February 11, 2008
Another Way To Look At The D.C. Handguns Case
In March, lawyers for the District of Columbia will go before the Supreme Court to argue that the Second Amendment does not trump a municipality's interest in regulating the flow of deadly weapons. It will be the high court's first crack at the contentious "right to bear arms" amendment in more than seven decades.
As is often the case when big cities grapple with an epidemic of gun violence, the winds of sympathy are blowing in the District's favor. Mayor Adrian Fenty's administration is taking a visible lead in this case, seeking to defend the strictest handgun law in the country: a ban on most private gun ownership and requirements on how guns are stored in private homes.
The justices will be asked to interpret a confusing clause in the Second Amendment, which would thereby clarify whether the right to bear arms is collective -- the prevailing interpretation in American jurisprudence -- or individual. But in an amicus brief, a guns rights group is asking the court to take a very narrow look at D.C. v. Heller. At issue: the District's failure to police itself.
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January 30, 2008
Mukasey Frustrates Again On Waterboarding
Attorney General Michael Mukasey fended off questions today on waterboarding, CIA destruction of interrogation tapes, the U.S. attorney firings and other high-profile issues in his first appearance before the Senate Judiciary Committee since his contentious confirmation hearings three months ago.
Mukasey said the CIA does not conduct waterboarding now and that the committee would be privately informed should that change. Mukasey repeatedly declined to say if waterboarding -- an interrogation technique that causes suspects to believe they are drowning -- constitutes torture, or to confirm if it was used by the CIA.
"Given waterboarding is not part of the [interrogation] program and may never be added to the program, I don't think it's appropriate for me to comment on its legality," he testified. Mukasey did suggest a standard where the brutality of an interrogator's action would be weighed against the value of information elicited to decide if the act constitutes torture. That position drew rebukes from several committee Democrats.
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January 25, 2008
The New New Way Forward In Iraq
To non-hyperpartisans who've been following developments in Iraq, it's been clear for some time that there will be a significant U.S. presence there going into the next decade, regardless of which party rules the White House next year. Though both sides called a de facto truce in Congress following the anticlimactic testimony of Gen. David Petraeus and Ambassador Ryan Crocker in September, lawmakers appear to be getting their sea legs back on the war debate.
A skirmish is just now brewing over the White House's negotiations with the Iraqi government concerning the longer-term American posture there. "Status of forces" agreements are standard issue with allies; we have one with more than 120 countries, according to the State Department. Iraq, of course, is not just any country, and Democrats are nervous that the new agreement will lock the U.S. into a deeper, more long-term engagement than they'd like.
It's already playing on the campaign trail. In a debate in Las Vegas last week, Hillary Rodham Clinton and Barack Obama agreed to pursue legislation requiring President Bush to request congressional approval for the Iraq status of forces agreement. "I think we have to do everything we can to prevent President Bush from binding the hands of the next president," Clinton said.
Presidents usually don't have to bring those agreements before Congress, but administration officials acknowledged to the Washington Post that they might have to submit the Iraq agreement for lawmakers' approval.
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January 15, 2008
SCOTUS Ruling Bad News For Enron Plaintiffs
The Supreme Court today drew a line around securities law, ruling that third-party defendants could not be sued for facilitating or failing to disclose fraud.
The 5-3 ruling in Stoneridge Investment Partners v. Scientific-Atlanta [PDF] was authored by Justice Anthony Kennedy. (Justice Stephen Breyer recused himself from this case.) This Supreme Court is not a fan of class-action lawsuits, and today's ruling reflected the justices' desire to cap those suits to a manageable minimum.
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Vetoed Authorization Bill Puts Military Bonuses On Hold
After relying heavily on financial incentives to attract recruits and retain war-weary troops, the military has had to put the brakes on awarding signing bonuses until Congress and the Bush administration resolve a dispute over President Bush's veto of the FY08 defense authorization bill.
House Democrats announced yesterday they would hold a vote tonight "disposing of" the president's veto of the annual policy measure over a provision the administration fears would tie up the assets of the current Iraqi government in court claims filed by victims of Saddam Hussein's regime.
A Democratic aide said a vote to override the veto is possible today, even though the White House contends the bill was killed by a pocket veto, a rejection that cannot be challenged by Congress. But the likely course of action, the aide said, would be to refer the bill back to the House Armed Services Committee, which would then "fix" the provision to smooth the way toward enactment.
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January 09, 2008
Supremes Hear Arguments In Voter ID Case
UPDATED.
Just in time for the 2008 elections, the U.S. Supreme Court heard arguments this morning on whether laws requiring a government-issued photo ID to vote are constitutional (transcript [PDF]).
The main topic at hand is election fraud. We previewed the case back in September when it was granted cert. Surprisingly, the justices seemed eager to steer the arguments away from the political touchiness of the voter ID issue.
The first questions asked of Paul Smith, arguing for petitioners, concerned whether his clients even had standing to sue the Marion County Election Board and Indiana secretary of state over one of the strictest voter ID laws in the land. Justice Antonin Scalia and Chief Justice John Roberts grilled Smith on this point, and for good reason: the plaintiffs included the Democratic Party of Indiana, which sued on the grounds that the government-issue photo ID required was unfairly prohibitive for elderly and poor voters, who may not own cars or driver's licenses.
The justices were essentially asking Smith to prove that the plaintiffs had actually been harmed by the law. A skeptical Roberts noted the lower-court judge's finding that "there is not a single plaintiff who intends not to vote because of the new law -- that is, who would vote were it not for the law."
"Well, Your Honor, the record in this case was made when an election had not yet happened," Smith replied. "So that comment, while it was certainly made, I don't quite understand its significance. This case was brought to try to prevent an irreparable loss of constitutional rights in advance of the implementation of this law."
Smith added that since the January 2007 Seventh Circuit Court of Appeals ruling [PDF], elections had been held under the law and that a number of people who did not have photo IDs were not allowed to vote.
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January 08, 2008
Dems Weigh Response In Defense Authorization Showdown
Congressional Democrats are grappling with how to respond to President Bush's unexpected veto of the FY08 defense authorization bill late last month because of a provision that would allow victims of state-sponsored terrorism to sue foreign governments in U.S. courts.
One response would be to hold a veto override vote in the House as early as next week, despite White House claims that the president's action constituted a pocket veto and is not subject to a challenge. House Republican leaders have urged their Democratic counterparts to fix the provision and are expected to vote to uphold the veto. While no formal vote count has yet been taken, a House GOP aide predicted Monday that a "large majority of House Republicans" would vote with the president. Should Democrats succeed, the White House could challenge the override vote -- a move that could tie up the defense bill in a murky constitutional dispute over the definition of a pocket veto, another House aide said.
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January 03, 2008
Will Personnel Shuffle Harm D.C. Gun Ban Case?
The lawyer who took the lead role in preparing the District's appeal on its handgun ban was fired just one week before the brief he helped prepare is due to be filed to the Supreme Court.
The Washington Post reported on its Web site yesterday that city lawyer Alan Morrison had been fired for, he suggested to the paper, political reasons. The Supreme Court is set to hear the case as early as March, and its interpretation of whether the Second Amendment guarantees the right to possess handguns could have ripple effects in crime-ridden cities across the country.
In this morning's edition, at-large D.C. Council member Phil Mendelson complained to the Post that the mid-stream firing was "like committing hari-kari." Mendelson also said he had only heard positive things about Morrison's work.
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December 10, 2007
Garden State Close To Death Penalty Ban
New Jersey is poised to become the first state to abolish the death penalty in 40 years. The Democratic-majority Senate has just approved legislation repealing the death sentence, which the state Assembly is set to approve on Thursday. Gov. Jon Corzine (D) has indicated he will sign it into law within the month.
Today's vote may portend a wider, mostly blue-state trend (but increasingly red-state, too) of re-examining capital punishment. Progress in DNA technology [PDF] and recent revelations that some deeply held tenets of criminal forensics are seriously flawed are leading legislatures to embark on cost-benefit analyses of the death penalty. More state government leaders are coming around to the view that having capital punishment on the books as a law enforcement tool is not worth the risk of executing the wrongly convicted.
Closer to the Beltway, Maryland seems best positioned to follow New Jersey's example in the near future. Gov. Martin O'Malley (D) has called on lawmakers to enact a repeal, and the state has had a de facto moratorium in effect since a state Supreme Court decision one year ago.
Executions are in a sort of holding pattern across the country. The U.S. Supreme Court in September agreed to take up the constitutionality of lethal injections on Eighth Amendment grounds. That case, as with most cases that come before the court these days, is expected to be a nail-biter, with Justice Anthony Kennedy making the final call.
-JANE ROH
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Judges Get More Flexibility On Crack Sentencing
In a 7-2 decision, the U.S. Supreme Court said that federal sentencing guidelines for drug crimes were nonbinding, giving judges some breathing room on sentences for offenses involving crack cocaine. Writing for the majority [PDF], Justice Ruth Bader Ginsburg drew on the U.S. Sentencing Commission's recommendations that the 100-to-1 cocaine-crack possession ratio established by Congress be revised.
In 1986, Congress set much harsher penalties for crack cocaine offenders out of fear that use of the drug was fast becoming an epidemic in urban areas. The disparity in penalties can be seen in U.S. prisons, where blacks are disproportionately represented while powder cocaine offenders, who are mostly white, get off relatively easily.
Some activists have called the lopsided U.S. drug policy blatantly racist, but that was not really a calculation in today's decision. "A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is 'greater than necessary' to serve the objectives of sentencing," Ginsburg wrote. "In making that determination, the judge may consider the disparity between the Guidelines' treatment of crack and powder offenses."
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December 05, 2007
SCOTUS & Gitmo, Round 3
The Supreme Court Web site has a transcript [PDF] of this morning's oral arguments; C-SPAN has audio (its Web site does not isolate audio links, sorry) (try this link).
On first blush, it looks like this decision comes down to Anthony Kennedy (must be Wednesday). See analysis from Lyle Denniston, Marty Lederman and Orin Kerr for more.
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November 20, 2007
SCOTUS To Review D.C. Gun Ban
The Supreme Court has agreed to interpret for the first time whether the Second Amendment grants individuals the right to possess handguns.
The amendment states only that "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 has never made the distinction between militias and individuals on gun ownership, nor has it delineated the authority of states and localities on the matter.
At issue is Washington, D.C.'s 31-year-old ban on handguns, one of the strictest gun-control laws in the nation. In March, a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 that the District's law was unconstitutional. "I am personally deeply disappointed and frankly outraged by this decision," said Mayor Adrian Fenty (D) at the time. "It flies in the face of laws that have helped decrease gun violence in the District of Columbia."
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October 04, 2007
CIA Interrogations To Take Center Stage In Mukasey Hearings
UPDATED.
Democratic members of the Senate Judiciary Committee are incensed at the revelations in this morning's New York Times report outlining secret legal opinions the Bush administration has used to justify harsh interrogations techniques for terrorism suspects.
"It would be bad enough if this administration had disgraced itself and this country by engaging in cruel and degrading treatment of detainees. It is worse still that it enlisted the Justice Department in the effort to justify and cover up its activities," said Massachusetts Sen. Edward Kennedy, speaking on the floor of the Senate today.
Kennedy is a member of the Senate Judiciary Committee, which yesterday announced that confirmation hearings for attorney general nominee Michael Mukasey would begin as early as two weeks from now. Chairman Patrick Leahy appeared to be signaling that he would not hold up Mukasey's hearings despite an ongoing confrontation with the White House over the NSA surveillance program and U.S. attorney firings scandal. While the revelations about DOJ possibly signing off on torture will probably not affect the hearing timeline, they will almost certainly have a huge impact on Mukasey's confirmation.
A congressional source with close knowledge of the committee said that "a lot of people are really, really angry" about the secret opinions. According to the Times report, the White House took backdoor measures to keep CIA interrogation techniques like "head-slapping, simulated drowning and frigid temperatures" in play by way of secret DOJ memos asserting their legality -- even as it publicly bowed to demands by Congress and the Supreme Court to outlaw them.
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September 25, 2007
Voter ID Case To Be Decided Before Election '08
Among the cases granted cert [PDF] by the Supreme Court today is a highly anticipated appeal concerning one of the strictest voter ID laws in the land.
Petitioners in the consolidated case, Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, are appealing the decisions of two lower courts to uphold the 2005 law, which requires would-be voters to present government-issued photo identification. The court will be asked to decide, probably in oral arguments early next year, whether the law infringes on Indianans' right to vote.
This case will settle a patchwork of conflicting laws popping up in the states, a welcome relief as the very act of voting becomes ever more complicated in certain places. But voting rights advocates opposing ID requirements could well find themselves wishing the case hadn't been brought just yet.
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SCOTUS To Take Up Lethal Injections
The Supreme Court has agreed to review the constitutionality of executions performed by lethal injection, in a challenge stemming from two death row cases in Kentucky. Lawyers for convicted murderers Ralph Baze and Thomas Clyde Bowling claim that lethal injection amounts to cruel and unusual punishment prohibited in the Bill of Rights.
Baze's execution was originally scheduled for tonight. Earlier this month, however, the Kentucky Supreme Court stepped in and halted it for reasons unrelated to the constitutionality of lethal injections. Baze was convicted of murdering a sheriff and his deputy in 1992, and Bowling was convicted of shooting and killing a couple after a car crash in 1990.
Both men sued the state of Kentucky in 2004. Neither one is challenging his sentence before the court.
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September 19, 2007
Bring Us The Body... Of Case Law
A bloc of 42 Republicans -- and Joe Lieberman -- have rejected a vote on an amendment that would restore habeas corpus rights to terrorism suspects. (See reports on how the vote went down here, here and here.)
The Senate rejection leaves the question of constitutionality to the Supreme Court, which is scheduled to weigh this matter in the coming term anyway. Several of the justices -- quite possibly a majority -- are disturbed that the Detainee Treatment Act of 2005 strips terror suspects of the right to appeal their detention.
This most fundamental of rights may only be suspended during invasion or insurrection, per the U.S. Constitution, no matter if the accused is a foreigner or a citizen. The further we get away from the 9/11 attacks -- the very reason for this shadowy system of justice -- the more uncomfortable the justices seem about the entire military detention process. Several have struggled with the squishy boundaries of what the "war on terror" even means. This may explain the court's unprecedented June reversal of its own decision not to hear the petitions of two prisoners challenging their detentions.
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September 12, 2007
Not An Open-Ended Commitment. Just Really Bloody Long.
President Bush is expected to confirm tomorrow night that he will follow Gen. David Petraeus' and Ambassador Ryan Crocker's recommendations for the Iraq war. Get ready for a long, hard slog through this political season.
The dominant feeling on the Hill today is that after an agonizingly long five months of waiting for the Petraeus-Crocker report to arrive, nothing has changed with regard to a way out of Iraq. The "surge" strategy is working, lawmakers were told, but only in part. The missing link is national political reconciliation, and we still don't know how to get there. In summary: Give us more time.
Not good enough, appears to be the conclusion of most Democrats and even some Republicans. Their objection is twofold.
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September 07, 2007
Will White House Appeal Judge's Patriot Act Ruling?
Andrew Cohen of the Washington Post's Bench Conference blog thinks so. But a DOJ appeal may actually not be worth it.
U.S. District Court Judge Victor Marrero's ruling [PDF] yesterday strikes a provision in the revised 2005 Patriot Act that allows the government to compel data and records from businesses. The FBI was permitted to forbid those businesses -- Internet service providers, phone companies, etc. -- to object to, or talk about in any way, orders to surrender records. (Judicial review was permitted, but Marrero concludes that the bar for reversal was set unreasonably high.)
That meant those companies had no way of alerting customers that their records were being seized by the feds, nor could they resist handing the records over in the name of protecting customers' privacy. ISPs in particular have vocally objected to this provision; the one that brought the lawsuit is listed as "John Doe."
Marrero found that the gag order violated the businesses' First Amendment rights. That's a fairly easy legislative fix. Congress agrees with DOJ that in some cases, particularly those related to terrorism investigations, it may be necessary to demand records from vendors and order them to keep quiet about it. But lawmakers could rewrite the provision and expand judicial review over this process, placing additional burden on the FBI to show a compelling reason why a gag order is necessary. It's hard to think of a good reason why DOJ would object to that.
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August 22, 2007
Known Knowns And Unknown Unknowns Of The New Wiretap Program
Ever since December 2005, when the White House admitted it conducted surveillance on Americans without obtaining a warrant, lawmakers have been wondering about the scope and extent to which the federal government was spying on its own citizens. When one of the judges on the Foreign Intelligence Surveillance Court, James Robertson, quickly resigned in protest, many Americans became acquainted with the top-secret FISA court for the very first time.
It's nearly two years later, and details are still slow in coming. Some things we think we know: The Bush administration admits the National Security Agency bypassed FISA's provisions protecting Americans from wanton Fourth Amendment violations, but as an afterthought. The target was overseas electronic communications -- of any kind, even without reasonable certainty that the target had ties to terrorism. If an American just happened to be on the other end of the line, so be it.
Some civil libertarians, of course, view the NSA program as President Bush giving himself license to listen in on every Tom, Dick and Mary squawking into a cell phone. That's possible, but it's also doubtful. Counterterrorism is the point (and no, saying so does not justify what may very well be unconstitutional domestic surveillance).
And that presents ever more obstacles for administration critics clamoring to know what the government has been up to. The White House has made arguments implying that it is circumventing the law (see all those signing statements), but refuses, even under congressional subpoena, to describe how and in what circumstances it is doing so. Keeping secrets in the name of national security has generally been deemed a legitimate and necessary function of government. The problem is this president and this administration. The executive branch has a tremendous amount of flexibility in deciding what falls under the category of "national security." For those who don't trust Bush or Dick Cheney, that is incredibly frightening.
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August 16, 2007
Ashcroft Was 'In No Condition' For Gonzales, Card Visit
Newly released notes from FBI Director Robert Mueller indicate two White House aides ignored the health concerns of then-Attorney General John Ashcroft as they tried to pressure the AG to sign off on President Bush's secret, possibly unconstitutional domestic spying program.
In the notes [PDF], obtained by the House Judiciary Committee and released today, Mueller seems to have been angered by then-White House Chief of Staff Andy Card and former counsel Alberto Gonzales, who insisted on seeing Ashcroft in his hospital room while the AG was recovering from gall bladder surgery and acute pancreatitis. Mueller says he was tipped off to the visit by then-Deputy AG James Comey, who assumed acting AG powers during his boss' illness.
Having reached Mueller while he was dining with his wife and daughter, Comey said that Ashcroft was "in no condition to see them, much less make decision [sic] to authorize continuation of the program." As is consistent with their sworn testimony, Comey requested Mueller's presence at the hospital to "witness" Ashcroft's condition.
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August 10, 2007
NYT Supreme Court Correspondent Tangles With Media
The normally staid Supreme Court press corps is getting some catty coverage of late.
The latest example: New York Times SCOTUS correspondent Linda Greenhouse is at the center of a small media brouhaha yet again. The Columbia Journalism Review reports that "Hurricane Linda" threw a fit yesterday when she learned that the panel discussion she was to partake in was being televised by C-SPAN. Forced to choose between kicking out the cameras or proceeding with the panel without the venerated journalist, the event's organizers chose the former.
Witnesses said "Greenhouse walked in, took one look at the lights and the camera equipment, and, 'became infuriated,'" according to CJR's account.
Reporter Gal Beckerman speculates Greenhouse's fit may have something to do with lingering fallout following a speech in which she appeared to disclose her liberal political leanings.
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July 27, 2007
After Hazleton Ruling, What Would SCOTUS Do?
Federal inaction has spurred states and municipalities to forge ahead on matters like global warming and immigration. In April, the Supreme Court seemed to boost efforts by states like California to exceed federal regulations on greenhouse gases. But it's not clear whether the justices would do the same for U.S. towns leading the charge on illegal immigration.
Yesterday's decision [PDF] by a U.S. District Court judge declaring Hazleton, Pa.'s housing and employment ordinance on illegal immigrants unconstitutional will be appealed, the town's mayor promised. The decision will affect the dozens of U.S. cities and counties weighing similar measures to crack down on illegals.
Hazleton's first-in-the-nation ordinance required landlords to register with the town and all prospective rentees to submit to background checks on their residency status. Businesses found to be employing illegal immigrants were to lose their license for five years. The ordinance also declared English to be the official language of the town, which refuses to print any information in Spanish.
Judge James Munley invoked the Immigration Reform and Control Act of 1986, ruling that only the federal government had jurisdiction over immigration law. That act stipulates: "The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."
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July 05, 2007
Poll Track: A Strong Constitution
Take heart, Ron Paul! A new Zogby poll shows nine in 10 Americans believe the U.S. Constitution is still relevant in today's world, and most believe the Founding Fathers would frown upon recent attempts to clamp down on civil liberties, from driving without a seat belt to smoking marijuana.
The nationwide poll conducted to coincide with the Independence Day holiday reveals an American public strongly in favor of states' rights on issues like abortion and drug policy and distrustful of government attempts to regulate Internet usage and certain types of speech. That may explain why Paul, the libertarian Texas congressman vying for the Republican nomination for president on a platform of strictly small government, has such a vocal if tiny base of support.
On the flip side, Michael Bloomberg -- who many speculate is considering an independent White House bid -- should note that less than a quarter of respondents think George Washington, Thomas Jefferson and company would be pleased with his initiatives to ban indoor smoking and eliminate trans fats in New York City.
Today's Poll Track (subscription) has more details on the Zogby survey.
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June 29, 2007
Supreme Court Reverses Course On Gitmo Cases
In a remarkable turnabout, at least two justices on the U.S. Supreme Court have changed their minds about a petition and have agreed to hear the case. More significant: the case is actually two petitions from foreign terror suspects challenging the Bush administration's power to hold them in Guantanamo.
Back in April, only three justices agreed to hear the detainees' arguments -- one short of the number needed to grant a review of the case. Two others, Justices John Paul Stevens and Anthony Kennedy disagreed, instructing the petitioners to exhaust the lower-court options, including the newly established military tribunal system, first.
In order to grant a hearing after initially denying one, the votes of five justices are needed. It's a safe bet that Stevens and Kennedy were the justices who changed their minds, and not Samuel Alito, Clarence Thomas, Antonin Scalia or Chief Justice John Roberts.
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June 28, 2007
Supreme Court Rules Against School Desegregation Policies
UPDATED.
The modern-day Supreme Court has a tendency to save its touchiest cases for the end of the term, and that was certainly true today. In what was surely a coincidence on the justices' part, this morning's 5-4 decision [PDF] against two school districts' desegregation programs was handed down hours before PBS hosts the first 2008 presidential candidate forum that will focus on race-related issues.
Luckily for the Republican hopefuls, they will be spared having to defend the "right-wing judicial activists" who "turned Brown v. Board of Education on its head" during tonight's event at Howard University. Those criticisms of today's ruling are from Democratic candidate John Edwards, who was joined in the race to release a statement condemning the decision by first-tier rivals Hillary Rodham Clinton and Barack Obama.
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June 25, 2007
SCOTUS Strikes Issue Ads Provision
Is this the death knell for McCain-Feingold?
In a 5-to-4 decision, the Supreme Court ruled today that issue ads financed by corporate and labor interests will be allowed to mention names of cand
