Ultra Vires

Sandy Levinson Beats Me to the Punch. Again.

Damn, damn, damn, damn. I'm continually trying to think ahead and Sandy Levinson is continually beating me to the punch. This analysis is the example du jour. I had been thinking about this for the last week and planning a big, oh-so-impressive post here on the subject. So much for that.

Good stuff abounds here. I would have missed the bit about appointments to the FISA court, an EXTREMELY important point. I would have missed the reference to Professor Paulsen too. He does a good job on Schmidt as well. (Btw, does anyone have sound evidence that the views in the White House are due to everybody's favorite Nazi intellectual? They seem more a bastardization of Strauss, bent through the forced resignation of Tricky Dick to me.)

For what it's worth I think Friend Levinson is 1000% right on this one. Executive power is what has driven all of Bush's nominations so far and will drive them in the future if - but Heaven forfend - he has another appointment to the Court. I'm with him; here's where the politics and the conlaw line up. The Dems should filibuster Alito and turn the whole debate into a catfight over the 4th amendment and executive power. Done correctly - and I think we can count on Harry Reid and Robert Byrd for that - this is an easy winner. It might not stop Alito, of course, but it would make his nomination - it's bound to look as unprincipled as it will be - a real asset come November.

- Tracy Lightcap

The Ever-Brilliant, Iron-Willed Commander!

When I worked in court administration we always looked forward to receiving what we referred to as the Kim Il-Sung Report, otherwise known as the annual report of the Hawaiian Administrative Office of the Courts. The reason became obvious when you compared the treatment of the Chief Justice of that state in the report to publications about the Ever-Brilliant, Iron-Willed Commander. About the only things missing were smiling children holding bouquets and enemies with the traditional gray faces. Now we get this puff piece on the new CJ.

Ok, I know he's new and there's no reason (yet) to gang up on him, but, really, this kind of panageric is a bit pre-mature. It took 20 years and a lot of work for Rehnquist to earn the same treatment. Let's make Roberts do the same.

- Tracy Lightcap

Proto-Fascism

This editorial is pretty indicative of what we have been hearing concerning Snoopgate in recent days. But, pace Turner and for about the hundredth time, no one doubts the President's power to conduct warrantless searches of foreign agents and, in fact, that is just what FISA provides. The surveillance of US citizens is also permitted, if a warrant is obtained from the secret FISA court. The cases Turner cites are irrelevant to this, as he no doubt knows.

What he is really asserting is that the entire string of cases and statutes controlling the president's powers in the area of foreign intelligence are unconstitutional. I've seen this argument presented a lot in recent days and I'm going to brand it now: it's proto-fascist.

Any fair reading of the constitutional history of this country will conclude that there is simply no area under the Constitution where the president has plenary and exclusive power. Even in the conduct of war, his power is limited, both by the requirement of continuing appropriations and by Congressional oversight of the armed forces. It is most certainly limited by actual statutes passed by Congress and by the Constitution itself; Youngstown Sheet and, more recently, Hamdi show this conclusively.

What Turner is saying is that, despite the 4th amendment and despite the long string of decisions restricting executive power, the president has ALWAYS had war powers that trump both statutes and the Constitution itself. Further, we have no need to worry because these powers are necessary for our national security. All he left out - and others have put it in - is that the administration can be trusted because they are basically moral people who have a special responsibility that is higher than the force of law.

Put simply, this is "Mussolini ha sempre ragione" in American English. No such power exists now or ever has in this country. But, unless we do show a little national spine soon, it will and we can kiss our civil rights goodby when it does. If anyone out there thinks that we can trust future presidents - I won't even mention the Cheney administration here - to stay within self-imposed limits when it comes to intelligence gathering and to resist using the data gathered for political purposes ... well, I have a bridge in Brooklyn that's for sale! Cheap!

-Tracy Lightcap

I'm just not paying attention!

To Rob Perry's blog, that is. If I was I wouldn't have missed this about five state appellate courts beginning RSS feeds. It's old news now, but this is actually a very interesting development.

Unfortunately, vistas of endless news reading stretch in front of us as a result. Ah, well. I knew the job was dangerous when I took it.

- Tracy Lightcap

The Big Untold Story

About executive initiative in the law is outlined in semi-shocking detail in this report. True, nobody should expect a government that has been run by and large by Republicans for the last 25 years to be enthusiastic about enforcing the nation's labor laws. It is revealing, however, just how much blatant violations of the NLRA have come to an accepted way of doing business. When I exclaim about this to my wife, the management labor lawyer, I get a strong denial that her firm ever counsels its clients to break the law, even in the most heated disputes. "Ah," say I, "but you don't try to stop them when they do, do you?" "Not our job." says she, "That's up to the government."

And so it is. But what if the government simply stops enforcing the law with any vigor and the law has no teeth that employers need fear on top of that? Then what is to stop the "R-case" lawyers who advise them from laying out the costs and benefits of following the law? Nothing, of course; they'd see it as part of their obligation and they'd be right. The result has been a bloody casino for labor organizing in the United States and a prime example of how the law can be twisted into its opposite by executive power.

That LOOKS reversable, of course; all you need is a Democratic president who is strong on labor rights. But look at the report. There has been no effort to stiffen the laws since the Carter administration and there the administration opposed it! After awhile, predispositions like this become part of the expected deal between political actors, something everyone lives with, no matter how short they think their end of the stick is. Executive initiative can create that a lot easier then it can turn it around.

- Tracy Lightcap

What? Those Guys!? Nah! Couldn't Be!

Ah, there's nothing like seeing your predelictions confirmed! This post from Digby sums up exactly what this site is about. If ever there was a more blatant interference of executive initiative into the regular workings of the law, I'd sure like to hear about it. And this, as Dig points out, is just the latest. It's hard to keep up with all the ways the Bush Justice Department has subverted legal process. I'll think about trying to keep up with it.

- Tracy Lightcap