The Wonk Room

Right-Wing Judges Suggest Reviving Discredited Bush-Era Detention Policies

The Supreme Court rejected President George W. Bush’s claim that a president may lock up anyone he wants without giving them a meaningful opportunity to prove that they are wrongfully detained on four separate occasions. Nevertheless, a panel of conservative judges on the right-wing D.C. Circuit recently suggested that they will carve a hole in these four decisions that is so big as to render them absolutely meaningless.

One of the most important questions in any lawsuit is what “evidentiary standard” applies. In criminal cases, for example, the government cannot win unless they prove their case “beyond a reasonable doubt,” thus requiring them to present a very convincing case in order to achieve a conviction.

Shortly after the Supreme Court’s last major detention case, all of the judges on the DC federal trial court charged with hearing detainee hearings met and decided that these cases should be decided under a “preponderance of the evidence” standard, and the Justice Department agrees that this is the proper standard. In English, this means that the government may only detain an individual if it can demonstrate that it is more likely than not that the detention is justified.

This week, however, in a case called Al-Adahi v. Obama, a panel of three right-wing appeals court judges claimed that this “preponderance” bar should be replaced by one that is so low that it would be almost impossible for a detainee to be released:

[W]e are aware of no precedents in which eighteenth century English courts adopted a preponderance standard. Even in later statutory habeas cases in this country, that standard was not the norm. For years, in habeas proceedings contesting orders of deportation, the government had to produce only “some evidence to support the order.” In such cases courts did not otherwise “review factual determinations made by the Executive.” In habeas petitions challenging selective service decisions, the government also had the minimal burden of providing “some evidence” to support the decision. Habeas petitions contesting courts martial required the government to show only that the military prisoner had received, in the military tribunal, “full and fair consideration” of the allegations in his habeas petition. And in response to habeas petitions brought after an individual’s arrest, the government had to show only that it had probable cause for the arrest.

Many of the standards listed here would turn detainees’ right to challenge their detention into an empty charade.  If the government, for example, only had to show “some evidence” proving that a person was a terrorist, then even the weakest case against a detainee would be sufficient to keep them locked up forever.

There are, of course, many open legal questions concerning detainees’ habeas rights.  If a person who was previously associated with a terrorist group convincingly reputates that group and its tactics, for example, must they be freed?  One thing is clear, however.  All detainees must be given a meanful opportunity to challenge they detention.  Al-Adahi is simply wrong to suggest that a detainee’s tribunal can be nothing more than a sham.

No, Kagan Does Not Need To Recuse Herself From Health Care Litigation

The constitutional case against health reform is exceptionally weak — even ultraconservatives like Chief Justice Roberts and Justice Scalia reject a narrow vision of the Constitution which would hold this law unconstitutional. So with the cards already laid out against them, the right has decided it needs to stack the deck by eliminating justices who are likely to uphold the law. Today’s Wall Street Journal editorial falsely claiming that Supreme Court nominee Elena Kagan must recuse herself from health care litigation just their first cut at this deck stacking:

Ms. Kagan was unlikely to have been consulted on the merits of health-care policy, and even if she did express an opinion on policy this would not be grounds for recusal. The legal precedents on that are clear.

Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department.

Simply put, the WSJ is not telling the truth about when a judge must recuse themselves. Later in the editorial, the WSJ quotes the federal law governing recusals by judges who are former government officials — judges must recuse themselves from cases where they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy” — but this language does not say what the WSJ wants it to say.

To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court have been appealed, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.

Contrary to the WSJ’s claim, a judge is not required to recuse themselves simply because they have previously expressed an opinion on a legal issue that is now before them in a new case, even if they expressed that opinion while giving advice to a client. Were judges forbidden from deciding issues that they have already expressed opinions on, Justices Scalia and Thomas would be required to recuse themselves from all abortion cases, since they have both previously expressed the opinion that Roe v. Wade should be overruled.

There is also ample precedent indicating that Kagan does not need to recuse herself from health care litigation. The last Solicitor General to be elevated to the Supreme Court was Justice Thurgood Marshall. Of the 53 cases Justice Marshall recused himself from due to his work as SG, 48 were cases that he had previously signed a brief in, and the other five were all cases where he either authorized an appeal or otherwise was involved in that exact same case.  Justice Marshall did not recuse himself from a single case that he had not previously done work on, and he certainly didn’t recuse himself from all school desegregation cases, even though he had done significant previous litigation in that area.

Likewise, Justice Hugo Black actually wrote the Fair Labor Standards Act while he was a senator, but Justice Black repeatedly heard cases interpreting this law while he served as a justice.

So the WSJ is simply making things up when it claims that Kagan is required to recuse herself from health care litigation.  Just like the frivilous lawsuits claiming that health reform is unconstitutional, the WSJ claims that it can make up the law as it goes.

Kagan Hearing Day Three: The Eye of The Beholder

By the third day of a confirmation hearing, opposition senators quickly start to sound like broken records, having used all their A-List attacks during the first round of questioning.  Moreover, since yesterday’s attacks on Kagan were such “thin gruel,” yesterday’s attacks on General Kagan barely even registered, and most of the Republicans’ time was spent on questions that Kagan had already answered.

Nevertheless, two very clear, and very different visions of the Constitution were on display yesterday.  Throughout the hearings, conservatives criticized civil rights icon and former Supreme Court Justice Thurgood Marshall as a judicial activist.  Sen. Al Franken (D-MN) explained at length why Marshall is no activist, pointing out that Marshall’s well known battle against “prejudice against discrete and insular minorities” has firm roots in the Constitution.

Likewise, progressives offered their own vision of what it means to be a judicial activist.  While their more conservative colleagues largely offered empty platutes about “legislating from the bench,” progressive senators focused heavily of Roberts Court decisions permitting limitless corporate influence on American democracy, forcing consumers and workers into a secret, privatized court systems and ignoring laws protecting women from pay discrimination and older workers from age discrimination as paradigm examples of activist decision making.  By the end of yesterday’s testimony, the conservatives looked beaten down.

Nothing exemplified the difference between these two competing visions of the Constitution more than an exchange between Sens. Tom Coburn (R-OK) and Amy Klobuchar (D-MN).  Referencing the Affordable Care Act, Coburn lectured Kagan about how Americans are “losing freedom,” and how we were more free “30 years ago.”  Klobuchar then pointed out that, 30 years ago, there were no women on the Supreme Court, no women on the Judiciary Committee, and only one woman in the Senate.  What freedom means, say Klobuchar, is in the “eyes of the beholder.”

Watch it:

So it’s clear that progressives have finally found their voice on the judiciary, and it is a voice which declares that “freedom” does not mean the freedom to be ill, the freedom to be discriminated against, or the freedom to have your leaders chosen for you.  But one week of clarity will not be enough to take back the judiciary.  Conservatives worked very hard for a very long time to seize control of the courts.  If progressives want to take them back, yesterday should be the first step in a very long journey.

Kagan Hearing Day Two: Serving Up Thin Gruel

President Obama is right.  The attacks on Supreme Court nominee Elena Kagan’s record are “pretty thin gruel.”  But lacking any reason to oppose the President’s nominees has never stopped Republicans from offering up kneejerk opposition in the past.  For the most part, today’s hearing has been no different.  In the absence of any real case against General Kagan, GOP senators have largely followed one of three models during this week’s hearings.

• The Sessions/Cornyn/Coburn Model: Double-Down on the Crazy

On the eve of the hearing, Sen. Jeff Sessions (R-AL) demanded that Kagan embrace a radical “tenther” view of the Constitution and strike down laws conservatives don’t like.  Yesterday, Kagan made very clear that she will not agree to turn the Constitution into the right-wing’s plaything.  Nevertheless, many of the Committee’s conservatives refused to let this issue drop.  Sen. John Cornyn (R-TX), for his part, claimed that the recently enacted Affordable Care Act violates the Tenth Amendment –  a position that places him well to the right of even ultra-conservative Justice Antonin Scalia. Sen. Tom Coburn levied similar attacks against health reform.  Not to be outdone, Sessions based much of his questioning on the writings of Richard Epstein, a fringe legal academic who describes Social Security and Medicare as “deeply flawed from the outset” and who supports the nearly complete repeal of anti-discrimination laws.

Amusingly, Sessions also spent much of the day lying about lying.  In multiple press interviews, Sessions accused Kagan of not being “accurate” when she said that military recruiters were allowed on Harvard campus during every single day that she was dean of the law school.  Sessions, however, could not actually cite a single false statement by Kagan, and Kagan’s version of events is supported by her very conservative predecessor as Harvard’s dean.

• The Graham Model: Fight Tomorrow’s Battle

Easily the most effective GOP questioner was Sen. Lindsey Graham (R-SC).  For one thing, Graham was the only Republican who directly acknowledged the strength of Kagan’s qualifications for the Supreme Court.  He read at length from a letter by ultra-conservative attorney Miguel Estrada, which praised Kagan and endorsed her nomination, and he cited several briefs Kagan had signed that he agreed with.  By the end of his time at the microphone, Graham — who also supported Justice Sotomayor — looked a lot like a “yes” vote.

At the same time, however, Graham extracted some valuable concessions from Kagan.  During the Bush Administration, Estrada was himself a nominee for the D.C. Circuit, but his nomination was blocked after Bush officials systematically blocked the Senate from receiving any information about his views.  Today, Kagan described Estrada — a personal friend of hers since law school — as qualifed to sit both on the D.C. Circuit and on the Supreme Court, and she offered to write Graham a letter saying as much.  Although Graham also tried and failed to get Kagan to endorse legislation formalizing military commissions and limiting Miranda, her endorsement of Estrada could prove quite valuable to conservatives if one of their own is picking judges in the future.

• The Kyl Model: Get Really Defensive

Chief Justice Roberts and his right-wing collegues were the big losers during yesterday’s hearing, a several of the Committee’s more progressive members spent the day highlighting the Roberts Court’s love affair with powerful corporate interests.  Faced with such a damning case, Sen. Jon Kyl (R-AZ) went on the defensive.  During the hearing, Kyl tried, unsuccessfully, to claim that the Roberts Court was just following the law when, in case after case,  it granted sweeping legal immunties to corporations.  And he even called the case against the Roberts Court “fraudulent” on a right-wing radio show.

What Kyl could not do, however, is offer any explanation for why corporations should be immune from a 60 year-old campaign finance law, why banks and drug companies shouldn’t have to follow state law, why a century-old rule banning price fixing should cease to exist, or why women and older workers should not be protected against discrimination.

Kagan Hearing Day One: The Battle To Define ‘Judicial Activism’

If someone does a word cloud of today’s opening statements in the Kagan hearing, the word “activism” will dominate the screen.  And this is nothing new.  Conservative senators figured out a long time ago that if they label anyone to the left of Samuel Alito a “judicial activist” then their more progressive colleagues will put their tail between their legs and cower.

Today, however, this tactic backfired.

Sure, Republicans brought their typical bluster to the hearing.  Sen. Jeff Sessions (R-AL) warned that Kagan may try to “change” the law’s meaning after she becomes a judge.  Sen. Jon Kyl (R-AZ) suggested that Kagan would “abandon impartiality and instead engage in results-oriented judging.”  These warnings, however, were largely empty.  Sessions, Kyl and their co-ideologues brought little in the way of evidence that Kagan wouldn’t follow the law.  In many cases, their attacks boiled down to nothing more than insinuations that there must be something wrong with General Kagan because she once heaped praise on her former boss, Justice Thurgood Marshall.

These attacks on Justice Marshall sparked what was easily the most eloquent moment of the hearing, Sen. Dick Durbin (D-IL) reminding Senate Republicans exactly who they were going after:

On at least three or four occasions I have been disappointed by my Republican colleagues warning us that you just might follow in the tradition of Justice Thurgood Marshall. . . . Let me say for the record, America is a better nation because of the tenacity, integrity and values of Thurgood Marshall. Some may dismiss Justice Marshall’s pioneering work on civil rights as an example of “empathy”—that somehow as a black man that had been a victim of discrimination, his feelings became part of his passionate life’s work—and I say “thank God.” The results which Justice Marshall dedicated his life to broke down barriers of racial discrimination that had haunted America for generations. . . . And I might also add that his most famous case, Brown v. Board of Education—if that is an activist mind at work, we should be grateful as a nation that he argued before the Supreme Court, based on discrimination in this society and changed America for the better.

Beyond this stirring rejection of conservative smears on Justice Marshall, the Committee’s progressives came armed with actual examples of right-wing judicial activism.  Progressives like Sens. Durbin, Chuck Schumer (D-NY), Amy Klobuchar (D-MN) and Al Franken (D-MN) each focused on cases where the Roberts Court placed a conservative agenda ahead of the law.  Citizens United and Ledbetter were both villians in today’s hearing, as were lesser known cases such as Gross v. FBL Financial Services, which stripped many older workers of their ability to challenge age discrimination, and Stoneridge v. Scientific-Atlanta, which left many investors powerless against securities fraud.

At the conclusion of today’s session, Kagan herself finally got a chance to speak.  Although her brief statement was heavy on biography and statements of gratitude, it also included an important indicator of what kind of justice she will be.  Yesterday, Sessions demanded that Kagan embrace “tentherism,” a radical theory of the Constitution which requires the Supreme Court to strike down health reform and other laws that conservatives don’t like.  Kagan’s statement firmly rejected this demand:

What I most took away from [my government service] was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.

Tomorrow, the senators get to grill Kagan, and the real drama begins.  In the meantime, however, Kagan and her allies appear to have finally found their voice on judicial issues.  They have learned to embrace democracy and decry the very real activism of the right.  Sessions and his ilk did not come off very well by comparison.

Roberts Court Finds Yet Another Way To Kick People Out Of Court

One of the most abusive corporate practices embraced by the Supreme Court in recent decades is the use of “forced arbitration” clauses to kick injured parties out of court.  As the Wonk Room previously explained:

The scam works like this:  beginning in the 1980s, the Supreme Court rewrote federal law to endorse a practice known as “forced arbitration.”  Under this practice, companies ranging from nursing homes to cell phone companies to employers can refuse to do business with anyone who doesn’t give up their right to sue or be sued in a regular court presided over by a neutral judge.  Instead, consumers and employees are shunted into a privatized, corporate-run judicial system, which overwhelming favors corporate parties.

Until today, however, ordinary Americans had one safety valve they could invoke to escape from some of the most abusive arbitration clauses–they could challenge the arbitration agreement itself under various legal grounds sufficient to void any contract.  They might claim, for example, that they were defrauded into signing the arbiration agreement, or that the agreement is so one-sided in favor of the corporate party that it should be invalidated.  Such claims rarely worked, but they at least provided a small check on this abusive practice, and they at least allowed the claim to be considered by a real judge in a real court.

Today, in a 5-4 decision in Rent-a-Center v. Jackson, the Supreme Court largely closed this escape valve.  In a difficult-to-follow opinion by Justice Scalia, the Court holds that, with very rare exceptions, a party claiming that they were tricked, trapped or forced into an arbitration clause is no longer allowed to challenge that clause in court.  It’s as if BP said that all suits brought by victims of the Gulf oil disaster must present their complaints to a BP executive, and only that BP executive can decide whether or not they are entitled to damages.

Without access to a neutral and unbiased judge, victims of arbitration clauses are trapped into corporate-owned courts that virtually never rule in ordinary Americans’ favor.  The practical effect of today’s decision is that millions of Americans will be left with absolutely no recourse whatsoever when they are harassed at work, scammed by their credit card company, or even raped by co-workers.

Anatomy Of A Smear: From The Federalist Society, To CBS, To Jeff Sessions »

Thousands of parties petition the Supreme Court to review their case, although the justices generally hear only about 60-80 cases a year.  So as a law clerk to Justice Thurgood Marshall, Supreme Court nominee Elena Kagan would have written literally hundreds of memos to her boss advising him on whether to grant or deny these petitions.  Of these hundreds of memos, the right-wing Federalist Society chose to post exactly five of them on its website.

By what could only be an amazing coincidence, CBS News’ legal correspondent Jan Crawford selected four of the same five memos as the basis of a report Thursday night. According to Crawford:

Taken together, these documents will be much harder for her to explain away than other, less controversial papers unearthed before her confirmation hearings for Solicitor General. . . . The documents seem to show that Kagan had some pretty strong legal views of her own, and while that might encourage liberals, it’s going to give Republicans a lot more ammunition to fight against her.

Watch it:

As if to prove Crawford’s point, Senator Jeff Sessions (R-AL) responded almost immediately to Crawford’s report with a statement claiming that “Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution,” and Sessions posted Crawford’s report to his YouTube channel.

These kinds of obviously coordinated attacks are nothing new, but the Fed-Soc/Crawford/Sessions hit on Kagan isn’t just a team effort, it’s also dead wrong.  Literally none of the memos cited in Crawford’s report mean what she says they mean.

• Abortion

The first memo cited in Crawford’s report is one recommending that Marshall deny review of a case holding that prisoners have a constitutional right to state funded, “purely elective” abortions.  Crawford presents the memo as evidence that Kagan’s views on abortion are somehow subject to attack from the right, but if Crawford had actually bothered to read the memo, she would have come to a very different conclusion.  Here is Kagan’s legal analysis of the decision subject to review:

Quite honestly, I think that although all of this decision is well-intentioned, parts of it are ludicrous. Since elective abortions are not medically necessary, I cannot see how denial of such abortions is a breach of the Eighth Amendment obligation to provide prisoners with needed medical care. And given that non-prisoners have no rights to funding for abortions, I do not see why prisoners should have such rights.

One baffles at how Crawford could present Kagan as too pro-choice based on this harsh view of the prisoner’s claim.

• School Segregation More »« Less

Chamber Whines That DISCLOSE Act Doesn’t Do Enough to Screw Unions

Although the Roberts Court’s egregious Citizens United decision gives wealthy corporations a free hand to spend unlimited money influencing elections, it still permits Congress to “regulate corporate political speech through disclaimer and disclosure requirements.” Accordingly, Congress is now considering a bill known as the DISCLOSE Act, which requires corporations and unions to disclose who is funding their electioneering campaigns so that the American people at least have some idea who is buying elected officials.

Predictably, conservative interest groups widely oppose the bill, and they have responded to it with an equally predictable tactic: demonizing unions. The Wall Street Journal’s editorial page warns that the bill “abandons the longstanding policy of treating unions and businesses equally.” The American Conservative Union labels this so-called exemption for unions “a blatant partisan move.” House Republicans labeled the bill the “Democrats’ union bailout.”

Had any of these right-wing sources actually bothered to read the bill, they would have learned that this attack is false. Page 40 of the bill specifically states that “[a]ny labor organization” is covered by the bill’s provisions governing donor disclosure.

Hilariously, the Chamber of Commerce responds to this clear language not by admitting that the bill applies to unions after all, but by complaining that unions will still be exempt because they don’t take in enough money:

The legislation would require corporations and labor unions to report donors who have given as little as $600 during the year. Because an average union member pays annual dues far beneath that threshold, most unions would not be required to disclose their donors even when they spend millions of dollars on political advertising.

The blanket restrictions on political participation by government contractors are effectively inapplicable to unions. The legislation, as amended in committee, would prohibit many government contractors from making any independent expenditures or funding any electioneering communications if the contractor has a government contract valued at $7,000,000 or more. Although a number of unions hold government contracts, few -– if any -– hold contracts that reach that amount.

Essentially, the Chamber is arguing that there is no difference between a mine worker who writes a small-dollar check to a union campaign to elect their preferred candidate, and a mining CEO who spends millions of dollars to fill the government with friendly lawmakers and judges. But this is absurd. The reason why the DISCLOSE Act exempts small-dollar donors is not to enact some absurd “union bailout,” it is because individual small-dollar donors have an insignificant influence on elections (although they combined donations can be significant), while large-dollar donors can actually change the course of an election if they are willing to dump enough money into a race.

Moreover, it is equally absurd to claim that unions are capable of competing financially with corporations, even if you combine all of their members’ small-dollar contributions. According to the AFL-CIO’s 2009 financial disclosure form (available here), the AFL-CIO’s national headquarters had less than $83 million in total assets. By contrast, BP earned over $10 billion in profits in a single quarter, and that’s just one of many wealthy corporations who have an interest in shaping US elections.

The Chamber’s objection really has nothing to do with unions.  Small companies which earn “only” $6 million in government contracts are also exempt from the relevant parts of the DISCLOSE Act.  In reality, the Chamber is just upset that Americans may find out who funds their shady electioneering campaigns.

Roberts Court Thumbs Its Nose At Precedent Yet Again

During his confirmation hearing, Chief Justice Roberts famously promised “to have the humility to recognize that [judges] operate within a system of precedent” and to accept his own “modest role” within this system.  Then he got confirmed.  The result has been a string of cases thumbing their nose at precedent, and today’s decision in Berghuis v. Thompkins is no different.

Thompkins involved a criminal defendant who was read his Miranda rights, and then sat unresponsively through two hours and forty-five minutes of interogation before confessing to his involvement in a shooting.  Today’s 5-4 decision effectively holds that such defendants waive their right to remain silent unless they expressly invoke it–a decision that it all well and good, except that it unambiguously conflicts with the Miranda decision itself:

An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.

Indeed, as Justice Sotomayor notes in dissent, the Court in Miranda considered nearly identical facts to those presented by the Thompkins case, but it reached the opposite conclusion:

[T]he fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.

In Sotomayor’s words, “[r]arely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case.”

Thompkins joins a long line of Roberts Court decisions that replaced well-established precedents with conservative ideology.  These cases include:

• Citizens United v. FEC: overruling a twenty-year old precedent to allow wealthy corporations to spend unlimited money to influence elections.
• Gonzales v. Carhardt:  striking down a federal abortion ban despite a Supreme Court decision upholding an identical law just seven years earlier.
• Ledbetter v. Goodyear Tire and Rubber: holding many women powerless to challenge pay discrimination despite a unanimous 1986 precedent to the contrary.
• Leegin Creative Leather Prods, Inc. v. PSKS, Inc.: uprooting a 96 year-old antitrust decision banning price-fixing.
• Parents Involved in Community Schools v. Seattle School District #1: audaciously claiming that the cherished Brown v. Board of Education decision forbids two local school boards’ plans to racially integrate public schools.
• Gross v. FBL Financial Services: not only stripping many older workers of their ability to challenge age discrimination, but also expressly stating that the Roberts Court is not bound by a prior decision its new members disagree with.

So today’s decision is a disappointment, but it is also part of a pattern.  Apparently, Roberts is no longer required to show humility now that he’s been confirmed.

Like a Broken Record, Conservatives Repeat Scare Tactics About Foreign Law in US Courts

Justice Aharon Barak: beloved by Scalia and Kagan alike.

Last year, when Justice Sotomayor was about to begin her confirmation hearings, Sen. Jeff Sessions (R-AL) took to the Senate floor to warn that, if confirmed, Sotomayor would replace American law with some kind of new world order:

The novel idea that foreign law has a place in the interpretation of American law creates numerous dangers. A number of academics, and even Federal judges, I would say, are seduced by this idea.

Judge Sotomayor clearly shares in that idea. I am somewhat surprised, but it is true, as I will discuss. Her vision seems to be that we should change our laws, or listen to other laws and judges, and sort of merge them with this foreign law.

Sotomayor has been a justice for almost a full Supreme Court term now, and she has somehow resisted the urge to transform America into France.  Nevertheless, the right-wing is already reviving Sessions’ silly conspiracy theory to attack the President’s latest nominee to the Supreme Court.

Yesterday, for example, the conservative Washington Times, claimed that a curriculum change Kagan presided over while Dean of Harvard Law School somehow reflects contempt for American law.  According to their editorial, “under Ms. Kagan’s leadership . . . Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in ‘International/Comparative Law.’”  Such a “de-emphasis on the Constitution itself” the editorial claims, predicts that a Justice Kagan would join with Justice Sotomayor to make all of Sessions’ foreign law nightmares come truly.

There’s only one problem:  the Washington Times got its facts wrong.  As Media Matters points out, Kagan did not “replace con-law with international law.”  Constitutional Law has never been a graduation requirement for Harvard law students in the first place.

Under Kagan’s leadership, Harvard law did add two new courses to its first year curriculum, but these changes were unanimously approved by the Harvard faculty, including conservatives such as former Reagan Solicitor General Charles Fried.  Moreover, the new course in international and comparative  law was not added as part of some grand conspiracy, but rather in recognition of the fact that many Harvard graduates went on to represent clients with legal issues that cross international borders.   To quote Harvard, a new curriculum was needed to “better prepare our students to enter the current market.”

Right-wing columnist Stuart Taylor also jumps into the conspiracy-mongering about Kagan and foreign law.  Taylor’s evidence that Kagan is somehow outside of the mainstream is a speech she once gave praising former Israeli Supreme Court President Aharon Barak, the legendary jurist who first held that Israeli courts may strike down an act of Israel’s Knesset when it conflicts with the human rights protected by Israel’s “Basic Laws.” In Taylor’s words, Justice Barak is known for “creativity in advancing liberal causes by overturning elected officials’ policies makes Marshall look almost like a champion of judicial restraint,” and Kagan’s praise of Barak somehow warns that she will try to make America more like Barak’s Israel.

Taylor’s attack, however, might come as a surprise to conservative Justice Antonin Scalia.  Scalia recently spoke at an awards ceremony honoring Barak, where he touted his “profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.”  Yet for all his praise of Israel’s most famous progressive jurist, Justice Scalia is hardly known for his “creativity in advancing liberal causes.”

The bottom line is this: conservatives have no case against Elena Kagan, so they’ve resorted to recycling old attacks that didn’t even work the last time around.  Sadly, they can’t even get their facts straight while dig through long-forgotten garbage.

What Does Rand Paul’s America Look Like?

In three recorded interviews, anti-government extremist Rand Paul (R-KY) stated his opposition to the federal ban on whites-only lunch counters.  Although he has since attempted to distance himself from his consistently-expressed and well-documented views, it is clear from the fact that Paul repeated certain ideas over and over again before they became a political liability that he has several well developed ideas about how government can behave.

First, Paul believes that the federal government has minimal power to regulate how private property owners use their property, or how private business owners manage their businesses or employees.  In Paul’s interview with the Louisville Courier-Journal, he explains that he opposes the ban on whites-only lunch counters because he “believe[]s in private ownership.”  During his lengthy interview with Rachel Maddow, Paul explained that he supports the parts of the Civil Right Act of 1964 that limit government discrimination, but that he rejects the “one title” of the Act that limits private activities (for the record, there are at least two titles of the original Civil Rights Act that limit private actors.  Title II prohibits discrimination by restaurants, hotels and other public accommodations; Title VII forbids employment discrimination). Similarly, in his interview with NPR, Paul explains that his shield surrounding private businesses extends well beyond the civil rights context.  When asked how he feels about “the degree of oversight of the mining and oil-drilling industries,” Paul responded “I think that most manufacturing and mining should be under the purview of state authorities.”

Second, Paul would drastically reduce–if not eliminate altogether–federal agencies’ power to regulate business.  In a January interview with Fox Business, Paul called for drastic regulatory rollbacks, stating that we should “get rid of regulation. Get the EPA out of our coal business down here. Get OSHA out of our small businesses.”

Third, although Paul leaves no doubt about his opposition to virtually all government regulation of private business, he does name one exception to this rule in his Rachel Maddow interview.  When asked about his views on supporters of whites-only lunch counters who resorted to violence against civil rights activists, Paul replied that people who engage in “violence” should go to jail.  There are any number of federal laws restricting mining companies, the oil industry and other private businesses which do not actually prohibit acts of violence, however, and Rand Paul has not clarified how he views these laws.

• The Workplace

Although Paul would not permit employers to commit acts of violence against their employees, he has not explained whether he would permit the federal government to impose any other limits on employers.  In the early 20th century, for example, the Supreme Court declared a law restricting child labor unconstitutional.  Since requiring seven year-olds to work in a sweatshop is not an act of literal violence against them, would Paul agree with this outdated decision?  Similarly, what of the federal minimum wage, or the Occupational Safety and Health Act, which prevents employers from forcing their workers to work in dangerous environments?  Paul should explain whether his belief in “private ownership” precludes such laws.

• Supreme Court

In its landmark decisions in Heart of Atlanta Motel v. United States, and Katzenbach v. McClung, the Supreme Court unanimously upheld the Civil Rights Act of 1964 against constitutional challenges.  Paul, however, believes that this law should not exist.  Since then, only one justice–Justice Clarence Thomas–has openly disagreed with the reasoning of these decisions.  Would Paul refuse to support judicial nominees who do not share Justice Thomas’s radical views?  Would he filibuster Supreme Court nominee Elena Kagan, who sees the world very differently than Justice Thomas?  Does Paul believe that the courts should impose his own ultra-libertarian views on the nation, as the pre-New Deal Court did in the “Lochner Era?

• Federal Agencies

Few members of Congress are environmental scientists, economists, or medical researchers.  Yet many federal regulations would be completely counterproductive unless they were drafted by experts.  Moreover, in an age of persistent filibusters, Congress cannot monitor existing regulations and adapt them to changing circumstances.  For these reasons, Congress often delegates regulatory authority to agencies whose officials have both expertise and the ability to act.  Such delegations are, in the Supreme Court’s words, an important way to ensure that the law responds to “changing circumstances and scientific developments,” and does not become “obsolete.”

In his Good Morning America interview yesterday morning, Paul accused EPA of “run[ning] amok” by preparing to regulate greenhouse gasses, even though Congress clearly delegated this power to EPA when it enacted the Clean Air Act.  This, and his previous attacks on agencies such as OSHA, calls into question if and when he believes that agencies are allowed to do their jobs.

So, while Rand Paul has been quite clear that his views are outside the mainstream, he has not yet clarified how far down the rabbit hole he would take America.  Paul should flesh out what, if any, federal laws he believes should continue to exist.

No, Kagan Does Not Want To Ban Books

Sen. Mitch McConnell’s (R-KY) signature issue is opposition to campaign finance regulation.  McConnell was the plaintiff in a landmark Supreme Court case challenging such regulation (he lost), and he has spent his legislative career opposing laws intended to prevent rich people and corporations have controlling elections.  A US News & World Report profile labeling McConnell the “Darth Vader of reform” sums up his views in three words:  “spending is speech.”

So it’s not suprising that McConnell took to the Senate floor yesterday to attack Supreme Court nominee Elena Kagan as a supporter of campaign finance reform.  Even though 80% of the American people disagree with McConnell on this issue, he has certainly been consistent in advancing his own fringe views.  But McConnell overreaches even further in his attack on General Kagan, claiming that she intends to ban books:

The argument Ms. Kagan and her office chose is that the federal government has the power to ban books and pamphlets.  That is the position of the Solicitor General and her office. . . .  Shortly after she and I met the press reported that she had co-written a memo on campaign finance restrictions when she was in the Clinton Administration.  In it, she says that . . . “unfortunately, the Constitution stands in the way of many restrictions on spending on political speech.”  And she believes that the Supreme Court’s precedents are quote “mistaken” in many cases.  And just last Thursday she told one of our colleagues that the Court was wrong in the Citizens United case because it should have deferred more to Congress.

Watch:

There are too many things wrong with McConnell’s statement to list here, but one glaring problem McConnell’s apparent inability to read a calendar.  Kagan became Solicitor General on March 19, 2009, but the brief in the case where “Ms. Kagan and her office” allegedly supported book banning was filed in February 2009 — a month before Kagan was confirmed.  At oral argument in that Citizens United case, which took place just five days after Kagan became Solicitor General, one of Kagan’s deputies briefly argued that a law applying certain campaign finance regulations to books would not violate the “freedom of speech,” but that it may violate the “freedom of…the press.”

Several months later, when the case was re-argued in September 2009, Kagan became involved in the case for the first time.  When confronted — again, for the first time — with question about whether campaign finance law could limit the publication of books, Kagan expressly distanced herself from her deputy’s more nuanced position.  General Kagan explained that “[t]he government’s answer has changed” since she took over the case, and that “there would be quite good as-applied challenge” to any attempt to any attempt to any attempt to limit the publication of books.  An as-applied challenge is a lawsuit claiming that the Constitution forbids a law to be used in a certain way.

So Kagan never claimed that government has the power to ban books, as McConnell suggests — indeed, she said the exact opposite.

Later in the same speech, McConnell accuses Kagan of believing that public officials can prevent people from expressing certain political views “just because they don’t like…the speech.”  This claim, however, would come as quite a surprise to Elena Kagan, whose seminal article on the First Amendment expressly states that “the government may not restrict expressive activities because it disagrees with or disapproves of the ideas espoused by the speaker.”

There is barely a sentence in McConnell’s entire floor speech that does not misrepresent General Kagan’s views, but McConnell is right about one thing.  He and Kagan do disagree sharply about whether wealthy corporations should be able to buy elections.  If McConnell really thinks that this is a winning line of attack against Kagan’s nomination, however, he is in for a rude awakening.

SCOTUS’ Sex Offender Decision Eviscerates Anti-HCR Lawsuits

State-funded lawsuits challenging the constitutionality of the Affordable Care Act (ACA) have always been a waste of taxpayer money.  Even if the states are allowed to bring these lawsuits in the first place–itself a dubious proposition–the law’s opponents will have a tough time assembling the five Supreme Court votes necessary to strike down health care reform when even ultra-conservative Justice Antonin Scalia acknowledges that Congress has the power to enact laws such as the ACA.

Today, the law’s opponents lost Roberts.

In a case called United States v. Comstock, the Supreme Court upheld a federal law allowing mentally ill sex offenders to be civilly detained after they have served their sentences if they “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”  Chief Justice Roberts joined the Court’s four moderates to form a majority, with Justices Kennedy and Alito each filing concurring opinions and Justices Scalia and Thomas dissenting.

So what does this have to do with health reform?  In upholding the civil detention law, the Court effectively rejected right-wing claims that Congress’ powers are too small to allow it to pass the ACA. The Constitution contains an enumerated list of Congressional powers which, although quite broad, are not limitless; and the right’s principal attack on the ACA claims that the power to enact a provision requiring all Americans to carry health insurance did not make the list of Congress’ enumerated powers.

One of Congress’ enumerated powers is the power to “regulate commerce . . . among the several states,” and even Justice Scalia concedes that this power to regulate interstate commerce includes sweeping authority to enact economic regulation.  Faced with such precedent,  the ACA’s opponents have not made the implausible claim that health care reform does not regulate economic activity–indeed, they would have a tough time doing so, after whining for months that the ACA would regulate “1/6 of the economy.”  Instead, they argue that Congress is not allowed to require Americans to purchase insurance because doing so would be an “unprecedented” means of regulating the national economy.  (Their claim that such laws are unprecedented, by the way, is false.)

As today’s Comstock opinion makes clear, however, when Congress exercises one of its enumerated powers, it is free to determine how it wants to do so–even adopting an uncommon or unprecedented means of achieving a legitimate end.  After Comstock, there is simply no force to the right’s claim that certain methods of regulating the insurance market beyond Congress’ enumerated powers:

We have also recognized that the Constitution “addresse[s]” the “choice of means” [] “primarily . . . to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.”

In other words, so long as Congress has chosen an end that is within its power to regulate the national economy, it is allowed to choose what means it wishes to employ in advancing that end.  Congress unquestionably has the power the national health insurance market, so it is allowed to choose a method of doing so that conservatives don’t particularly like.

Since joining the Supreme Court in 2005, Chief Justice Roberts has bent over backwards to advance right-wing causes.  He voted to give banks and drug companies sweeping immunity from state law.  He opened the floodgates to unlimited corporate money in federal elections; and he even claimed that there should be no consequence when a wealth coal baron buys a judge in order to overturn an unwanted court decision.  So the fact that even Roberts rejects conservative arguments against health reform should tell the state officials pushing these lawsuits to stop wasting taxpayer money on frivilous litigation.

Right-Wing Lawmakers Demand SCOTUS Nominee Kagan Flank To The Right Of Scalia

Justice Antonin Scalia is the Supreme Court’s most outspoken conservative.  He defends torture and finds little wrong with executing the innocent.  When a majority of his colleagues reached the radical conclusion that people have a right to choose their own sex partners, Scalia railed against them for embracing the “homosexual agenda.”  Yet, for all Scalia’s stridency, right-wing lawmakers are now implying that Solicitor General Elena Kagan may only be confirmed to the Supreme Court if she embraces fringe views that even Scalia soundly rejects.

On the day General Kagan was nominated, Sen. John Barrasso (R-WY) argued that the recently-enacted Affordable Care Act violates “states’ rights,” and that Kagan will be forced to explain whether she would strike down health care reform.  And Barrasso’s comment echoed a similar statement by Sen. Jeff Sessions (R-AL) who, in a thinly-veiled reference to health care, warned that “the court’s interpretation of the Constitution in the coming years could significantly affect the implementation of domestic polices approved by the president and Congress over the past year.”

Barrasso and Sessions’ belief that health care reform is unconstitutional, however, places them very much at odds with Justice Scalia.  In a case called Gonzales v. Raich, Scalia wrote that Congress has sweeping authority to regulate “economic activity,” and there is simply no question that comprehensive health care legislation is economic in nature.  The right-wing conceded this fact with their perpetual braying that health reform would regulate “1/6 of the economy.”

Rep. Mike Pence (R-IN) also announced today that he would use his speech to the National Rifle Association’s national convention to warn that Kagan is “one more jurist who is not sympathetic to the individual, constitutional rights of the American people,” but if Kagan’s views on the Second Amendment offend Pence, then Pence should also be quite peeved by the views of Justice Scalia.

In his landmark decision in District of Columbia v. Heller, Scalia wrote that, although the Constitution protects an individual right to bear arms, “the right secured by the Second Amendment is not unlimited.”  Indeed, Scalia said, a wide range of laws restricting firearms are constitutional:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. . . . [b]ut the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

General Kagan’s record is consistent with Scalia’s view of the Second Amendment.  A blog post by the right-wing Heritage Foundation highlights two objections to Kagan’s record: a 1987 memo recommending that her boss, Justice Thurgood Marshall, deny Supreme Court review to a party raising a Second Amendment challenge; and an presidential memorandum Kagan worked on in the Clinton White House which restricted the importation of certain firearms.

The first issue is easily disposed of.  At the time Kagan wrote the 1987 memo, Heller was still 21 years away, and then-existing law clearly permitted laws banning firearms for personal use.  Just as significantly, Justice Scalia was a member of the Court in 1987, yet he indicated no dissent from the Court’s decision not to hear the case Kagan recommended against their taking up.

The same is true about Kagan’s work on the Clinton-era memorandum, which sought to close a loophole permitting foreign gun manufacturers to import military-grade firearms such as Uzis into the United States.  Scalia’s holding that government may restrict “weapons that are most useful in military service” is clearly consistent with President Clinton’s memo.

So Barrasso, Sessions and Pence are entitled to their radical opinions about what the Constitution does not permit.  Before they attack Kagan’s views, however, they should look a little closer to home.

Limbaugh Falsely Accuses Kagan of Wanting ‘To Have Somebody in Charge of Who Can Say What’

Fresh off his sexist claim that  Solicitor General Elena Kagan lacks decisiveness because “she’s a woman,” Rush Limbaugh spent yesterday’s edition of his radio show touting paranoid claims that General Kagan is a threat to free speech:

This is a woman who believes that we ought to have somebody in charge of who can say what. This is a woman who believes that free speech needs to be regulated by an independent body that will decide whether or not what you say is harmful to somebody else, then you can’t say it. Kagan says a government motive is proper focus in a First Amendment case. She backs limits on speech that can do harm.

Listen here:

As Media Matters documents, Limbaugh’s unhinged fantasies about Kagan and the speech police are widely contracted by people who actually know something about the First Amendment.  Even Eugene Volokh, a noted right-wing First Amendment scholar, wrote that Kagan displays a “general acceptance of current free speech law…a general comfort with the current precedents, and a lack of desire to shift them much.”

Limbaugh’s right-wing allies point to a brief Kagan wrote as Solicitor General, in which she states that certain speech may not be protected by the First Amendment because of its “societal costs,” as proof that she is eager to “grant[] government the authority to decide what speech should be permitted.” Had these scaremongers actually bothered to read General Kagan’s brief, however, they would have learned that her views are entirely benign.

Under existing law, the Supreme Court recognizes a handful of extraordinarily harmful forms of communication — obscenity, incitements to immediate violence and child pornography, to name a few — which are not protected by the First Amendment. The brief Kagan’s opponents cite concerns a law intended to ban so-called “crush videos,” fetish videos which depict women slowly crushing animals to death for the sexual gratification of the viewer. (The Supreme Court eventually struck down the law at issue in this case for being too loosely drafted, but left open the possibility that a law tailored specifically toward banning crush videos would be upheld).

If Limbaugh and his ilk want to argue that child porn and crush videos should be legal, that is their right under the First Amendment, but bans on such exploitation hardly place America on a slippery slope to “speech panels.”  Limbaugh is simply wrong to claim that Kagan would support such a thing.

In her seminal article on the First Amendment, “Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine,” Kagan does list several rules which, as she understands First Amendment law, guide courts in weighing free speech cases.  Among them:

• “[T]he government may not restrict expressive activities because it disagrees with or disapproves of the ideas espoused by the speaker.”
• “[T]he government may not restrict speech because the ideas espoused threaten officials own self-interest–more particularly, their tenure in office.”
• “[T]he government may not privilege either ideas it favors or ideas advancing its self-interest.”
• “[T]he government may not limit speech because other citizens deem the ideas offered to be wrong or offensive–or for that matter, because they see the ideas as threatening to incumbent officials.”

So public officials cannot ban speech because they disagree with it. They cannot ban speech that makes voters less likely to support them,  and they cannot ban speech simply because it offends someone.  In other words, Kagan’s view of the First Amendment is actually the opposite of what Limbaugh says it is.

Mitch McConnell Doesn’t Know What A ‘Constitution’ Is

Responding to President Obama’s largely correct claim that the Supreme Court “reversed a century of law to open the floodgates – including foreign corporations – to spend without limit in our elections,” Senate Minority Leader Mitch McConnell put out a press release claiming Obama was “completely wrong” because a federal law prohibits

[f]oreign nationals, specifically defined to include foreign corporations, are prohibited from, quote, “directly or indirectly” making “a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election.”

Because “[n]one of these prohibitions were at issue in the Citizens United case,” McConnell claims that they remain completely intact, unchanged in any way because of the Citizens United decision. McConnell, however needs to go back to high school civics class, because it is clear from his press release that he doesn’t understand the most basic thing about the Constitution.

Citizens United is what is known as a constitutional decision of the Supreme Court of the United States. Specifically, Citizens United held that laws banning corporations from spending their vast treasuries to influence elections violates the constitution because they “impose[s] restrictions on certain disfavored speakers.” Congress could not call out one class of entities—corporations in the Citizens United case itself—and place limits on how much they can spend to broadcast their views about the election.

When the Supreme Court hands down a constitutional decision, the effect is not simply to strike down a single law. Rather, any law which conflicts with the Supreme Court’s reasoning is no longer enforceable. Thus, for example, when the Supreme Court declared public school segregation unconstitutional in Brown v. Board of Education, it didn’t just mean that Linda Brown got to go to a previously whites-only school. It meant that all segregated public schools anywhere in America would eventually be shut down.

Recall then that Citizens United held that Congress cannot select one class of entities who are not allowed to engage in electioneering. If this rule applies to a law banning a large class of entities from electioneering, such as corporations, it will also apply equally to a law that prohibits a smaller class of entities from electioneering, such as the law cited by Senator McConnell. This is really basic stuff; the whole point of having a Constitution is that laws which are held to conflict with it are no longer any good.

Admittedly, McConnell is correct when he says that the Court chose not to rule on the law he cites because a challenge to that law was not directly before them, but this really doesn’t matter all that much. The reasoning of Citizens United is broad, and it applies to all future cases. Once the law banning foreign corporate electioneering reaches the Supreme Court, they will either have to strike it down, or announce an entirely new rule exempting that law from Citizens United’s broad scope.

Perhaps the justices will decide to cast aside precedent once again when that day arrives—they certainly have made clear on multiple occasions, including the Citizens United case itself, that they have no compunctions about disregarding even longstanding precedents on a whim. Until that day, however, Citizens United’s reasoning stands, and McConnell is simply not telling the truth when he claims that an Act of Congress can triumph over a constitutional decision of the Supreme Court.

Supreme Court Preview Part III, Law and Order »

(The following is the third in a multi-part series on the upcoming Supreme Court Term)

The Roberts Court has been particularly aggressive in imposing its vision on the criminal law, cutting back on longstanding precedents intended to hold police accountable for constitutional violations, while simultaneously denying potentially innocent inmates the opportunity to prove their innocence.  This Term, the Court will consider issues ranging from the rights of juvenile defendants to the power of prosecutors to fabricate evidence.

• Prosecutors Fabricating Evidence, Pottawattamie County v. McGhee

In 1977, a retired police captain was murdered, and, despite substantial evidence linking another suspect to the murder, investigators eventually turned their eyes towards Terry Harrington and Curtis McGhee.  Unable to prove their case, police and prosecutors not only hid evidence linking the other suspect to the murder from Harrington and McGhee, they threatened to prosecute a witness against these two men unless he gave perjured testimony linking them to the murder.  Harrington and McGhee spent more than twenty years in prison before the Iowa Supreme Court finally tossed out their convictions.

It’s difficult to imagine a clearer violation of due process than the fabricated case against these two men, but the prosecutors believe that they have an ace in the hole:  a longstanding rule giving prosecutors sweeping immunity from lawsuits.

At its heart, this case turns upon a hypertechnical issue of whether the defendants were acting “within the scope of their prosecutorial duties” or simply as “investigators” when they fabricated evidence, but it is ultimately a case about whether government officials endowed with the awesome power to initiate prosecutions should be able to do so without legal checks on their authority.  As the Court explained over thirty years ago, the purpose of prosecutorial immunity is to shield against the possibility that “harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”  If prosecutors can be sued by anyone for any reason, the Court believed, they may act differently to avoid harassment suits.

This is undoubtedly correct, but are the costs of such suits so great that they exceed the costs of permitting prosecutors to fabricate evidence without consequence?

• Juveniles and Life Without Parole, Graham v. Florida and Sullivan v. Florida

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Supreme Court Preview Part II, John Yoo’s Revenge? »

(The following is the second in a multi-part series on the upcoming Supreme Court Term)

Few names are more associated with the worst abuses of the Bush Administration — its callous disregard for human rights, its treatment of the Constitution as opinion, its belief that presidents, or at least conservative presidents, are really kings — than former Bush OLC deputy John Yoo.  Yet while Yoo is most famous for his at-best professionally incompetent claims that it’s legal for the United States to torture, Yoo’s first love was always limitless Presidential power.  Two cases this Term will reveal just how many of the justices share Yoo’s passion.

• Can You Figure Out If You’re A Terrorist?  Humanitarian Law Project v. Holder

One of the bedrock principles of American criminal law is that a criminal statute cannot be written in such a vague manner that a “person of ordinary intelligence” can’t figure out what it prohibits.  Individuals shouldn’t have to guess whether or not they are breaking a law; and the Executive shouldn’t be empowered by ambiguously-worded statutes that allow them to claim that virtually anyone’s actions are worthy of prosecution.

Federal law, however, prohibits anyone from knowingly providing any “service,” “training” or “expert advice or assistance” to a group designated as a terrorist organization by the State Department. A law whose language raises serious vagueness concerns.  If a terrorist leader announces that he reads the New York Times website to keep track of US politics, must the Grey Lady find a way to deny him the “service” of its reporting?  Are attorneys who defend suspected terrorists in court providing illegal “expert advice or assistance?”  One government attorney even claimed that an attorney who files an amicus brief–a brief filed by a non-party to a lawsuit to help advise the judges in their decision-making–raising a legal argument that benefits a terrorist organization is a felon.

If the Court allows this statute to stand, it will not only give its approval to a law that appears to ban Constitutionally-protected activity, it will give the Executive a virtual blank check to bring prosecutions against individuals with tenuous connections to terrorism.  Worse, should the Court do so, it could take a giant bite out of the principle that people need to be able to figure out what the law is.

• The “Unitary Executive,”Free Enterprise Fund v. Public Company Accounting Oversight Board

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