Friday, September 6, 2013

Syria intervention and the law, continued

Thanks for the many terrific comments (on- and offline) on my recent post regarding possible U.S. intervention in Syria.  I don't have time today to respond to all of them, but a couple points made by my colleague Garrett Epps are particularly compelling.

Garrett suggests that if I'm right that there is (morally speaking) a legitimate choice to be made between obeying international law and following the dictates of morality, then the U.S. ought to at least formally request Security Council authorization before taking unilateral action.  I agree with this suggestion.  Of course, the Council's response probably would be a foregone conclusion, given the virtual inevitability of a Russian (and possibly a Chinese) veto.  But formally requesting Council authorization would be an important exercise in self-discipline and in respect for the law.  It would force the administration to hone its arguments regarding why military intervention really is necessary and to present those arguments publicly.  It would at least imply an acknowledgment that any unilateral action by the U.S. would be against international legal norms.  And if (as seems inevitable) the Council denies the request, the resulting chastisement, while falling short of formal sanctions for breaking the law, would at least impose some cost (in the coin of international public opinion) on the U.S. for doing so.

As I wrote in my previous post, law should have some teeth to prevent legal subjects from, in all good conscience, over-disobeying the law thanks to overconfidence in their own moral judgments.  A formal request of, and rejection by, the Security Council may be the best international law can provide in this instance in the way of teeth.  Of course, I am under no illusions that this will actually happen; I can't envision any U.S. President (even a second-term former law professor) willing to pay the domestic political price that surely would follow from the perception of begging the U.N. for permission to act and coming away with nothing to show for it.

Garrett also points out another wrinkle:  the fact that part of international law is customary law, that is, law that is formed not by formal treaties, proclamations, or court decisions but rather by patterns of practice over time.  Subjects of international law can actually make the law to which they are subject by taking some action that, while not legal (at least not clearly legal) when taken, becomes accepted as legitimate by other participants in international law.  This complicates matters; it suggests that if the U.S. acts unilaterally, that action may eventually come to be regarded, ex post, as legal.  (Some argue that NATO's intervention in Kosovo in 1999, which occurred without Security Council approval, should now be regarded as legal for this reason.)  And while I'm no international law expert, it strikes me that the case for the customary legality of intervention might be weakened if the U.S. were to ask the Security Council's permission and that permission were to be denied.

I doubt very much, however, that the hope of making new customary international law by itself is enough to justify unilateral action.  For one thing, the precedent that would be set if unilateral "humanitarian" intervention become the norm would be dangerous and not necessarily to our liking.  The need for humanitarian intervention will often be a matter of reasonable dispute -- hence the presence of international procedures, however, imperfect, for determining its existence -- and if the U.S. can (legally) make these decisions unilaterally, then so can China, Russia, or for that matter North Korea or Syria or Iran.

In other words, it's one thing for the U.S. to act, and to be seen as acting, against established norms of international law; that is unlikely to set a legal precedent.  It's another thing entirely for the U.S. to help create a customary norm that unilateral intervention is legally justified (or for that matter to argue now, in defense of unilateral action, that such a customary norm already exists).

We can learn a lot about this distinction from Justice Robert Jackson's dissenting opinion in Korematsu v. United States, the now-infamous Supreme Court decision validating the internment of Japanese Americans during World War II.  Jackson acknowledged that the military cannot always be held to legal standards in time of war.  "It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality,"he wrote.  "When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal."  Jackson thus acknowledged the possibility that the internment order was morally, if not legally, permissible.

But Jackson objected to the Court's legal validation of the order.  "A military order, however unconstitutional, is not apt to last longer than the military emergency," Jackson noted.  "But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle .... The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

A legal norm permitting military intervention for humanitarian purposes might turn out to be Jackson's "loaded weapon," waiting to be deployed by any nation with a quasi-plausible argument of "humanitarian" exigency.  A saliently illegal humanitarian intervention is dangerous, to be sure, but at least it doesn't establish a legal principle we all might come to regret later.

Finally, a word about my very tentative "leaning" in the previous post toward "militarily appropriate" strikes against Syria.  Part of me regrets writing that; there are many complex moral and policy considerations in the mix, most of them well beyond my capacity for well-informed judgment.  I am in fact profoundly conflicted about what should be done as a practical matter; I'm not sure how I would vote on the proposed resolution if I were a member of Congress, though for various reasons I still lean somewhat in favor.  A vote for intervention, however, has enormous potential to haunt those who cast it two or three years down the road, if "surgical strikes" against Syria become, as they very well might, "boots on the ground," "nation building," and all the horrible things we are justifiably sick of thanks to the last decade in Iraq and Afghanistan.  Only a fool would deny the huge actual and potential costs of intervention.  I didn't mean to deny them in my previous post.  What morality and policy have to say about intervention are extremely difficult questions.  My point was simply that these questions are different from, and not necessarily preempted by, the question whether intervention is illegal.

Thursday, September 5, 2013

Thanks to Larry Solum ...

... for the kind mention in his Legal Theory blog of my paper "What Lies Beneath:  Interpretive Methodology, Constitutional Authority, and the Case of Originalism," which I recently posted on SSRN and is forthcoming in the BYU Law Review.

Wednesday, September 4, 2013

Striking at Syria would be illegal. Should we do it anyway?

In yesterday's New York Times, Yale law professors Oona Hathaway and Scott Shapiro engage the question of whether the U.S. ought to unilaterally strike at Syria despite the absence of a U.N. Security Council authorization.  Hathaway and Shapiro suggest, though they don't quite declare, that the answer is no.  Striking without U.N. approval, they note, would violate the U.N. Charter to which the U.S. is a party and thus would be illegal.  Doing so would set a precedent that would make it easier for other nations, in the future, to take unilateral military action, perhaps with less justification than the U.S. (in light of Syria's use of chemical weapons on its own people) now can claim.  This in turn would threaten to return the world to the pre-U.N. status quo in which nations (at least powerful nations) routinely struck at other nations on trumped-up grounds.  "The question Congress and Mr. Obama must ask now," write Hathaway and Shapiro, "is whether employing force to punish Mr. Assad’s use of chemical weapons is worth endangering the fragile international order that is World War II’s most significant legacy."

I think this is the right way to put the question, although there is some nuance here that, to their credit, Hathaway and Shapiro seem to recognize.  The temptation for many Americans, including many lawyers, will be to question whether international law is really the sort of law that imposes an obligation of obedience on its subjects, particularly in the face of a pressing moral crisis like Assad's use of chemical weapons.  But international law is law; as a party to the U.N. Charter, the United States has an obligation to respect its authority just as Americans have an obligation to respect the authority of our Constitution and laws.  (Indeed one could argue that the U.N. Charter has more binding force than most domestic laws.  After all, the U.S. voluntarily became a party to the charter, but among U.S. citizens, only naturalized citizens and government officials have affirmatively sworn allegiance to the U.S. government and its laws.)

The fact that international law, including the U.N. Charter, is legally binding on the United States does not end the debate, however.  Even valid law cannot impose an absolute, indefeasible obligation to obey its commands; sometimes the demands of morality outstrip those of law.  This is why I like the way Hathaway and Shapiro have put the issue, as a choice between the arguments for obeying the law (preserving "fragile international order") and the arguments for disobeying it in the name of morality (punishing Assad's use of chemical weapons -- and, one might add, possibly deterring their future use).  It's important to recognize that the presence of valid law implies a choice, not a blind duty of obedience.  If the law generally is good law, of course, then in the vast majority of cases the choice is an easy one, so easy perhaps that it doesn't seem like a choice at all:  Of course we should obey the law.  But in some extraordinary cases the choice becomes very hard, because obeying the law is likely to bring dire moral consequences.  The Syria situation seems to me like such an extraordinary case.  There is much to be said for disobeying the law in this instance in the name of preventing a greater evil.

One consideration that Hathaway and Shapiro don't emphasize, however, is the importance of being willing to take one's medicine when one willfully disobeys the law in the name of a greater moral good.  The modern tendency is to equivocate around inconvenient legal obligations -- to mount sophistic arguments for why one isn't really disobeying the law at all.  But the choice between obeying the law and serving a higher moral cause must be a real choice, with real teeth attached to it.  If one decides to disobey the law in the name of morality, than one must be prepared to suffer the legal consequences of one's actions.  Without the very real threat of legal consequences for disobedience -- even for justified disobedience -- people would be far too ready to engage in unjustified disobedience, wrongly confident in the strength of their own unilateral moral judgment.  The threat of legal sanctions for disobedience is necessary to make would-be disobeyers think at least twice before deciding that morality justifies their actions.

It is highly unlikely, however, that the U.S. would suffer any formal legal sanctions for striking Syria without Security Council authorization.  This is true for the same reason that the Security Council is highly unlikely to provide authorization in the first place:  At least one Council member would veto any such resolution.  (The U.S. itself holds such a veto as a permanent Security Council member.)  The absence of any real threat of sanctions for disobeying the law serves, to my mind at least, as a reason against disobeying the law and striking Syria unilaterally; we (that is, we collectively -- the United States, as represented by our government) are that much more likely to be overconfident in our own judgment and insufficiently respectful of the value of international law without the prospect of significant punishment for disobeying that law.

At the same time, the blatant procedural flaws within the Security Council -- the presence of five powerful permanent members (China, France, Russia, the UK, and the US) with absolute power to veto Council resolutions -- strengthens our reasons to act unilaterally by undermining the procedural fairness of the law.  I have argued in my scholarly work that the authority of law rests in large part on the fairness of its procedures -- on the capacity of those procedures to avoid or resolve disputes in a way that can be perceived as relatively impartial and thus can be accepted by those subject to the law.  The stacked deck that is the Security Council flies in the face of this essential impartiality, weakening the U.N. Charter's claim to be validly binding law in the first place.

All of which makes this, for me, a very close case.  The U.N. Charter is law, binding upon the U.S. and other nations, and it is law that, as Hathaway and Shapiro note, serves a vital dispute-avoiding purpose.  But it is law that is rather saliently compromised by procedural dysfunction within the institutions charged with carrying it out.  And, in this instance, it is law whose claim to our obedience is strongly opposed by a forceful moral argument that action must be taken in Syria -- although we should be wary of being overconfident about our own moral judgments in this respect.

In the end, I lean toward doing the following:  Striking against Syria in a militarily appropriate fashion, unilaterally if need be, and doing so in full acknowledgment that the action is a violation of our legal obligations under the U.N. Charter.  But there is no good, clean choice here -- especially since people are likely to die either way.  Thank God I'm not the President.

Thursday, August 8, 2013

Our autocratic Chief Justice

A fascinating op-ed by Linda Greenhouse in yesterday's Times points out that Congress has delegated to one man (or, hypothetically, one woman) an enormous amount of unreviewable power, including the sole authority to appoint judges to the Foreign Intelligence Surveillance Court (much in the news these days) and to a surprising number of other important judicial bodies.

Greenhouse first looked into the issue because of reports that the current Chief Justice, John Roberts, has filled 10 of the FIS Court's 11 seats with judges nominated by Republican presidents.  (Only current life-tenured federal judges are eligible to serve on that court.)  But, as she discusses, the issue is much bigger than the FIS Court or John Roberts.

We tend to think of appeals-court judges, and particularly Supreme Court Justices, as effectively sharing power with other coequal judges or Justices on the same court:  Roberts can't unilaterally impose his will in deciding a case because he needs at least four other Justices to go along with him.  In a strikingly large number of instances, however, Roberts (or any other Chief Justice) can in effect unilaterally impose his will, by deciding who will serve on other important judicial bodies created by Congress.  And, unlike with most Presidential appointments -- which must be confirmed by the Senate -- the Chief Justice's decision of whom to appoint is entirely unreviewable in these cases.

We can't blame Roberts or any particular Chief Justice for this (although we might wonder why 91% of Roberts's appointments to the FIS Court apparently share his own political party).  The blame lies with Congress, which repeatedly has followed the path of least resistance by delegating to someone else the responsibility of filling these important positions.  Not that Congress should be in the business of making every special-court appointment itself by legislation -- that would be way too cumbersome.  But to delegate huge swaths of that authority to a single official (the Chief Justice) is dangerously irresponsible, especially given the increasing longevity of any given Chief Justice's tenure.  (Roberts himself, now 58, was only 50 years old when he assumed office in 2005.  There is every reason to expect him to serve for another 20 years at least -- that is, until 2033.  That's a long time in which to exercise the sole discretion to choose members of the FIS Court and other judicial bodies.)

Is there a better alternative?  This is a discussion that's just beginning, but here's a tentative idea:  a single panel of sitting federal judges charged with making appointments to these other special courts and judicial bodies.  The panel's members could be nominated by the President and confirmed by the Senate, like other high-ranking officers.  Each could serve for a limited term, with the terms initially staggered so that the panel's membership would turn over gradually.  There are weaknesses in this proposal, of course, including the problem of securing appointments by Senate confirmation in today's polarized political climate.  But the notion of a single panel with rotating membership to make these appointments seems superior, to me, to the current default mode of simply letting the Chief Justice do it.

Much debate about the institutional role of the Supreme Court centers on the constitutional requirement of lifetime tenure, which can't be changed without a constitutional amendment.  The vast appointment authority of the Chief Justice, though, is a problem created solely by Congress, and so it's a problem that Congress can and should fix.

Friday, June 28, 2013

Winning ugly: the Court's same-sex marriage rulings, Part II

In my post yesterday, I explained my view that the Supreme Court's decision this week in United States v. Windsor was an "ugly win" -- a victory for gay rights, but a victory that is heavily qualified and that came at the expense of good legal craft.  I also suggested that the ugliness of Windsor might have been by design and might even have been necessary.

Hollingsworth v. Perry was an ugly win too, probably for many of the same reasons, although Perry was in some respect both less ugly and less of a win than Windsor.  At issue in Perry was California's Proposition 8, a voter initiative that amended the state's constitution in 2008 to legally define marriage as a union between one man and one woman.  (California permits same-sex "domestic partnerships," which carry the same legal rights and obligations as marriage without the name.)  Same-sex couples wishing to marry in California sued the state in federal court, claiming that Prop. 8 violated both the equal-protection and due-process guarantees of the federal Constitution.  The district court ("district court" is the name for trial courts in the federal system) issued a sweeping opinion ruling for the plaintiffs, asserting that Prop. 8 should be subjected to strict scrutiny (for an overview of levels of scrutiny, see yesterday's post) and holding that the law failed to survive even the more-deferential rational-basis review.  On appeal to the Ninth Circuit, the Court of Appeals affirmed the district court's ruling, but on substantially narrower grounds, holding that because Prop. 8 deprived same-sex couples of a then-existing right to marry for no good reason, it could only have been motivated by animosity against homosexuals, which is not a legitimate state interest under the Romer decision (also discussed in yesterday's post).

We have a pretty good indication from Windsor that five current Justices (Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) believe that laws prohibiting same-sex marriage violate the Constitution.  So it was well within the realm of possibility that a majority of the Court would rule against Prop. 8, either on the broad grounds employed by the district judge or, more likely, on the narrow basis relied upon by the Court of Appeals.  But of course that's not what happened.

Instead, three of the Court's center-left Justices (Ginsburg, Breyer, and Kagan) joined with two conservatives (Scalia and Chief Justice Roberts) in an opinion dismissing the appeal for lack of what lawyers call "standing," that is, capacity to pursue a claim or an appeal in federal court.  And while Roberts's opinion for the Court is a finer specimen of legal argument than Kennedy's in Windsor, it's hardly a Holmesian model of persuasion.

Thursday, June 27, 2013

Winning ugly: the Court's same-sex marriage rulings, Part I

I don't take naturally to blogging, as will be obvious to anyone who's tried to follow this blog since its inception earlier this year.  I suppose I'm too verbose for the blogging format; I persist in thinking that lots of things are too complicated to explain adequately in a few quickly composed paragraphs.  That, and I'm not a very good on-the-spot thinker.  It usually takes me a while to organize my thoughts enough to say something even marginally worthwhile and to say it well.

And then sometimes there's an additional problem:  I find myself feeling profoundly ambivalent about something I know I should post on, and thus struggling for something incisive to say about it.

This is the difficulty with the Supreme Court's same-sex marriage rulings yesterday, and it's the reason I haven't managed to post about them until today.  As someone who supports gay rights (including same-sex marriage) in a moral sense, and who believes they properly find some protection in the Constitution in a legal sense, I celebrate yesterday's results.  But as someone who cares about legal craft -- about not just what courts decide but how they decide it and justify that decision in writing -- I'm disheartened by the decisions that produced those results.

To indulge a sports metaphor, these were ugly wins for gay rights.  The best team won, but it relied on sloppy play and some questionable calls by the umpires.

And to make matters worse (or at least more complicated), there are, on reflection, very good reasons for the sloppiness of the decisions, or at least for most of it.  It may in fact be the case that winning ugly was the only way to win at this stage of the game.

In this post, I want to focus on what is in some ways the most frustrating of the two decisions:  United States v. Windsor, in which the Court, by a five-to-four vote (dividing along predictable ideological lines), held that part of the federal Defense of Marriage Act (DOMA) violates the Constitution's equal-protection guarantee.  Unlike in the other case, Hollingsworth v. Perry -- more on Perry in a subsequent post -- the Court in Windsor directly resolved the core constitutional issue posed by the litigation.  The frustrating part -- the ugly part -- is the reasoning (if it can be called that) that the Court, in the person of Justice Anthony Kennedy, used to resolve the issue.  Kennedy's opinion was, with all due respect (and much is in fact due -- again, stay tuned), so thinly reasoned and so riddled with red herrings that I would have required a rewrite if it had been a student paper.

The DOMA provision invalidated in Windsor in essence prohibited recognition of same-sex marriages for purposes of federal law.  The plaintiff, Edith Windsor, married her same-sex partner in Canada while both were residents of New York; New York law recognized their marriage as valid (and has since been changed to allow same-sex marriages to be performed in that state).  When Windsor's spouse died, Windsor, thanks to DOMA, was denied the federal estate-tax exemption that applies to surviving spouses.  She paid the resulting $363,000 tax and then sued the government, claiming DOMA's denial of her tax exemption violated her constitutional right to the equal protection of the laws.

A majority of the Court -- Kennedy, joined by the four Justices on the center-left of the Court (Ginsburg, Breyer, Sotomayor, and Kagan) -- agreed with Windsor.  But Kennedy's opinion for the majority meandered blithely around the central issues and stated its conclusion almost as fiat.  Reading it reminded me of long car trips taken with my family as a kid; I'd be half-asleep for most of the way, lulled into drowsiness by the rhythmic hum of the engine, and would awaken suddenly to find us at our destination, with little clue about exactly how we got there.

Tuesday, June 25, 2013

Who watches the watchmen? The Court's gutting of a "crowning achievement of the Civil Rights movement" (and, not incidentally, Congress' power to enforce civil rights)

So the Voting Rights Act decision is in. In Shelby County v. Holder today, the Court invalidated section 4 of the VRA, which determines which states and localities are subject to section 5. (Section 5 is the operative provision of the Act; it requires states and localities identified pursuant to section 4 -- in practice, states and localities with a history of racial discrimination in voting, most of them in the South -- to obtain "preclearance" from the Justice Department before altering their voting policies.) Based on Adam Liptak's report in the N.Y. Times, it appears the five-Justice majority (the predictable suspects: Roberts, Scalia, Kennedy, Thomas, Alito) held that Congress could not continue to rely on voting data compiled in the 1960s in renewing the list of states identified by section 4, as Congress did most recently in 2006. As Liptak's article points out, the ruling technically leaves Congress free to reauthorize section 4 based on more-recent data; but the currently polarized Congress is highly unlikely to do that anytime soon. The result is that section 5's preclearance requirement is now meaningless, as there are no states or localities identified by section 4 to which that requirement can be applied.

There are a number of troubling things about this ruling, but the most troubling to me is the self-interested shift of constitutional power from Congress to the Court that the ruling manifests. The Fifteenth Amendment to the Constitution prohibits racial discrimination in voting by the states (or the federal government) and, in section 2 of that Amendment, gives Congress "the power to enforce" its provisions "by appropriate legislation." Section 5 of the Fourteenth Amendment similarly grants Congress power to enforce the important operative provisions of that Amendment, including its guarantees of equal protection and due process of law. But the Court, under the banner of states' rights but, one suspects, worried in fact about its own authority as the arbiter of constitutional meaning, has from the start been parsimonious in interpreting the scope of Congress' powers under these provisions. Under the Court's current doctrine, Congress cannot exercise its section 2 or section 5 enforcement powers unless it does so in a way that is "proportional" to and "congruent" with the denials of rights by the states that Congress is trying to remediate or prevent. In practice, this means the Court itself retains the authority to say, in essence, whether the problem Congress is trying to redress is severe enough to justify congressional action, and whether the action Congress has taken is an appropriate way to redress the problem.

Today's ruling continues this trend. By negating congressional enforcement under section 2 where that enforcement is not backed up with current data about on-the-ground voting practices, the Court is in essence subjecting Congress to a heightened level of scrutiny when it wields its civil-rights enforcement powers. It isn't enough, apparently, that Congress has a rational, reasonable argument that threats to voting rights still exist and that preclearance in these states is an effective way to meet those threats. Now Congress must actually prove its case to the courts before it can exercise its constitutionally delegated authority.

I think this has it exactly backwards. It makes sense to require the government to affirmatively establish a strong justification whenever it acts to deprive someone of a constitutionally guaranteed right -- although even in rights cases, as any 1L Con. Law student knows, the Court is very deferential to the government in all but a handful of contexts. But it makes little sense to require the government to affirmatively establish a strong justification whenever it acts pursuant to one of its constitutionally granted powers -- particularly when the power in question was granted precisely for the purpose of preventing or remediating rights violations by the state governments. The whole point of section 5 of the Fourteenth Amendment and section 2 of the Fifteenth Amendment was to allow Congress, using general legislation, to bypass the cumbersome process of litigation in the courts that otherwise would be necessary whenever voting or other rights are violated. By subjecting congressional enforcement of voting rights to what is essentially heightened judicial scrutiny, the Court substantially defeats that constitutional purpose.

Worse, the Court does so in a way that enhances its own institutional power. Under current law (as magnified by today's ruling), Congress in effect must get the Court's permission before enforcing voting rights, permission that (today's decision suggests) will not be forthcoming without a well-developed and contemporaneous factual record. Presumably even a statute that passes muster would have to be revisited by Congress every few years, lest the factual basis for the statute go stale. The result is a substantial shift of constitutional power from Congress to the courts, one that parallels what the Court has been doing to Congress' power to regulate commerce since the early 1990s.

The Court's legitimacy is on its firmest ground when it acts as a relatively impartial arbiter of disputes between the government and its citizens, disputes that the political branches themselves cannot be trusted to resolve because their own authority is at stake. Of course, every time the Court invalidates some state or federal statute, in some sense the relative power of the Court is enhanced. But this becomes a serious problem when the very subject of the dispute is the Court's own power; in such cases the Court cannot claim to be a relatively neutral arbiter. By subordinating Congress' authority to enforce civil rights to its own supposed authority to interpret the scope of those rights, the Court opens itself to reasonable charges that it is simply playing power politics.

Who watches the watchmen?