How Stupid Are We?

Let's see how long it takes you to solve the following problem, which is currently baffling the D.C. government:

D.C. law provides that, when it's time to release someone from jail, the release shouldn't take place between the hours of 10 pm and 7 am. That makes sense, right? Shoving an inmate out the door at 2:30 in the morning probably isn't the best way to reintegrate him into the community.

The only problem is that the D.C. Attorney General determined that the law is unconstitutional because it results in inmates having to serve a longer time in jail than their sentence -- only a few hours longer, perhaps, but longer nonetheless. And you can't hold people in jail once their sentence is up.

So, the jail is still releasing people in the small hours of the morning, which isn't good.

Hmmm . . . how could we possibly solve this problem?

D.C. Council member Phil Mendelson has an idea that's almost a parody of big government solutions to problems: he's introduced a bill that provides that if the jail releases someone between 10 pm and 7 am, the jail must ensure that the inmate has a ride and housing and street clothes. If that can't be assured, the jail must release the inmate between 7 am and 10 pm.

Oh, no, warns the Attorney General, that will just lead to more unconstitutional holding of inmates after their sentences are up.

Sheesh! I mean really, sheesh! How can we be arguing about this! Is the D.C. government really so dumb that it can't see this has a completely obvious solution?

Here's the solution: let the D.C. Council pass a bill that says that if an inmate's sentence is up between 10 pm and 7 am, the sentence is automatically deemed to be shortened to the point where it is up at 4 pm. In fact, let's apply that rule to any inmate whose sentence expires after 4 pm. We'll let inmates out a few hours early. Everyone gets out no later than 4 pm.

Obviously it makes no difference in terms of giving the inmate an appropriate punishment, and it makes sense in terms of letting them out in a civilized way.

Gosh, that was easy. What's the problem? I am really stunned that this seems to be a big to-do when the solution is so obvious.

And by the way, are sentences really calculated in hours? Why do sentences expire at 2:00 am anyway? I guess perhaps they run from the moment someone is taken into custody, so that if they were arrested at 2:00 am, then the sentence expires at 2:00 am. OK, fine, I guess I can see how the problem arises, but the solution is so simple I really can't believe the D.C. Council is tied up in knots over it.

Yet More Media

It's been a big media week for Law Prof on the Loose. I was in a story on the local FOX news last night. You can see it here.

The story was about all the money DC is paying out in settlements in lawsuits over alleged police and other public misconduct. As usuall, the 5-second snippet of me consists of the most contentious thing I said. They show me saying that defendants are usually happy to string out cases and maybe wear down the plaintiff. Which is true, but my larger point was that defendants, without doing anything wrong or unethical, make decisions about what to do based on cost-benefit analysis. If setttling a case is cheaper than the expected cost of going forward to trial (and bearing in mind the effect on other cases of either course of action), a defendant will settle. There are lots of considerations, but the main one is figuring out the lowest cost course of action.

What is it?

As we conetemplate the 12 to 21 inches of the stuff under which we are buried, there's only one thing on the minds of Washingtonians this morning: snow. But what exactly is snow?

According to unimpeachable sources, snow is just water. That's right, it's made up of "crystals of frozen water, i.e., ice."

It seems a little incredible at first. Sure, water can take on surprisingly different forms -- it can be a gas, a liquid, or a solid. But snow? Snow sure doesn't look like water.

Still, so many sources agree on this point, that I guess I believe it. Probably you do too. But all the same, join me for this little thought experiment:

If I gave you a cup of water and said, "turn this into steam," you'd know what to do.

If I gave you a cup of water and said, "turn this into ice," you'd know what to do.

Now suppose I gave you a cup of water and said, "turn this into snow." Would you even know how to start?

I don't know about you, but asking me to turn water into snow would be like asking me to turn straw into gold. I could fool around with water all day and you'd never see a single snowflake.

A couple feet of the stuff is pretty. But it sure doesn't look like water to me.

Snowmaggedon

D.C. is bracing for a potentially "historic" snowstorm, so last night I thought I'd pop over to the grocery store and pick up food for a couple of days.

So did everybody else. I tried my little neighborhood store, and it was picked clean. No milk, no beef, no chicken. So, I went to the big store, and it was practically the same thing! And lines of 10 or 15 people at every register, each with a cart filled to overflowing. So I tried again this morning. A bit better: but no quarts of milk, no half gallons. I had to pick up a gallon -- and there weren't many of those left. There was some beef and chicken. I took what I could find and counted myself lucky.

Washington can barely deal with two inches of snow, and we're expecting up to two feet. People are skittish like its Y2K all over again.

Weather Wimps

Schools are closed in several DC area counties today because of snow.

Today is Tuesday. It snowed on Saturday. That was more than two full days ago.

Where I come from, if it stopped snowing in the late hours of Sunday (say, at 11:30 pm Sunday), there would be some head-shaking if schools were closed on Monday. If it stopped snowing at 11:30 pm Saturday and schools were closed on Monday, there would be outrage. And if it stopped snowing at 11:30 pm Saturday and schools were still closed on Tuesday, people would get fired.

Another D.C. Vote Debate

Actually, this one isn't exactly a debate, but I will be testifying before a hearing of a D.C. Council's Special Committee tonight at the Wilson building. The hearing starts at 6:30 pm. I'll be on a panel discussing the constitutionality of H.R. 157, the District of Columbia House Voting Rights Act of 2009. As faithful readers know, I think the act is clearly unconstitutional. Others on the panel disagree, so there'll be something like a debate on the topic.

Interestingly, also on the panel will be Patricia M. Wald, former Chief Judge of the District of Columbia Circuit Court of Appeals. It isn't every day that I clash with the judge I clerked for, but she's on record as supporting the constitutionality of the act. So we'll be taking opposing views on the panel

And I might be questioned by Mary Cheh, who is both my colleague and a Council Member. Small world.

D.C. Vote Debate

Faithful readers who want an opportunity to see Law Prof on the Loose in person can watch me debate the DC Voting Rights Act tonight at American University. Details here.

Of course, anyone can see me in person most anytime by just dropping by my office. But this is a more formal opportunity.

And for my position on the DC Voting Right Act, see here. And here. And of course here.

Wasted Energy

D.C. voting rights are progressing on the Hill, but with the unfortunate addition (in the Senate) of provisions voiding the city's gun control laws. Whether you like guns or hate them, the District's gun laws should be made by its elected representatives, not by our non-representative congressional overlords.

Unfortunately, D.C. is salivating so badly for a vote in Congress that our Mayor has actually said that he'd take the gun part if that's what's needed to get the vote.

Doesn't anybody understand that this is all wasted effort? The D.C. Voting Rights Act is patenly, blatantly, utterly unconstitutional. All that's going to happen is that its passage will lead to a 1-2 year court battle, following which it will be overturned unanimously in the Supreme Court. And then the energy necessary to get somewhere on D.C. voting rights will have been expended. Congress will have changed by then -- who knows who'll be in control. It'll be a decade before anything happens on this issue again.

This is our best chance to do something about D.C. voting rights, and we're expending the energy on a bill that won't change a thing because it's unconstitutional. We should seize this chance to do something effective.

D.C. Vote Advances Toward Unconstitutionality

The day when the D.C. Voting Rights Act is finally declared unconstitutional came closer, as the bill passed a Senate committee by a vote of 11-1. Although the bill fell 3 votes short of avoiding a filibuster in the last Congress, the Democrats' big gains in the Senate suggest that the bill could actually become law this year.

Sorry, it's still unconstitutional. Look, this isn't complicated. The Constitution provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." Each representative is required to "be an Inhabitant of that State in which he shall be chosen." D.C. is not a state and Congress can't just pretend that it is. Full analysis here and here.

Besides, the Voting Rights Act is still a half-measure that wouldn't solve the problem of taxation without representation. It would be nice to have a Representative in the House of Representatives, but we need Senators too. Until we have both, the District will continue to be a sad exception to American principles of democracy.

Purple Tunnel of Doom

Wow. I only made some brief comments yesterday about what it was like trying to get to the Purple Gate for the Inauguration. I didn't want to appear churlish or to let anything spoil the happiness of the day. But it seems that I'm hardly the only one who noticed how bad things were -- over 2600 people have joined the Facebook group Survivors of the Purple Tunnel of Doom, apparently founded by one Dave Meyer, and they want an investigation into what went wrong.

In my opinion, it's pretty simple: the organizers had planned well for what would happen once you were inside the gate, but they planned badly for getting people to the gate. The organizers announced where the Purple Gate was (First and Constitution) and where the Purple Ticket Screening Point was (First and Louisiana), but not how to approach the screening point. Purple ticket holders were told to take the Red Line to Judiciary Square, but were not told how to proceed to First and Louisiana from there.

Upon leaving the Metro station, it seemed natrual to proceed to the Screening Point by the shortest route, which was to go to First Street and take a right. No one told us (and given the crowd it was almost impossible to see) that there was a fence that made it impossible to approach the Screening Point along First Street. You had to go down Louisiana.

A couple of simple signs that said "Purple Ticket Holders This Way," or one person with a megaphone, could have made a big, big difference. Instead, there was no one outside the gate with any information. There were no official Inaugural representatives, and the very few police who were present didn't know the crucial information.

Situations like this always come down to information and communication. If people had known that they had to approach the gate on Louisiana, they wouldn't have spent (literally) over an hour uselessly crushed up against people at First and D.

I don't think this was the only problem -- even if everyone had known how to get to the gate, there still might have been the same crush at the gate itself, which, as I remarked yesterday, looked about what it would have looked like if that gate had led to the last ship leaving the dock of a war-torn country. But, in my opinion, the biggest problem was the failure to communicate the crucical information about how to approach the gate.

Well, I still don't want to appear churlish. I made it through the gate, and the real point of the day was that Barack Obama became President! But a couple of signs could have made it a lot better.

In With The New

Nothing could spoil the splendor of President Barack Obama's inauguration -- although the organizers certainly tried their best. My girlfriend and I were among the purple ticket holders who were "especially inconvenienced," as the Post put it -- fairly mild words for what was going on as we approached the gate. We got to within two blocks of the gate by 8:30 am, but didn't get through it until 11:20. If you imagine that the gate led to the last ship leaving the dock of a war-torn country, you'll have some idea of what it was like getting there. We were physically squashed up against other people for most of the time. At least we got in. Some people were apparently turned away.

But it was all worth it. Finally, on the mall, at the constitutional hour of noon, Barack Obama took the oath of office. George Bush is no longer President. And we were there.

I want change. How about today?

Ghost Town

If four million people are showing up in DC for Inauguration, all I can say is they aren't here yet. My girlfriend and I were out and about yesterday, and not only were things not packed, they were kinda empty. There were plenty of seats on the Metro. Hardly anyone in the shops. No problem finding a taxi, a ticket to the movies, or a table at restaurants.

Oh, there was a bit of a crowd of screaming people when Jay-Z showed up at Pentagon City. The Apple Store was packed, and it was tough to move around at the Whole Foods. But I don't think those shoppers were tourists. And they were the only crowd we saw.

Weren't people supposedly renting out their apartments to swarms of eager visitors for $1500 a night with a four-night minimum? I guess those visitors must be staying in the apartments to get their money's worth. Or maybe the Post is right and the Inaugural rental market went bust.

Better Baseball Name

I recently went to see the Washington Nationals, our local baseball team, play in their newly completed park. It's actually quite a good stadium, although I remain skeptical as to whether it was worth the $611 million of public money the District of Columbia paid for it. Do we put up office buildings for other companies that want to locate in DC? I don't think so.

Anyway, having got their new stadium, what the team needs now is a new name. The "Nationals" is not a terrible name, but it's obviously pretty bland and banal. There have been a lot of suggestions, mostly of a comic variety.

My girlfriend and I put our minds to this question and ran through a few more serious possibilities, including bringing back the old Senators (too backward-looking), the Monuments (not suggestive of action), and the Representatives (too long, but could be shortened to the Reps).

But here is the name that we really like and offer to the team:

The Public.

This name captures the idealism of Washington, picks up a key thing that Washington is, or at least should be, about, and identifies the team with its legions of fans. Plus it's one of those cool singular names like the Magic or the Heat.

The more I think about it the more I like it. I'm thinking of the Nationals as the Public from now on.

Go Get Your Gun

I'll be driving up Connecticut Avenue in the good old District of Columbia tonight -- that is, if I can make it through the barrage of gunfire.

Yes, the Highest Court in the Land has decreed that D.C.'s ban on gun ownership is unconstitutional. The Second Amendment ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"), the Court determined, protects an individual right to gun ownership and is not limited to protecting participation in state militias against federal interference, notwithstanding the hint in the amendment's preamble.

As I've mentioned a couple of times, I don't really have a dog in this fight. It seems to me there are good arguments on both sides. As today's majority observes, it's possible to view a preamble as stating a purpose but as not limiting the force of a text's operative provision. There are eighteenth-century indications that the "militia" was all able-bodied males, who were expected to keep their own arms and to report for duty with them when called. There is much writing that hints at an individual right to keep arms for purposes of self-defense, as well as for the defense of the state.

On the other hand, as the dissent observes, that preamble has to mean something. There are indications that "to keep and bear arms" was a specialized term of art meaning to posses arms and use them for military purposes. Some history suggests a particular focus on the possibility that the federal government would interfere with state militias. And in the one prior case that most closely examines the Second Amendment, the Court said that it has the "obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces" and that "It must be interpreted and applied with that end in view."

So I really think this case could have gone either way. That's why it is just so drearily predictable that the case would end up 5-4 with the conservatives on one side and the liberals on the other, and Kennedy, the swing Justice, casting the deciding vote. Couldn't just one of the liberals have decided that, even though liberals like gun control, the Constitution provides an individual right that must be respected? Or couldn't even one of the conservatives have applied the constitutional text with more sensitivity to the intergovernmental purpose suggested by the preamble? It would be nice to think that something other than the Justices' ideological predilictions has at least something to do with determining the outcome. But, I guess not.

Thank goodness, at least, that those conservatives are protecting us from judicial activism!

Fare Wars

If you think the Iraq war has dragged on a long time, you should take a look at the war over D.C. taxicab fares. Ever since I've moved to town, there have been proposals to replace D.C.'s bizarre, antiquated zone system with a meter system -- like every other city has. Every couple of years it is announced that we are switching to meters. But it never actually happens.

The latest news is that a meeting to discuss the current meter proposal had to be canceled -- because the likely attendance was too big for the room!

There's nothing like a D.C. cab ride. Not only is the fare too high, but you have no idea what it's going to be. The zone map traditionally had northeast at the top, making it extra difficult to fathom. It's finally been replaced by a map with north at the top as usual, but I haven't seen the new map in an actual cab yet. There's an extra charge per passenger (what other city has that?), cabbies are allowed to pick up another fare while you're in the cab, and cabbies also love to tack on a "fuel surcharge" or "bag charge" that they might or might not have made up.

I used to wonder why cabbies were so intent on keeping the zone fare. Finally, one of them pointed out to me that if you have a meter, it keeps track of your income. And if it keeps track of your income, you have to pay income tax on it. I'm not accusing all D.C. cabbies of not declaring their income, but that sure does sound like a reason for them to want to stick with their zones.

D.C. Voting Rights Advances; Still Unconstitutional

The House Judiciary Committee voted 21 to 13 to send the D.C. voting rights bill to the House floor. The bill would give the District a vote in the House of Representatives (and in a Missouri-compromise-like provision, also add a seat for Utah, so Democrats and Republicans would each advance by one). It looks like the bill might actually pass the House, although its prospects in the Senate are less clear. It's an exciting moment for the District, where our lack of representation in the Congress has long been a national disgrace.

Unfortunately, as I explained here and here, the bill is blatantly unconstitutional. The Constitution limits representation in Congress to states. The District is not a state. That's really a problem. I know some heavy hitters (including Viet Dinh, Ken Starr, and my former boss, Judge Patricia M. Wald) have endorsed the constitutionality of the bill, but I just don't buy it. Sorry -- I agree that the status of the District is scandalous, but we have to obey the Constitution as we fix it. Maybe it can't even be fixed without a constitutional amendment.

More on D.C. Voting Rights

In yesterday's post, I complained that the proposed D.C. Voting Rights Act, which would give the District (as we locals call it) a vote in the House of Representatives, is unconstitutional. I didn't mention the main argument of those who support the bill: they rely on the "District clause" of the Constitution, which provides that Congress shall have power "To exercise exclusive Legislation in all Cases whatsoever" over the District.

This argument is just too ridiculous. Yes, Congress has a lot of power over the District--all the powers that a state government has over a state--but it still has to obey the rest of the Constitution. Congress can't ban free speech in the District. Congress can't provide cruel and unusual punishment for crimes committed in the District. Congress can't take private property without just compensation in the District. And Congress can't violate voting rights in the District -- in this case, the voting rights of everyone who lives in states, who have a right not to have their representative's votes diluted by the presence of unconstitutional votes in the House.

The pro-Bill forces have some heavy hitters vouching for these arguments, but this one is just silly. That's why I focused on the argument that the District can be treated as a state for other purposes, which at least is in the running.

Taxation without Representation

A House committee has now approved a bill proposing to give the District of Columbia a real vote in the House of Representatives.

What a great idea. District residents (including me, I should disclose) are U.S. citizens. We pay taxes, serve in the armed forces, do our jury duty, and fulfill all the other obligations of citizenship. But we have no representation in Congress. It's a national scandal. Giving us a vote in the House is only a half-measure -- we need Senators, too -- but at least it would be a half-measure in the right direction. We should have representation like anyone else.

There's just one, small problem. The bill is blatantly unconstitutional.

Article I, section 2 of the Constitution provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." D.C. is not a state. So it can't have representation in the House. End of story.

Sorry. No one wants the District to have full voting rights more than I do, but it can't be done in an unconstitutional way.

Congress is relying on opinions from some big legal guns, including Ken Starr, Viet Dinh, and my favorite former federal judge, Patricia M. Wald (I clerked for her). Their opinions point out that courts have approved treating the District as a state in some other contexts. But I just can't believe the Supreme Court would go for it in this context. Representation is basic. The Constitution says that Congress is made up of representatives of the states. D.C. is not a state.

The best solution, as I wrote years ago, is to give the District back to Maryland. The Virginia part of the District was given back to Virginia in the 19th century. If we reunited the District with Maryland, then the city government could handle the city-level functions, the state government could do the state-level functions, and Congress could do the national stuff. The District would be represented at every level. We'd be like any other city in the nation. It works everywhere else, why not here?

That would probably require a constitutional amendment too. But I say, first let's figure out the right structure for the District, and then we can overcome the obstacles to getting there.