess -- including the bonuses -- he has not matched these words with actions. The President declined to include provisions that prohibit bonus payments by TARP participants in the regulations that he and Geithner promoted in February. Furthermore, it has become abundantly clear that the Obama administration pressured Senator Chris Dodd to delete language in his amendment to the stimulus package that prohibits the payment of bonuses by TARP participants, which would have given the measure retroactive application.

Prohibiting Bonuses by TARP Participants
I have argued here and elsewhere that the House tax measure conflicts with fundamental principles of our legal system. The tax singles out a group of individuals and imposes a penalty upon them for already completed activity that was and which remains legal. The bonus tax is also one of the clearest examples of legislation that derives from anger and rage -- rather than calm deliberation. Congressional shenanigans are not the answer to corporate shenanigans.

If the public wants the government to prevent TARP participants from paying bonuses, then that discussion should take place openly. If the President believes that this is not a good idea, he should use his famed communication skills to educate the public -- rather than joining the circus of feigned outrage.

In the corporate sector, bonuses are merely an extension of one's salary; they operate as deferred compensation. Many lay people, however, view them as "perks" or mere handouts. This view probably explains much of the populist fervor.

Legislation Under Fire
The public has every right to demand limits on the use of tax revenue, and it would be perfectly legal to prohibit bonus payments by TARP participants before the actual payments take place. The House measure, however, is a blatant example of opportunistic, emotion-driven, and likely unlawful legislation. It is cut from the same cloth as the dreadful Terri Schiavo statute that shamelessly attempted to undo nearly a decade of litigation in Florida which allowed Schiavo to refuse medical treatment and die with dignity -- a basic constitutional right.

When lawmakers ignore the law and side with the passions of the moment, they often produce unsound and illegal legislation. President Obama has taken the correct position on the legality of the bonus tax. Nevertheless, in an effort to maintain his populist credentials, Obama has done a poor job educating the public about his perspective on bonus payments. Hopefully, he will start discussing that matter soon, so that any legislative response to the subject will rest on solid policy, rather than artificial outrage.

Ayatollah Ali Khamenei Rejects Obama's Video Greeting to Iran, Says No "Change," No Deal

Ayatollah Ali Khamenei has rejected President Obama's videotaped overture to the country. President Obama released the message on Nowruz - Iran's new year celebration. In his message, the President stated that:

[I]n this season of new beginnings I would like to speak clearly to Iran's leaders. We have serious differences that have grown over time. My administration is now committed to diplomacy that addresses the full range of issues before us, and to pursuing constructive ties among the United States, Iran and the international community. This process will not be advanced by threats. We seek instead engagement that is honest and grounded in mutual respect.

You, too, have a choice. The United States wants the Islamic Republic of Iran to take its rightful place in the community of nations. You have that right -- but it comes with real responsibilities, and that place cannot be reached through terror or arms, but rather through peaceful actions that demonstrate the true greatness of the Iranian people and civilization. And the measure of that greatness is not the capacity to destroy, it is your demonstrated ability to build and create.

Iran's Supreme Leader Ayatollah Ali Khamenei has responded to the video with great skepticism. According to an Associated Press report:

In his most direct assessment of Obama and prospects for better ties, Khamenei said there will be no change between the two countries unless the American president puts an end to U.S. hostility toward Iran and brings "real changes" in foreign policy.

"They chant the slogan of change but no change is seen in practice. We haven't seen any change," Khamenei said in a speech before a crowd of tens of thousands in the northeastern holy city of Mashhad. . . .

"He (Obama) insulted the Islamic Republic of Iran from the first day. If you are right that change has come, where is that change? What is the sign of that change? Make it clear for us what has changed."

Still, Khamenei left the door open to better ties with America, saying "should you change, our behavior will change too."

I cannot say that this surprises me.

President Obama Is Not Rushing Behind Bonus Tax Plan

This New York Times story is consistent with Senator Dodd's portrayal of the White House's reticent position on the regulation of bonuses:

The White House stopped short on Friday of endorsing legislation to severely tax bonuses paid to executives of companies that accepted taxpayer bailout funds.

Administration officials said instead that President Obama would assess the potential effect of the bill that emerged from Congress on efforts to stabilize the financial system.

At the same time, as Wall Street executives anxiously pondered the ramifications of the measure quickly passed by the House this week, some Senate Republicans began to voice opposition to the legislation, saying it was hasty and abusive.

For the record, I have deep legal concerns with the bonus tax. The retroactive application after AIG has made the payments, the clear targeting of AIG executives, the absolute hysteria over the issue, and resistance by Congress and the President to measures that would have prevented the bonus payments make this law highly suspicious from a legal standpoint.

After I wrote this blog entry, the Wall Street Journal published a similar report.

Oops. . .

Oy vey. . . .

President Barack Obama has apologized to the chairman of the Special Olympics for his late-night talk show quip equating his bowling skills to those of athletes with disabilities.

Appearing on "The Tonight Show" Thursday, the president told host Jay Leno he'd been practicing at the White House's bowling alley but wasn't happy with his score of 129. Then he remarked: "It was like the Special Olympics or something."

The audience laughed, but the White House quickly recognized the blunder. The Special Olympics, founded in 1968, is a global nonprofit organization serving 200 million individuals with intellectual disabilities.

On his way back to Washington on Air Force One, Obama called the chairman of the Special Olympics, Tim Shriver, to say he was sorry - even before the taped program aired late Thursday night.

"He expressed his disappointment and he apologized in a way that was very moving. He expressed that he did not intend to humiliate this population," Shriver said Friday on ABC's "Good Morning America." Obama, Shriver said, wants to have some Special Olympic athletes visit the White House to bowl or play basketball.

More Outrage: Obama Administration Knew About the Bonuses Months Ago

In addition to blocking legislation that would have prevented AIG's bonus payments, the Obama administration actually knew about the pending bonuses months ago from SEC filings and letters from lawmakers demanding action. Great.

Here is the latest, courtesy of the Associated Press (via Yahoo News):

For months, the Obama administration and members of Congress have known that insurance giant AIG was getting ready to pay huge bonuses while living off government bailouts. It wasn't until the money was flowing and news was trickling out to the public that official Washington rose up in anger and vowed to yank the money back.

Why the sudden furor, just weeks after Barack Obama's team paid out $30 billion in additional aid to the company? So far, the administration has been unable to match its actions to Obama's tough rhetoric on executive compensation. And Congress has been unable or unwilling to restrict bonuses for bailout recipients, despite some lawmakers' repeated efforts to do so.

The situation has the White House and Treasury Secretary Timothy Geithner on the defensive. The administration was caught off guard Tuesday trying to explain why Geithner had waited until last Wednesday to call AIG chief executive Edward M. Liddy and demand that the bonus payments be restructured.

Publicly, the White House expressed confidence in Geithner — but still made it clear he was the one responsible for how the matter was handled.

Is Geithner going under the bus? For the record, I think that AIG is not "guilty" of anything -- except for spending money that the government gave it. The government's decision to hand the company a blank check is more blameworthy.

See also:

Misdirected Outrage: Public Should Bash the Feds for Giving AIG a "Blank Check"

Sincere or False Outrage? The Obama Administration Smacks Down AIG

Misdirected Outrage: Public Should Bash the Feds for Giving AIG a "Blank Check"

The moralistic grandstanding from all sides of the political spectrum over AIG is nauseating to say the least. After hearing members of Congress propose some very questionable "legal" measures to recoup the $160 million in bonuses AIG paid some of its executives, I am convinced that AIG is the new Saddam Hussein. It is the leader of a financial "axis of evil." As with Iraq, the U.S. needs a smokescreen to mask its own bad decisions and complicity surrounding AIG and other financial institutions and to justify improper remedies for those mistakes. Get ready for a new round of "shock and awe."

Saddam Hussein, Iraq and the U.S.
Long before Bush I's Iraq War, the U.S. covertly (and perhaps illegally) supplied Hussein with weapons and intelligence data -- not because he was such a good guy, but because the government wanted to sponsor his eight-year bloody war against U.S. nemesis (and former regional buddy) Iran. Later, Hussein's own corruption and destabilizing behavior created an excuse for the U.S. to turn against its friend and to engage in imperialistic military action.

The "weapons of mass destruction" mantra became the rallying cry of the war machine. Absent from the political discourse, however, was any sustained conversation about the shady role the U.S. played in empowering Hussein, including tacitly supporting his prior use of banned chemical weapons. The construction of Hussein as an evil dictator with horrible weapons (presumably directed at the U.S.) allowed the government to conceal its own role in making him a supposedly dangerous individual.

Outrage Over Bonuses Masks Government's Role As AIG's Enabler
The Government Failed to Enact Reasonable Regulations to Protect the Investing Public. The U.S. propped up AIG long before the bailout. During the housing boom, AIG made billions of dollars insuring companies' investment risks with instruments known as "credit default swaps." The government, however, failed to regulate these instruments as "insurance," but instead treated them as securities.

Federal law requires insurance companies (and commercial banks) to maintain a certain level of "reserves" proportional to their outstanding risk portfolio. These reserve requirements protect the companies and the public by making sure that the companies can actually cover the risks they insure. These requirements, however, do not apply to investment instruments -- even if the investment instruments effectively operate as insurance and are issued by insurance companies.

AIG made enormous profits during the housing boom because mortgage-related financial instruments proved valuable as housing prices soared, home lending was robust and easy, and home values were skyrocketing. But AIG insured many extremely risky mortgage-backed securities that were formed by bundling subprime and other risky mortgage instruments. When the housing/lending party ended and homeowners started defaulting on their loans, AIG had to cover the losses of those companies with investments it insured.

AIG began losing billions of dollars, but it did not have the reserves to cover its outstanding risk portfolio. To save AIG -- and companies with investments it insured -- the government stepped in to salvage it. To date, AIG has received $170 billion in bailout assistance.

The Government Failed to Place Necessary Constraints on the Use of TARP Funds. During debates over the appropriateness of the bailout, many members of Congress stressed the need for accountability, transparency, and assistance to homeowners. But Congress passed legislation that gave the Treasury Department wide discretion to determine how companies used the money.

In January, some Democrats and Republicans in Congress threatened to block the release of the second $350 billion installment of TARP funds because they wanted more specifics concerning and restraints on the use of the funds. In response, President-Elect Obama marched to Capitol Hill and promised to veto such action. Congress released the funds after the President's veto threat -- an action that would have politically damaged the Democrats.

After his inauguration, President Obama came up with his own plan to create transparency in the use of TARP funds and to prevent wasteful practices among participants in the program. Most industry experts and news media, however, described Obama's regulations as being absolutely toothless. For example, it did not apply retroactively to companies that had already received TARP assistance.

Senator Dodd -- himself a recipient of millions of dollars in campaign donations from the financial sector -- proposed an amendment to the stimulus package that would have done much more than Obama's regulations to constrain the use of TARP funds. Specifically, Dodd's amendment would have severely restrained the ability of TARP recipients to pay executive bonuses, and it would have applied retroactively to companies like AIG that had already received TARP funds.

After the measure passed in the Senate, President Obama, Treasury Secretary Geithner and Economic Policy Advisor Larry Summers expressed disagreement with the provision, which exceeded the constraints in the regulation that Obama and Geithner had already created. At the time, The Hill published an in-depth report on the Obama administration's disagreement with Dodd's effort to constrain use of TARP funds.

Obama's Senior Advior David Axelrod stated that the administration would have a "dialogue" with Dodd in order to "come up with a good approach," an odd position to take given that the measure had already passed in the Senate. Perhaps Axelrod's statement was an indication of things to occur because the bill that emerged from the conference committee did not contain the retroactivity portion of Dodd's amendment and specifically stated that the bonus and salary restrictions did not apply to any employee contract that predated the passage of the statute.

Dodd denies agreeing to the change regarding retroactivity -- even though he voted for the stimulus package. Whether he did or not, it is clear that the Obama administration negotiated limitations on regulations that would have prevented payment of the very bonuses that Obama now finds so outrageous.

Public Will Be Duped Yet Again
The government, including some of its most outraged leaders, failed to regulate credit default swaps, and it resisted efforts to place stronger conditions upon the receipt and use of TARP funds. Now that AIG has become a political embarrassment for its enabler, the enabler is outraged. Regime change -- or at least "sanctions" -- will definitely follow.

Despite the trail of events that show governmental complicity in AIG's profitable-then-costly behavior, the government is skillfully exploiting populist opposition to corporate excess in order to mask its own actions that enabled AIG to transfer money from taxpayers to its executives and to avoid the consequences of its own financial recklessness.

Similarly, the Bush Administration manipulated the country's fear of terrorism and anger over the 9/11 attacks in order to justify waging a war against Hussein whom the U.S. had previously fed arms and other assistance so that Iraq could battle Iran, which had fallen into disfavor with the U.S.

Rather than scrutinizing the government's wrongful conduct, the public is once again falling for the rhetoric and smokescreen. Instead of focusing on AIG, voters should direct their attention to AIG's enabler: the U.S. government. The government essentially gave AIG a blank check. That action should anger the public more than AIG's subsequent use of the money.

Update: Glenn Greenwald is covering the Treasury Department's attempt to blame Dodd when actually the Obama administration demanded that Congress drop the retroactivity clause. Apparently, the New York Times is digging into the matter as well. The administration's "outrage" could potentially become an embarrassment itself.

Sincere or False Outrage? The Obama Administration Smacks Down AIG

The federal government decided to include billions of dollars in earmarks in the recently approved omnibus budget. The federal government decided to give AIG billions of dollars without a sincere effort to regulate executive compensation.

The price of the earmarks dwarfs the value of AIG's bonuses, but the Obama administration told critics of earmarks that the budget was "last year's" business. The banking bailout -- or TARP -- was actually enacted last year, unlike the omnibus budget. As you witness the federal government condemn AIG, consider the source of the outrage.

Prior to his inauguration, President Obama met with Democrats in Congress and threatened to veto any bills that placed tougher restrictions upon the usage of TARP funds. Some Democrats, seeking greater oversight surrounding the distribution and use of TARP assistance, proposed measures that would govern the second distribution of $350 billion in federal funds for the program. Now, the White House worries that voter disenchantment with banks and bailouts will kill public support for the President's other initiatives.

Recently, a Treasury Department official testified before Congress and urged lawmakers not to "micromanage" banks. But now, the Treasury Department is outraged over AIG's bonus structure. Dictating executive compensation probably qualifies as "micromanagement."

Is the federal government's sudden outrage sincere or false?

Update: Obama is trying to negate the bonuses, paid with last year's budget.

Fundamentals of the Economy Are Sound -- Really?

During the presidential campaign, Senator John McCain said that the fundamentals of the economy were sound. This sent the media and Obama into orbit. Today and earlier this week, however, President Obama and Christina Romer -- Chair of Obama's Council of Economic Advisors -- basically said the same thing. Jake Tapper's Political Punch blog has more details.

Romer, for example said:

"Of course, the fundamentals are sound," Romer said on Meet the Press, "in the sense that the American workers are sound. We have a good capital stock, we have good technology. We know that, temporarily, we're in a mess, right? We have seen huge job loss, we've seen very large falls in GDP. Certainly in the short run, we're in a bad situation."

But Obama beat down McCain as being "out of touch" for making the same comment:

"We just woke up to news of financial disaster, and this morning he said that the fundamentals of the economy are still strong," Obama said on September 15 in Grand Junction, Colo. "Sen. McCain - what economy are you talking about? "What’s more fundamental than the ability to find a job that pays the bills and can raise a family? What’s more fundamental than knowing that your life savings is secure, and that you can retire with dignity? What’s more fundamental than knowing that you’ll have a roof over your head at the end of the day?"

And earlier last week, Obama himself said that:

"[I]f we are keeping focused on all the fundamentally sound aspects of our economy, all the outstanding companies, workers, all the innovation and dynamism in this economy, then we're going to get through this. And I'm very confident about that."

Even Huffington Post, which beat up McCain for saying the fundamentals of the economy were sound last September, has published an article showing the striking similarities between Romer's and McCain's statements. Since the time McCain made his comments, the stock market has plunged, unemployment has soared, foreclosures have climbed to record highs, and GDP is in free fall. But now, the fundamentals of the economy are sound when they were not last Fall. Amazing stuff.

Check out this "just posted" item: Sincere or False Outrage? The Obama Administration Smacks Down AIG

Change = Same?

Today, the Department of Justice announced that it would no longer rely upon a individual's "enemy combatant" status in order to justify indefinite detention by the President. Instead it will advance arguments rooted in the international "law of war" and the Authorization for Use of Military Force passed by Congress.

Although discarding the "enemy combatant" label makes for great political soundbite, at present, it does not materially alter the government's treatment of Al Qaeda members and other terrorism suspects, nor has it changed the government's legal position in lawsuits brought by former detainees alleging maltreatment by the government.

The government described its rhetorical shift in a formal statement and in a legal brief submitted in opposition to a lawsuit against Donald Rumsfeld and other officials by former detainees. The plaintiffs allege that they were tortured and deprived of religious freedom. DOJ argues that the individuals have no enforceable rights against the United States and that even if they had such rights, the defendants are immune from liability.

The government will no longer claim broad authority over "enemy combatants," but will instead use a functional test to determine whether it can indefinitely detain suspects and deprive them of rights that they might otherwise possess. A closer look at the criteria, however, shows very little difference between the "new" standard and the old one used by the Bush administration.

The SCOTUS blog has the details:

Here is how [the Bush] Administration defined ["enemy combatant"]: "At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces."

Here is the definition of detention authority, without the label "enemy combatant," that the Obama Administration outlined Friday: "The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the united States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces."

SCOTUS also sets forth out the "differences" between Bush and Obama on this issue:

First, the new version requires proof of “substantial” support of Taliban or
Al-Qaeda forces, while the former version required proof of “direct” support of such forces.

Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partners, while the former version only required “support.”

And, third, the new version applies to a person who “directly” supported hositilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.

The Center for Constitutional Rights, which represents plaintiffs in the litigation, does not mince words. CCR argues that DOJ has:

[A]dopted almost the same standard the Bush administration used to detain people
without charge – with one change, the addition of the word “substantially”
before the word “supported.” This is really a case of old wine in new bottles.

This sounds like the "extraordinary rendition"/"rendition" debate.

PS: Bush also advanced arguments based on the law of war and the AUMF. Also, it does not appear that DOJ rejects Bush's argument that Article II confers detention authority upon the President; instead, it seems that it has simply declined to assert this argument.

Third Time's the Charm? Not Really: Another Treasury Nominee Bails Out

A third Treasury Department nominee has dropped out of the process, according to ABC News:

Democratic sources say that H. Rodgin Cohen, a partner in the New York law firm Sullivan & Cromwell LLP, and the leading candidate for Deputy Treasury Secretary, has withdrawn from consideration.

It's the third withdrawal of a top Treasury Department staff pick in less than a week. I reported last week that Cohen was likely to be officially nominated for the Deputy Treasury Secretary position.

Cohen has been a counsel to just about every major player on Wall Street, which perhaps complicated his nomination.

Now, the nomination is off.

I imagine scoring a job at the Treasury Department is losing some its past luster. Just think of the job description: "Extremely long hours, enormous public pressure to succeed, deep uncertainty regarding the potential success of your endeavors, but failure to accomplish your goals would cause a global economic collapse."

EXTREME IRONY ALERT: Rendell Says Steele Is Toast Because Republican Leaders Do Not Want A "Big Tent"

Earlier today I argued that Michael Steele's apologies to social conservatives reveal deep divisions in the Republican Party. Republicans are so divided that they are beating each other up and engaging in the same kind of suicidal behavior (like a rumored no-confidence vote for Steele) that plagued Democrats in the past.

Now, Ed Rendell, the Democratic Governor of Pennsylvania, has tossed some "bait" towards the Republicans. Rendell says that Steele's "days are numbered" because Republican Party leaders do not "want a big tent." If Republicans take the bait and get even more agitated over Steele and the Democrats, then they will confirm that they are like the fractured DNC of the 1980s.

EXTREME IRONY ALERT: During the Democratic primaries, Rendell -- a former Chair of the DNC -- stated that Barack Obama would have a tough time winning the Pennsylvania primary because "there are some whites who are probably not ready to vote for an African-American." Pennsylvania has a closed primary (i.e., only Democrats can vote).

Related Readings on Dissenting Justice:

A Liberal Democrat's Take on Steele's Apologies: Imploding GOP Looks Like Democrats of the Past

More on the Man of Steele: Can the Unexpected Hip-Hopster Bring People of Color to the GOP?

Man of Steele: RNC Chair Serves Major "Swagger" During Recent Interview

From the "Post-Racial" Vault: Slate Magazine Asks Whether Michael Steele Is Barack Obama's "Evil Twin"

A Black Progressive Law Professor Responds to News That Michael Steele Will Lead the GOP

Evening Updates: Obama a Moderate? Former GITMO Detainee Now Taliban Military Leader, Plus More . . .

Obama Is a "New Democrat"
According to Politico.Com -- DC's gossipy political newspaper -- Obama told the moderate "New Democratic Coalition" that he is one of the gang:

“I am a New Democrat,” he told the New Democrat Coalition, according to two sources at the White House session. . . .

He said he “supports free and fair trade,” according to one attendee, and noted that he was “very concerned about a return to protectionism.”

Obama made similar comments last month during his trip to Canada – America’s largest trading partner – and has shied away from the NAFTA-bashing he engaged in during last year’s Democratic primary.

Last year, calling Obama a "moderate" would have caused leftwing bloggers to spew molten lava (I have the scars to prove it). Times have changed. I do not see him as a fiscal conservative. He is cutting taxes and spending -- just like Bush!


Congress Spends Big, But Gives Taxpayers a Few Coins Back!
After passing an omnibus budget laden with billions of dollars in earmarks, Congress voted to forgo its cost of living salary adjustment next year.


Former GITMO Detainee Now Taliban Commander of Southern Tier Forces in Afghanistan
Great. . . .

The Taliban's new top operations officer in southern Afghanistan had been a prisoner at the Guantanamo Bay detention center, the latest example of a freed detainee who took a militant leadership role and a potential complication for the Obama administration's efforts to close the prison. U.S. authorities handed over the detainee to the Afghan government, which in turn released him, according to Pentagon and CIA officials.

Cop Poses as a Terminally Ill Cancer Patient?
You betcha -- to stop a physician-assisted suicide ring. Yes - ring. Group officials say they only gave out information on how to end one's life. The State of Georgia says otherwise.

Will Defenders of the "Kinder, Gentler" Rendition" Beat Up the United Nations?

[Check out this "just added" essay: Updates: Obama a Moderate? Former GITMO Detainee Now Taliban Military Leader, Georgia Busts Assisted-Suicide Ring. . . ]

A United Nations human rights official unambiguously stated that "change" in the United States will not alter the organization's scrutiny of U.S. antiterrrorism practices. The statement came as UN investigators announced the start of a probe into CIA rendition flights and secret detention.

UN Official Promises Not To Let New Administration "Off the Hook"
Martin Scheinin, Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, made the following statement concerning human rights enforcement in the Obama administration: "We will not let the United States off the hook simply because of the change in administration . . . . It is certainly too early to say that rendition will have stopped. . . ."

With respect to President Obama's executive orders closing CIA prisons and mandating that interrogators comply with antitorture laws, Scheinin was guardedly optimistic: "We can at least hope this is a real change that will put an end to the most horrendous forms of extraordinary renditions. . . ."

Obama and Rendition
The subject of rendition led to international condemnation of the Bush administration. This topic, however, also led to debate concerning the Obama administration after the L.A. Times published a story which reported that Obama would continue the practice of rendition -- despite having ordered the end of torture and the closure of CIA prisons.

Many liberals rushed to defend the government through formalistic arguments, which parsed Obama's "rendition" and Bush's "extraordinary rendition." Although the two concepts are in fact distinct, in this particular setting, the differences are more illusory than real.

Critics argued that Bush used extraordinary rendition to abduct individuals and send them to indefinite detention and to torture in other nations. Because Obama's executive orders eliminate these procedures, many liberals portrayed the L.A. Times article as a piece of alarmist sophistry.

Liberal defenders of rendition, however, failed to present a comprehensive picture of the human rights community's critiques of the Bush administration. Certainly, the torture and prolonged detention elements of rendition occupied center stage, but many liberals also contested the lack of judicial or administrative review of the CIA's decision to transfer (really "to abduct") individuals and the lack of access to counsel.

Rendition Versus Extradition
Some liberals seemingly tried to sanitize or at least to diminish the problems associated with "rendition" by linking it to accepted forms of inter-jurisdictional transfers like "extradition." While both of these concepts admittedly involve the involuntary movement of people across state or national boundaries, any effort -- intentional or otherwise -- to equate the CIA's rendition program with ordinary extradition is misguided.

Scheinin's statements on the subject confirm that material differences exist between rendition (extraordinary or otherwise) and extradition. According to Reuters, Scheninin:

Hope[s] the Obama administration's policy would at least mean suspects abducted by U.S. agents are tried in America. But he stressed that instead of nabbing suspects abroad and then trying them on one's home soil, international law says countries should seek extraditions through legal channels.

While many individuals have dismissed the due process concerns raised by rendition (whether or not it results in torture or longterm detention), Sheinin's comments (at least as summarized by Reuters) demonstrate that there are international law issues that arise from the CIA abductions - at least when they take place in countries that have an extradition agreement with the United States. Other civil liberties advocates have also criticized using rendition as a substitute for the formalized extradition process (see Marjorie Cohn and Michael Rattner comments).

I am trying to locate Sheinin's exact quotation. If I find it, I will post it. But Sheinin has made statements preferring extradition to rendition in the past. In a 2007 report on rendition, for example, he concluded that: "[T]he removal of a person outside the legally prescribed procedures of extradition or deportation amounts to an unlawful detention in violation of Article 9 (1) of the International Covenant on Civil and Political Rights." Here is a link to the International Covenant on Civil and Political Rights.

The 2007 report also expresses grave concern with rendition for the purpose of interrogation or detention (which increases the likelihood of torture); it expresses less concern with "rendition to justice" (i.e., to transfer an individual to stand trial for an alleged crime). During his confirmation hearings, however, Leon Panetta indicated that the U.S. could continue rendition for interrogation and prosecution.

Related Readings on Dissenting Justice:

Obama's "Interesting" Comments About Rendition

Rendition, Secrecy and Torture: Inseparable?

Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program

Obama, Bush, Science and Politics

Robert P. George and Eric Cohen have an interesting take on Obama's reversal of Bush's stem cell policy. George and Cohen argue that Obama's announcement that he is "taking politics out of science" is misleading because:

[T]he Obama policy is itself blatantly political. It is red meat to his Bush-hating base, yet pays no more than lip service to recent scientific breakthroughs that make possible the production of cells that are biologically equivalent to embryonic stem cells without the need to create or kill human embryos.

That politicians engage in politics -- even as they claim to decry politics -- should not come as a shock to most people. So, I agree that Obama's reversal of Bush's policy and the language he used to describe the decision were both political.

But one could say the same thing of Bush's position. While Obama undoubtedly responded to members of his liberal base, Bush catered to members of his conservative base who oppose abortion. For better or worse, the stem-cell controversy implicates the same political conflict as the abortion debate. All sides on these issues can disclaim politics and rest their views on science or ethics. But when presidents make policy or respond to vocal and organized constituents, these matters inevitably become part of political discourse and conflict.

George and Cohen, however, portray Bush's policy as a politically neutral effort to balance science and ethics:

Mr. Obama's executive order overturned an attempt by President George W. Bush in 2001 to do justice to both the promise of stem-cell science and the demands of ethics. The Bush policy was to allow the government to fund research on existing embryonic stem-cell lines, where the embryos in question had already been destroyed. But it would not fund, or in any way incentivize, the ongoing destruction of human embryos.

Bush's policy can be understood as balancing science and ethics -- but it also responded to the demands and ideology of his constituents. This description applies to Obama's approach as well.

Finally -- A Bipartisan Issue: Hypocrisy Regarding Earmarks!

Both sides of the earmark debate are engaging in the usual shenanigans that define Washington. And in terms of political shenanigans, hypocrisy is a repeat offender.

Obama Administration: We'll Get to That Later
Appearing on weekend news programming, White House Budget Director Peter Orszag reiterated the Obama administration's position that the President will try to curb earmarks after the omnibus has passed. The White House has seized upon the fact that the bill was negotiated late last year in order to justify its failure to challenge the nearly 9000 earmarks it contains.

Sorry guys, but this one does not pass the laugh test. The bill was structured last year, but Obama, who campaigned on earmark reform (last year), also co-sponsored a $7.7 million earmark while he was still Senator (last year). Thus, even though he campaigned against earmarks, Obama still sponsored one worth millions of dollars. Now that he is President, however, Obama has deleted his name from the list of sponsors. The spending item remains in the budget. [Note: The Obama administration denies that the spending provision is an earmark. Please read the Congressional Quarterly article to see this argument dissected.]

Also, pork spending looks pretty bad when the government is telling people to tighten their belts, job losses and home foreclosures are soaring, and banks have received a trillion dollars in public assistance (also known as "welfare"). It seems that Congress cannot live up to the demands it makes of others.

Republicans: Do As We Say Not As We Do
Although Republicans sponsor 6 of the 10 largest earmarks in the bill and about 40 percent of the total number, the GOP has very loudly opposed the handouts. John McCain has vehemently contested earmarks and wants legislative or executive action on the subject. To his credit, however, McCain has not sponsored an earmark.

But some Republicans were "for eamarks before they were against them." Senator Kay Bailey Hutchison of Texas, for example, voted for a failed amendment to the omnibus bill that would have deleted all of the earmarks -- including the $243 million in earmarks she sponsored.

Another Republican, Senator Jon Kyl of Arizona, bashed the earmark-laden omnibus bill and Obama's proposed budget during a Sunday interview on Fox News. Kyl, however, stumbled when Fox's Chris Wallace asked him to respond to data showing that he sponsored $118 million in earmarks.

Even some of the most ardent fiscal conservatives have sponsored earmarks. Texas Representative Ron Paul recently accused fellow Republicans of being "born-again budget conservatives" for condemning Obama's deficit spending, while having previously voted for Bush's deficit-enhancing budgets. Given Paul's zeal for "limited government," it is not surprising that he denounced and voted against the omnibus bill." It is surprising, however, that he voted against the 22 earmarks worth $96.1 million that he sponsored.

Earmarks, Congressional Power and Transparency
Because Congress has the constitutional power to tax and spend, it can certainly pass earmarks. The problem with earmarks, however, is that the process behind them lacks transparency. Often, no sponsor is listed, and it appears that sponsors can remove their names (as Obama recently did). Congress does not subject these spending items to debate, and it probably never looks to see whether the earmarks present a conflict of interest.

For these reasons, Obama correctly challenged earmarks as a candidate. His focus on earmarks led to thunderous criticism over Alaska's "Bridge to Nowhere," which Democrats used to portray Sarah Palin as a fiscal hypocrite. After all of last year's political posturing, postponing the issue until after the ominibus bill passes will only invite Republican criticism.

What Is Really Going on Here?
Truthfully, both parties love earmarks. They help candidates "win points" back home, and can serve as the "quid pro quo" to push through difficult legislation and avoid budget battles. Also, in the absence of oversight by Congress, unelected members of the executive agencies would have much more control over the direction of spending. For these reasons, most members of both parties strongly support earmarks. So, to a great extent, the current debate over earmarks is simply a smokescreen to hide the parties' political gaming.

Republicans are using the earmark controversy to "shame" Obama for abandoning his anti-earmark campaign rhetoric and to portray him and the Democrats as "big spenders" and as fiscally reckless. They also want to stretch out to budgeting process in order to gain political concessions, to test their political power, and to undermine the perceived effectiveness of the President.

Obama campaigned on earmark reform in order to construct his ubiquitous "change" narrative. Now that the campaign is over, he must deal with reality and specifics. He and most Democrats oppose renegotiation of the budget because the longer it remains unpassed, the greater the risk of political embarrassment and the need to give more concessions to the Republicans. A delay in passage of the bill could cause a governmental "shutdown" (which is more symbolic than anything else) and would reveal vulnerability among Democrats, despite their electoral sweep.

Both parties are simply playing games on the issue. And as is often the case, these games have completely overshadowed honest discussions over the substantive content of the bill and the pros and cons of earmark reform. Washington is changing nonetheless: it was 70 degrees over the weekend. Spring has arrived!

PS: Voters also must think about their own hypocrisy. They want politicians to denounce earmarks -- but clearly, they also want earmarks and re-elect politicians who "bring home the bacon."

New Medical Pot Mystery

President Obama indicated during his campaign that he disfavored the prosecution of medical pot usage and distribution. He also said he would not use his office to "circumvent" state law on the issue. After he became president, however, the DEA raided medical pot dispensaries in California, which led to political protests.

Recently, Attorney General Eric Holder caused a major buzz among medical pot advocates when he announced that Obama's campaign promise had already become policy. According to the L.A. Times, two days after Holder's comment, the United States Attorney for the Central District of California (which includes Los Angeles) directed prosecutors not to pursue any more criminal charges against medical pot dispensaries. A few days later he abruptly ordered prosecutors to resume business as usual:

The U.S. attorney in Los Angeles sent a confidential memo to prosecutors last week ordering them to stop filing charges against medical marijuana dispensaries, then abruptly lifted the ban on Friday, according to sources familiar with the developments.

U.S. Atty. Thomas P. O'Brien declined comment on what prompted him to issue the directive or to later rescind it.

O'Brien's decision to temporarily halt the prosecutions came two days after remarks by Atty. Gen. Eric Holder, who seemed to imply at a Washington, D.C., press conference that medical marijuana prosecutions would not be a priority for the Justice Department under President Obama.

A Justice Department official said Friday that the attorney general did not direct O'Brien or any other U.S. attorney to alter policies regarding the prosecution of such cases.

My Take
I have always assumed that if Obama moved on this matter, he would do so in a subtle fashion. The original memorandum from the United States Attorney, however, was very open and explicit -- even though it was "confidential" (so confidential that the L.A. Times presumably has a copy of it).

A formal policy of nonenforcement will excite proponents of decriminalization. But an explicit policy would also generate vocal criticism from "law and order" types who fear liberalization of drug laws and who do not agree with a president declining to enforce an entire category of federal criminal law.

Furthermore, the threat of prosecution of medical pot users and distributors could serve as tool for enforcing other crimes -- in particular, nonmedical usage of pot. For that reason, many prosecutors probably do not want an explicit policy of nonenforcement, which would constrain their options unless it included exceptions for certain circumstances. I do not know if this analysis explains the mystery behind the conflicting memoranda, but it seems plausible.

Obama's "Interesting" Comments About Rendition

President Obama recently completed a 35-minute interview with the New York Times. During the interview, Obama addressed several domestic and foreign policy issues. A very wasteful moment occurred when the interviewer asked Obama if he was a "socialist"? When he said "no," the desperate interviewer asked: "Is there anything wrong with saying yes?"

Beyond this frivolous inquiry, however, the interview covered important terrain. Nevertheless, individuals who carefully scrutinize political news will not find a lot of new information in the discussion, but it is still worth reading.

Obama on Rendition
During Obama's interview with the New York Times, the following exchange concerning rendition occurred:

Q. Leon Panetta has said that we’re going to continue renditions, provided we’re not sending people to countries that torture. Why continue them at all?

A. Well, I think that you’re giving a slightly more definitive response than Director Panetta provided, but what I’ll say is this: We are now conducting a review of the rendition policy, there could be situations, and I emphasize – could be – because we haven’t made a determination yet, where let’s say we have a well-known Al Qaeda operative, that doesn’t surface very often, appears in a third country, with whom we don’t have an extradition relationship, or would not be willing to prosecute him, but we think is a very dangerous person. I think we will have to think about how do we deal with that scenario in a way that comports with international law and abides by my very clear edict that we don’t torture, and that we ultimately provide anybody that we’re detaining an opportunity through habeas corpus to answer to charges.

How all that sorts itself out is extremely complicated because it’s not just domestic law its also international law, our relationship with various other entities. And so, again, it will take this year to be able to get all of these procedures in place and on the right footing.

Analysis

I. Obama chided the interviewer for overstating Panetta's position.

Although this is a fair criticism, Panetta strongly indicated during his confirmation hearings that rendition would continue. He said that the government "may very well" transfer individuals to other countries for the purpose of interrogation and that "hopefully" rendition for legal process abroad would also continue. Many press accounts of Panetta's confirmation hearings (see here for example) construed his remarks as indicating that the United States would continue rendition, but that the government would seek diplomatic assurances against torture.

II. Obama would consider rendition of Al Qaeda suspects, so long as international law and his anti-torture rules are followed.

A CIA-sponsored abduction without the consent of the foreign country in which it occurs violates that country's sovereignty. If that country has an extradition treaty with the United States, an unauthorized rendition would invade that country's sovereignty and it could potentially violate the terms of the extradition agreement.

III. Obama states that the U.S. should "ultimately provide" habeas corpus relief to "anybody we are detaining."

This statement conflicts with the Department of Justice position on this issue. DOJ has adhered to the Bush administration's conclusion that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus relief. Accordingly, the United States is already detaining individuals without affording them access to United States courts. If the CIA abducts terrorism suspects and ultimately transfers them to Bagram, these individuals would not qualify for access to the federal courts under DOJ's analysis.

Furthermore, if the government renders Al Qaeda suspects to officials in other countries, these individuals would not have a right to challenge their detention in United States courts because the transfer would place them beyond the custody and jurisdiction of the United States. Also, the United States could not prevent torture of individuals once they are transferred.

Finally, Attorney General Eric Holder and Solicitor General nominee Elena Kagan have both argued that the government could indefinitely detain suspected members of Al Qaeda as "enemy combatants" because the country is at war with the terrorist organization. This reasoning, together with the government's legal argument concerning Bagram detainees, would support the indefinite detention of and denial of habeas corpus to Al Qaeda suspects who are captured through rendition and subsequently held by the United States at Bagram, as opposed to a CIA black site.

Final Thoughts
The Obama administration has indicated that rendition will continue and that it, like Bush, will not utilize rendition to torture. Obama's executive orders close CIA black sites, but they do not close other United States-run facilities, such as Bagram, which can (and already) house terrorism suspects. Because the administration has claimed legal authority to deny habeas corpus relief to Bagram detainees and to detain indefinitely Al Qaeda suspects, Bagram could become the functional equivalent of Guantanamo Bay.

Rendition raises very strong issues concerning a country's sovereignty and an individual's right to a fair process and freedom from torture. For this reason, some human rights activists believe that the CIA must abandon the practice altogether. Many liberals strained to parse the differences between "good" rendition and "bad" extraordinary rendition once it became clear that Obama would continue the practice. Some liberal commentators who initially defended Obama's rendition plans, however, have begun to question the practice (see, e.g., statement of Glenn Greenwald).

Marjorie Cohn, a law professor and human rights advocate, complicates liberal efforts to distinguish the two types of rendition in her persuasive essay which concludes that: "There a slippery slope between ordinary rendition and extraordinary rendition." President Obama's recent comments regarding rendition are very careful, ambiguous and tentative. Rendition, however, raises serious questions that the government and the public must continue to scrutinize and debate.