BeldarBlog

Federal courts refuse to hear challenge to Obama's Libyan intervention, but Congress should push back — with the power of the purse — over Obama's new Ugandan adventure

In a post about the Obama Administration's ridiculously stupid efforts to argue that the "kinetic military action" in Libya didn't trigger the War Powers Resolution and its associated reporting requirements and deadlines, I had this to say on May 21, 2011, immediately after "the day under 50 U.S.C. § 1544(b) by which Obama had to "terminate any [such] use of United States Armed Forces" if the War Powers Resolution were constitutional and enforceable:

I don't want to get into a protracted discussion on this post (or in its comments) about the constitutionality of the War Powers Resolution. However, the expiration of this deadline is essentially certain to cause someone, somewhere, to jump into federal court asking for an injunction.

I am 100% certain that when that happens, there will be very technical, very tedious, and very fundamental preliminary motions. There will be challenges to standing — the right to bring suit by a particular person or entity, and/or the capacity in which that's being done. There will be challenges as to ripeness — whether this is something that has to be decided now at all, much less on an emergency injunction basis. And most of all, there will be challenges to justiciability — whether this is even the kind of dispute that the federal courts are in business to be deciding, and in particular whether this is the sort of "political question" that the federal courts are supposed to refuse to get involved in.

So as you're imagining the whole range of potential scenarios that could unfold from this — to the continuing chagrin of Barack Obama, progressive superhero who's now committed a set of unforced, imbecilic, spectacularly ironic mistakes on Libya — consider this one, because it might well happen:

Congress: Hey SCOTUS, make him stop it! Make him follow the law we passed to tell him how to do his Commander-in-Chief gig! Order those ships to come home and those planes to stop flying right now!

POTUS: No, no, SCOTUS, that's my gig alone, and neither you nor Congress can tell me how to do it.

SCOTUS: We're just not going to talk about this subject. Go away.

[Courthouse door slams closed; POTUS and Congress trudge away, grumbling and snarling at one another. Exeunt all.]

I actually think that's the single most likely scenario, if it were pressed that far by the appropriate principals — who themselves may be precisely the ones who refuse to seek judicial involvement, because Congress has an interest in leaving this entirely unresolved, too.

Today — on the very day the non-war war finally achieved the laudable (and bizarrely denied) goal of regime change via decapitation — in proceedings styled Kucinich v. Obama, it has turned out that my predictions about how the federal courts would refuse to even hear such a challenge were proved absolutely correct. From the Blog of Legal Times (link in original; hat-tip Above the Law and WSJ Law Blog):

A federal judge in Washington has dismissed a suit challenging the Obama administration's legal justification for military action against targets in Libya.

The suit, filed by a bipartisan group of congressmen in June in U.S. District Court for the District of Columbia, sought a ruling that the U.S. military strikes are unconstitutional without a congressional declaration of war....

Responding to the suit, the U.S. Justice Department said the claims raise political questions that federal district judges are not authorized to entertain and that the plaintiffs do not have standing to sue in the first place.

Walton agreed, ruling that the lawmakers do not have standing. He rejected the alleged injury the lawmakers claimed—that they have been deprived the ability to vote on a war declaration.

In a footnote, Walton questioned the plaintiffs’ decision to sue given legal precedent, he said, that didn't bode well for the members of Congress.

“While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law,” Walton said.

Take a step back. Pretend we don't have "Republican" and "Democrat" labels here, or even "conservative" and "liberal" labels, and that we're just looking at this solely as a test of power between the respective branches of the federal government.

Looking at it as part of that big picture, today's ruling granting the Administration's motion to dismiss made no new law at all: It didn't weigh or decide any facts at all; it didn't endorse Obama's argument that the War Powers Resolution wasn't implicated. It just announced that this handful of Congressmen lacked standing "either in their capacity as Members of the House of Representatives or because of their status as taxpayers" to challenge Obama's actions in federal court, even if the court assumed that all the facts they alleged were absolutely true.

This exact result was a predictable outcome, one that I (and many others) had in fact predicted — so predictable that the federal district judge who first heard it became rather grumpy about having to waste his time on it. (Indeed, one of the prior precedents on which Judge Walton relied was a 2002 case in which this same lead plaintiff, Congressman Dennis Kucinich, had tried to sue President George W. Bush over the U.S. withdrawal from the 1972 ABM Treaty without Congressional approval.) But is either today's court result or Kadafi's death likely to result in a new extra-legal precedent, an unenforceable but nevertheless notable practical precedent in the grand interplay of constitutional checks and balances in the 21st Century?

Naw, not so much. The mild and short-lived court scuffle between Obama and a handful of Congressmen here was just an isolated example of something we already knew:

If Congress, acting as Congress (as opposed to acting through its individual members who're trying to be litigants in court), declines to exercise the express powers granted Congress by the Constitution — chief among them, the power of the purse — to protect other express privileges and responsibilities also conferred upon Congress by the Constitution, including the exclusive power to "declare war," then we're not seeing an actual constitutional confrontation.

With the opposition to Obama's Libyan adventure, then, in Obama's silly efforts to claim the War Powers Resolution didn't really apply, in the resulting Congressional grumbling, and in this lawsuit, we've only seen a kabuki show intended to fool the easily fooled. Obama calculated that he could get away with something like the Libyan adventure — and this time, Congress has clearly let him. That is the only important take-away message.

*******

But as I've said here earlier this week, I do not think Congress should continue to let Obama get away with sending American ground forces into conflict in Uganda with neither Congressional approval nor even the merest hint of a shadow of a whisper of a threat (imminent or even just gathering) to significant American strategic interests. Such interests do not exist in Uganda. No, this particular frolicsome detour — which is indeed likely to become extremely "kinetic" at some times and places (since that's part of what Special Ops guys are known for, after all, and they're being sent specifically to catch and kill tyrants) — cannot possibly be justified under any theory other than that America is the world's policeman.

If the GOP and those Dems who opposed the Libyan adventure voted together, they could certainly override even a presidential veto of legislation defunding this sub-Saharan Africa adventure. And the GOP by itself, with its majority in the House, could certainly refuse to include funding for it in their next appropriations bill.

This is a confrontation that needs to be had. Even though the scale and risks and expenses of the sub-Saharan Africa adventure may be smaller than what we're doing in Iraq, Afghanistan, or even Libya, the Uganda operation pits the Executive's and the Legislature's respective responsibilities and powers against one another far more vividly: This isn't a Cold War-era "proxy war" like that conducted over Nicaragua in opposition to the Soviet Union's challenge to the Monroe Doctrine and American interests close to home. No one in Uganda is pursuing WMD capabilities or harboring and supporting terrorists; it has no oil wealth or other strategically important position or resources. It has nothing at all, in fact, except some very bad African men who are regularly and enthusiastically killing and terrorizing other Africans.

If Barack Obama wants to host a telethon to raise private contributions to help the victims, that would be peachy. If he wants to propose sanctions or other legislation, or encourage Congressional resolutions on relevant topics, or even to try to gather support from our allies and other countries whose interests are more directly involved, or who simply share our humanitarian concerns, I'll not say a word of criticism. And I am, in general, a strong supporter of a strong Executive Branch, with a great deal of practical and implied power to respond to emergencies, conduct American foreign policy, and direct the U.S. military as Commander-in-Chief both in and out of war.

But this is too much. This is genuinely unprecedented, and the practical precedent it threatens to set is a bad one. The GOP presidential candidates need to start talking about this, because it's a mark of how fundamentally flippant Barack Obama is when it comes to his execution of his Oath of Office and the Constitution. But Congress needs to push back, current electoral politics notwithstanding, because all of its members, Republican and Democrat, have an institutional duty to respect and preserve Congress' proper role in our system of checks and balances.

The Obama Administration, women, and the nunc pro tunc son-of-a-bitch rule

Regular readers may recall that after law school and a one-year judicial clerkship, I spent six years in the early 1980s working as an associate in the Trial Department of Texas' oldest law firm, BigLaw stalwart Baker Botts. When I started there, in keeping with the practice of that firm at the time, I assisted more senior lawyers on some very big cases, but I was also handed a "docket" of my own — a collection of already-in-progress small and medium-sized cases deemed appropriate for handling by an associate — with the instruction to "do the necessary." When new cases of that sort came in, the department head or his assistant typically distributed those among the department's associates. This, in turn, was accomplished by walking into the chosen associate's office and dropping the file (typically comprising only a new lawsuit just served on a firm client and a transmittal memo) on the associate's desk, always with the instruction to "handle this to conclusion."

The firm wasn't prone to hiring idiots, so we knew that implicit in these dramatically sparse instructions was the expectation that we would seek guidance, instruction, inspiration, review, and criticism in connection with our own efforts to "do the necessary" and "handle to a conclusion." And the available teaching faculty included a very deep and very diverse set of several dozen Trial Department partners and associates whose experience ranged from other just-starting lawyers to senior partners with individual experience measured in decades and jury verdicts numbered in the hundreds.

It was a wonderful system. Through it, in some respects I taught myself my profession; and in other respects, through it I learned my profession studying at the knees or elbows of those with more, and sometimes great, mastery.

*******

The system did have some dark aspects to it, though. And one of them related to the "up or out" nature of BigLaw associate status. Most associates didn't become partners; most left before they were up for partnership consideration, sometimes because they'd decided BigLaw wasn't for them, some because they wanted to go in-house with clients or become entrepreneurs; some wanted to change practices (e.g., by moving to a plaintiffs' personal injury firm); and a relatively small number were gently nudged into looking elsewhere because their performance was thought below the firm's expectations. And every time an associate left, his or her entire docket had to be re-assigned.

I remember discussing that process one day with a more senior associate whose advice I had sought in trying to figure out one of the personal injury defense cases I'd inherited from a just-departed associate whom I'll call "Bob." The case was dangerous; its development by Bob had been just barely adequate; and it urgently needed lots of work, much of which (like finding and working up expert witnesses) could have been done better if it had been started much earlier. "Wow," I commented, "I'm surprised the firm thinks I can handle this."

My older colleague said, "Well, you know, there's a benefit to you in getting to take over a case like this that's already so close to trial. Are you familiar with the 'nunc pro tunc son-of-a-bitch rule'?"

"The what?"

"You know the Latin phrase 'nunc pro tunc'?" he asked.

"Sure," I replied, "it means 'now for then.' Like with a revised judgment submitted for the purpose of completely replacing an earlier judgment that had some important error in it. Something the law deems a complete and retroactive replacement, as if the earlier version had never even existed. Neat phrase, powerful stuff! But what's that got to do with Bob handing over this case to me when he left the firm?"

"It means," he answered, "that Bob is your ready-made 'nunc pro tunc sun-of-a-bitch'!" But I continued to stare blankly at him.

"Look," he explained more patiently, "You took over handling twenty-something of Bob's other files, the whole docket for [Valued Firm Client from the Fortune 500 List], when he left. You've seen his work closely and in volume now. Was Bob a good lawyer?"

"Yes," I said truthfully. "This is the only case he was working on that really seemed to have gotten a bit beyond him."

"That's right," he said, "and while he was here, everyone liked Bob, and they all genuinely wish him well in his new job. He'll be a respected alumnus of this firm for the rest of his career, and we may refer some business his way or support him if he decides to run for some judgeship. Bob's a great guy, and a solid, competent lawyer. I mean that.

"But," he continued, "every case has the potential to go south in a hurry. This looks like one you're going to have to take all the way to a verdict; I don't think it can be settled at anything close to what our client is willing to pay, or that the client should be willing to pay. If you're not losing any cases —"

We both finished the sentence in unison: "— you're not trying enough cases!" This is a truism, a fundamental tenet of the trial lawyer's faith, already drilled into me when I'd been a mere summer clerk, and at more than one very fine law firm.

"And yet," the older associate continued, "you don't have to worry about the microscope only being put on you if you end up taking a thrashing from the jury, or about taking all the blame yourself, because Bob is ...." He waited for me to finish this thought too.

I answered hesitantly: "... the son-of-a-bitch who screwed this case up before I ever touched it?"

He made the "Charades" gesture: index finger to the tip of his nose. "Exactly! Bob's a great guy, but now he's gone. So if need be, he becomes a son-of-a-bitch. Retroactively. Just as if he'd always been a son-of-a-bitch. Nunc pro tunc, now for then. And it's an irrebutable presumption."

"Meaning," I said, "not just a presumption, but really a pre-determined conclusion that can't be challenged."

"Meaning exactly that, yes. And also meaning that Bob's not around anymore to rebut it. He'll probably never even hear about this. He'll never know that, for purposes of this case, 'Bob's a hale fellow well-met' got replaced with 'Bob was a lousy son-of-a-bitch who screwed this pooch beyond rescue.'"

I rubbed my chin and pondered this for a minute. Then I asked a question that seemed obvious, and was: "The nunc pro tunc son-of-a-bitch rule won't impress clients a bit, will it?"

"No," answered my slightly older and much wiser colleague. "This client's legal department in Chicago probably hasn't even noticed that you've taken over this file, despite your letter. We're all just fungible Baker Botts associates to them. You score no points at all by blaming Bob to them, so don't even think about it. You may have a nunc pro tunc son-of-a-bitch in waiting, but you still better win the case if it possibly can be won."

I thought a little more. "And the Trial Department head who assigned this case to me —"

"— knows exactly how big a challenge he just handed you," he confirmed. "The 'nunc pro tunc son-of-a-bitch rule' won't work on him, either, nor on anyone in the partnership who's evaluating your progress. You should always assume that they already know everything, but then point out everything important anyway, as a back-up and because you're supposed to, and then send them a memo as a back-up to that too. But yeah, they know they've just given you a big challenge, and they're waiting to see what you do with it."

"So who will the 'nunc pro tunc son-of-a-bitch rule' really help me with?" I asked.

"Only people who don't know any better," said my friend, "like, maybe, your parents or your girlfriend or your buddies at some other firm, when you're trying to explain to them how the firm's good client got tagged by the jury for umpty-ump million dollars while you were defending them." He stopped and seemed to contemplate the consequences of what he'd just said as if something new had occurred to him. "I guess," he finished, "it only works on people who are clueless and who are willing to be fooled."

"I see," I said.

*******

I thought of the nunc pro tunc son-of-a-bitch rule, and who it may be effective in fooling, when I watched the video of White House Chief of Staff Bill Daley blaming his immediate predecessor — famed ballet dancer, idiot savant investment banker, and Chicago-Way politician Rahm Emanuel, now mayor of Chicago — for reports that women staffers felt they had been "marginalized" by senior male members of the early Obama administration. If you can't figure out why I made that association, then you're precisely the sort of person the 'nunc pro tunc son-of-a-bitch rule' was created in order to influence.

Review: Thumbs up from Beldar for James Hime's novel about 9/11, "Three Thousand Bridges"

There's considerable truth to the cliché that inside of every lawyer lurks a wanna-be novelist. Indeed, it's true even of tax and real estate lawyers. The surprise is when a lawyer actually manages to write a readable novel — much less a compelling and intensely authentic one!

But the proof that can happen is "Three Thousand Bridges," a new novel by Jim Hime — with whom I worked when he was a very capable young tax and real estate partner, and I was a trial department associate, at Baker Botts in the 1980s.

I'd been pondering buying a Kindle for some time, and when I learned (via Facebook, from another Baker Botts alum) that Jim's new book is being released only as an e-book, my curiosity about both book and gadget crossed the tipping point, and "Three Thousand Bridges" became my first Kindle purchase through Amazon.com.

(Of the Kindle, I'll say this: I like it better than I thought I would, and getting used to it was easier than I expected. The good things about it — price; capacity; ease of content delivery; spectacular battery life; and superb text legibility on a screen that doesn't tire your eyes — are very good indeed. In other ways, it very much reminds me of an Apple Macintosh computer circa 1986: its technology and interface both seem reasonably elegant but seriously dated. I suspect the Kindle is better adapted for the simple and singular task of serious and sustained reading than an iPad or other comparable device, but I haven't owned one of those yet, so I'm just guessing based on my limited experience trying to read other novels on my very-good-quality desktop LCD monitor. Reading on the Kindle beats that by a wide margin.)

Hime is, and writes like, a native Texan who's also grown wise in the ways of the world outside the Lone Star State. "Three Thousand Bridges" weaves a tale that incorporates some very powerful and poignant recent history of our state and our country. Here's an accurate blurb from biographer Hershel Parker, as reprinted on Hime's website:

The mystery writer James Hime made his mark with The Night of the Dance (an Edgar finalist) and Scared Money, both heralded by other novelists and reviewers for memorable characters, taut prose, and a comedic take on how things and people work. Hime nailed dialects as if no one else had ever listened to Texans talk, and readers settled back to await more adventures of Jeremiah Spur and Clyde Thomas. Adventures will follow, we are assured, but Three Thousand Bridges is of a different order of achievement, not a mystery novel but a novel with mysteries. Its unlikely and at first unlikable hero, a Viet Nam veteran, is the outrageous and outraging Texas oil supply man, Cole Simms — a belated cousin, we recognize, of Mark Twain's Pap Finn. In sculpted prose, pacing his revelations, Hime traces his bedeviled hero's journey across the South just after 9/11, toward Ground Zero and toward self-insight. Hime, who escaped from the South Tower of the World Trade Center with a printout of The Night of the Dance after witnessing the crash of American Flight 11 into the North Tower, has created a classic narrative of transforming American experiences, personal and national. After its wide initial popularity, I predict, Three Thousand Bridges will endure in college classrooms as a powerful, accessible testimony about an unthinkable time.

And I enjoyed, and agree with, Arden Ward's review of the book and interview with Hime, which includes some marvelous facts and factoids like these (bracketed portions in original):

Hime was halfway through his descent, on floor 35 or 36 he recalls, when the building rocked violently — "Almost enough to knock you off your feet," he remembers. Still, he kept walking, finally reaching the street.

"That was the first time I saw the gaping hole in 1WTC [the north tower of the World Trade Center] and the fire blazing out of 2WTC at just about the level we had been at maybe 30 minutes earlier." ...

Hime began wondering about his father, who hadn’t known he was in New York City at the time of the attack. "I was fascinated by the premise of what it would have been like to be a father whose son goes missing in New York City on that day. Suppose that no one knew why he was there to begin with, and you wake up on the morning of 12 September and know only that he was missing. What would you do?"

It's pretty much impossible to write about Texas without bumping into stereotypes and clichés. My favorite thing about this book, I think, is the way Hime embraces those — and then proceeds to bend and twist them to one degree or another, in ways that turn out to be quite funny. "Three Thousand Bridges" gets the Beldar Stamp of Texas Authenticity. It's a danged good book, and I'm proud of my friend for writing it.

Should the bottom 10% of 1Ls quit?

UCLA law prof Eugene Volohk has this provocative post whose title is a hypothetical student's question: "“I Got Awful Grades My First Year in Law School. Should I Quit?”

Prof. V's own observations are intriguing, as are many of his commenters', and I left a trio of comments myself (starting here).

Voting with your (shackled) feet

I'm not sure whether this "prison voucher" idea from Prof. Alexander ("Sasha") Volokh is just crazy or crazy-brilliant, but it's certainly clever and intriguing, and it would be a wonderful topic for a spirited three-cornered debate (preferably among friends and over good food and drink) between libertarians, social-values conservatives, and liberals.

Beldar scoffs at Ackerman's notion of a magical priesthood of special government lawyers

His bio page at Yale tells us that Bruce Ackerman is the "Sterling Professor of Law and Political Science at Yale, and the author of fifteen books that have had a broad influence in political philosophy, constitutional law, and public policy." Prof. Ackerman has credentials out the wazoo, but there seems to be something very wrong with his basic understanding of government, lawyers, and government lawyers. As part of an NYT op-ed decrying Pres. Obama's defiance of the War Powers Resolution, and in particular on Obama's refusal to accept and follow the advice of the Office of Legal counsel with respect thereto, Prof. Ackerman wrote this:

If the precedent Mr. Obama has created is allowed to stand, future presidents who do not like what the Justice Department is telling them could simply cite the example of Mr. Obama’s war in Libya and instruct the White House counsel to organize a supportive “coalition of the willing” made up of the administration’s top lawyers. Even if just one or two agreed, this would be enough to push ahead and claim that the law was on the president’s side.

The premise of that last sentence is spectacularly wrong.

Prof. Ackerman seems to see the government lawyers advising the President as some sort of official priesthood whose special blessings are essential prerequisites to the legitimate exercise of presidential power under the Constitution. And if the wrong priests are being relied upon, Prof. Ackerman seems to believe that this President's actions, and those of future Presidents, may become some sort of legal heresy. Ackerman scolds: "Mr. Obama is creating a decisive and dangerous precedent for the next commander in chief who is unlikely to have the Harvard Law Review on his résumé" — as if that credential has some constitutional significance.

But that's just silly. Whether they're from the Office of Legal Counsel or the Department of Defense any other unit of government, those lawyers are no more than advisers. Neither Barack Obama nor any other POTUS needs even one lawyer to bless what he's done or opine that it's okay — and that doesn't vary a whit based on whether the POTUS is or isn't also a lawyer. It's not that something becomes legal just because the POTUS says so. But the decision of the POTUS is the decision of the executive branch because the Constitution puts the POTUS at the head of that coordinate branch of government — whether the POTUS is backed up by 500 lawyers, one lawyer, or no lawyers at all.

If Ackerman can't grasp and apply the distinction between counselor and principal, he shouldn't be teaching law school — not even at Yale. As another Yale law grad with whom I'm familiar wrote a few days ago:

The President gets to make these calls [as to which lawyers, if any, he chooses to rely upon]. Of course, when the President makes this sort of a call, in a war that never had any sort of Congressional approval, it’s pretty risky — or, if you prefer, “gutsy” — but that choice is the President’s to make, and the political risks are his to run.

Exactly. Obama's taken the position that his administration isn't violating the War Powers Resolution — not because it's an unconstitutional infringement on the POTUS' constitutional responsibilities and powers as commander in chief, but because our military forces supposedly aren't involved in "hostilities." The voters who consider his reelection bid can and should hold him accountable for that ridiculous position (and the overweening vanity which permits him to insist upon it), regardless of whether that position was or wasn't blessed by the particular number and brand of orthodox legal priests upon whom Ackerman thinks all presidents should rely.

Beldar agrees with Yoo on War Powers Resolution

I don't subscribe to the Wall Street Journal and thus can't get past its pay-wall to read Prof. John Yoo's op-ed today about the Libyan conflict and the War Powers Resolution. But I certainly agree with the summary he's posted at The Corner:

The treatment isn’t to force everyone to obey an unconstitutional law, the War Powers Resolution, that is both untrue to the Framers’ original understanding and unsuited to the exigencies of modern war. The New York Times’s [editorialists'] solution is the equivalent of using leeches on a patient with the common cold. The right constitutional answer (as I explain in this morning’s Wall Street Journal) is to toss the empty symbolism of the Resolution and meaningless lawsuits aside and let them fight it out using their own powers — commander-in-chief versus the purse — in the political process.

That's exactly right. The War Powers Resolution is the equivalent of Congress stamping its feet and shouting, "I'm Congress, dammit!" It's drama without substance.

The Constitution expressly gave Congress ample push-back power against the Executive through the power of the purse. If Congress wants to induce different (and better) behavior from the Executive, it can de-fund what he's doing. But if that imposes costs on Congress, in the form of political capital spent and political risks undertaken if Congress has misread the public, then Congress must bear those costs.

The Constitution is much more clever and much more subtle than the War Powers Resolution. And it's the Constitution, and the structure it creates with the intentional and continuous dynamic interplay inherent in that structure, that ultimately matters.

California Prop 8 and Beldar's tale of a trial judge who based his ruling on a coin flip

Back when I was a BigLaw lawyer and regularly represented mostly big companies, one of my best and favorite clients was an international investments concern whom I'll call "Big Mall Owner Inc." for purposes of this war story.

Big Mall Owner Inc.'s investments portfolio included lots of commercial real estate, and in particular it was the owner and landlord of a large, multi-level indoor shopping mall built on what were then the outskirts of Houston in the late 1970s. Although the mall was originally a fairly posh location, its surrounding neighborhood had since declined. Big Mall Owner sought my services as its courtroom lawyer on this occasion because the mall's anchor tenant — a large Texas department store chain, which I'll very creatively call Large Department Store Corp. — had recently decided to make that location into its "discount outlet," at which Large Department Store would sell seconds, returns, and remaindered goods at a discount.

This angered the other tenants, and they complained to Big Mall Owner and threatened not to renew their own leases. Big Mall Owner was concerned, too, because every such mall looks to its anchor tenant(s) to set the tone, and draw appropriate crowds, for the entire mall.

But Large Department Store was still paying its rent in full and on time. It insisted that it was doing nothing contrary to the lease, and refused to negotiate any change in its use of this location.

The relevant lease documents, like most such, were the product of arms'-length bargaining, but they still generally favored the property owner. They contained several requirements about the standards that the anchor tenant was to maintain, but those were necessarily somewhat subjective. And in general, it's much, much harder to evict a tenant who's paying its rent, and who has ample resources to fight back over an alleged non-monetary default.

Nevertheless, per its rights in the lease documents, Big Mall Owner's representatives (at my direction) did a snap inspection during which they documented, in writing and on video, several dozen different conditions which we thought amounted to breaches of Large Department Store's obligations under the lease. Not all of those violations had been cured 30 days later, but we weren't quite ready to exercise self-help remedies like a lock-out. (Lockouts done through self-help can lead to big consequential damages awards if they're later found to have been wrongful, and Large Department Store was threatening exactly that sort of lawsuit.) Instead, we filed an eviction lawsuit.

*******

Under the Texas state constitution, claims seeking a court order for the immediate possession of leased premises, whether residential or commercial, can only be filed with the appropriate Justice of the Peace of the precinct in which the property is located. Jurisdiction is both mandatory and exclusive: Even if you have a lawsuit pending in another level of the court system, and no matter whether the monthly rent is $100 or $100,000, an evicting landlord can only get the "writ of possession" it wants from a Justice of the Peace.

Texas' Justice of the Peace Courts (sometimes just called "Justice Courts") do offer jury trials to those who demand them and pay the specified jury fee, but they are not "courts of record" — meaning (among other things) that they quite literally have no court reporter who can make a record of the proceedings therein. They do keep other sorts of records and files, of course. And whether for a writ hearing or for a jury or bench trial, they do swear in witnesses and take testimony and written evidence. But their presiding Justices of the Peace need not even be lawyers.

Upon paying a nominal fee or filing a pauper's affidavit, anyone dissatisfied with the judgment rendered in a Texas Justice Court may appeal to an "of record" court, typically the "County Court" or, in large metropolitan areas like Houston with specialized county courts, to the "County Civil Court-at-Law." And since there's no "record on appeal" from the J.P. Court, one's "appeal" actually consists of a "trial de novo": The judgment of the Justice Court is vacated; everything that happened there is wiped out; and everyone starts over, almost as if the case had just been filed there to begin with.

*******

So on behalf of Big Mall Owner, I duly sued Large Department Store in the appropriate precinct's J.P. Court, and I jumped through the appropriate hoops to try to get the earliest possible hearing date: No on-going business wants to be evicted, and now that we were definitely at war, Big Mall Owner wanted to put the maximum pressure possible on Large Department Store.

On the appointed day and at the appointed time, both sides waited our turn among the folk of Harris County who had business with the court that day. The courtroom was absolutely packed, and not with lawyers but with people representing themselves: There were many other civil evictions on the docket, plus a wide range of other civil cases (mostly "small claims") and misdemeanor criminal cases too. Some of those folks grumbled (very quietly, because there's no court reporter but there is a bailiff with a gun) when the Justice of the Peace announced that on this fine morning, he was going to first hear — out of order and before anything else — the case of Big Mall Owner Inc. vs. Large Department Store Corp.

Probably six or eight lawyers trudged up to the bench, looking a bit sheepish at the professional courtesy we thought we'd just been extended. Adding in the half dozen or so client representatives and witnesses for each side sitting in the front couple of rows, our case collectively involved maybe only 10% of the people in the room, but something like 20% of the frequent bathers, and 90% of those wearing business attire.

"Who's lead counsel for Big Mall Owner?" asked the Justice of the Peace. I identified myself. "Okay then, Mr. Dyer," he said, "Since you represent the plaintiff, that means you get the privilege."

I was puzzled. We were ready to start, but we hadn't begun putting on any evidence yet, so I couldn't imagine what exactly he meant. "The privilege, Your Honor?"

"Yup," he answered. "Whatever I say to you folks today, no matter how I decide or what I decide, the loser is going to appeal and get a trial de novo in county civil court-at-law. Right?" No one disputed him, nor could anyone have.

"And I've got fifty, sixty folks out there waiting for my attention today," he continued, gesturing to the crowd filling the rest of the courtroom. "As interested as we all may be in whether Large Department Store gets to keep operating its discount outlet at Big Mall Owner's mall, I just don't have time for y'all to argue about signage and trade dress and Class A versus Class B." 

"So, Mr. Dyer," he announced, as he produced a quarter-dollar coin from a pants pocket under his robe, "Call it in the air — heads or tails!"

The whole courtroom laughed, except for me and the judge. "Tails," I said very seriously just before he caught the coin and slapped it onto the back of his opposite hand.

"Tails it is," said the J.P., "meaning the Court will enter judgment for Big Mall Owner."

Another laugh, slightly disbelieving this time, from the crowd (including the corporate representatives from both sides). But before the laugh had died down, the J.P. literally began waving a hand, shooing us away from the bench while looking down to see what was next on his docket.

"But Judge!" I gulped. "Since I won the coin toss, doesn't that mean I get my pick of the possible results?"

The J.P. stroked his chin and said, "Yes, I imagine that's right. So?"

"In that case," I responded, "please enter judgment for Large Department Store Corp."

Now the whole courtroom was silent, and my co-counsel and my client's representatives looked at me as if I had gone completely mad. I put on my best "Trust me!" face and kept the J.P.'s eye for the two or three eyeblinks it took for him to suddenly smile and wink at me.

"Done!" he exclaimed. "Now y'all are excused, next case!"

I snagged the sleeve of my lead client representative and tugged him out into the hallway. "I know you think I'm crazy," I told him. "But if we end today as the winner in this court, Large Department Store can let ten more days run off the clock before they even have to file their appeal. We'd much rather lose today, and file our appeal today, and start the clock running on the eviction proceedings in County Civil Court-at-Law today — wouldn't we? After all, it's a trial de novo. All that matters here is that we've gone through this court en route to one where it really matters."

*******

All other things being equal, when on appeal one would usually rather be appellee than appellant. That is, one would usually rather have won in the trial court than have lost. That's especially true when the issue being decided is factually intensive. Appellate courts traditionally and properly give great deference to the decisions of the trial court fact-finder — the jury if there is one, or the trial judge if it's a bench trial — on the weight and credibility of evidence. Appellate courts conduct only a very limited review of the trial court's factual conclusions. But they are obliged to give no deference at all to a trial judge's legal conclusions, and instead they're completely free to substitute their own views as to the law for those of the trial judge.

If there are no disputed facts — if the issues in a lawsuit depend solely on the proper application of legal principles to underlying facts that are undisputed — then for most purposes on appeal, the trial court's decision simply doesn't much matter. 

Such is the context in which I left the following comment on my blogospheric friend Aaron Worthing's guest-post at Patterico's about this ruling from a federal trial court in California, a post entitled Breaking: Motion to Vacate Proposition 8 Verdict Denied (slightly edited for clarity):

With due respect, this is a sideshow, Aaron.

The “trial” was a circus. No material facts were genuinely in issue. The resolution of the case can and will be made at the appellate level based on undisputed and indisputable facts; the fight on appeal should be, and will be, how the law applies to those facts.

Nothing this judge did or didn’t do will end up mattering. It’s a waste of everyone’s time and emotional energy to pay attention to it. The judgment of the district court is either going to be affirmed or reversed — I continue to believe the latter is most likely, but not before the SCOTUS gets it — but nothing this trial judge did or didn’t do will have any bearing on that outcome.

*******

"But Beldar!" you may protest. "What about ... [cue three dramatic, descending organ chords] ... the fate of Big Mall Owner and Large Department Store?"

By the time I'd reached the parking lot, Large Department Store's lead lawyer had caught on and caught up.

Within ten minutes we'd agreed on a nonbinding mediation before a retired state district judge, and by the end of that we'd discovered that Large Department Store was willing to move its discount outlet to a new location at another, slightly less posh shopping mall which was also part of Big Mall Owner's investment portfolio. An acceptable deal was found for everyone in our dispute, much corporate face was saved, rents were paid and profits made, and all the lawyers got paid (including me). Peace was restored to the kingdom.

Fools, lawyers, and Johnny Reid Edwards

Slate's Brian Palmer asks, in his "Ask the Explainer" column, If John Edwards Were To Represent Himself, Would He Have a Fool for a Client? And then Palmer spends some 600-odd words to say "maybe yes, maybe no." For example:

As with so much in the world of lawyering, there are arguments for and against attorneys representing themselves, but little data.

If you ever are in serious need of a lawyer, may a merciful God spare you from one who bases your defense on "data" in the sense that Palmer means that word.

I will admit that it would be absolutely in character for John Edwards to try to represent himself — except that he has never shown an ounce of courage in connection with this affair. The kind of guts it takes to argue to a jury on behalf of a personal injury client^* is nothing compared to the kind of guts the same lawyer would need to represent himself in a criminal case like this. That's why I think he not only won't represent himself, but he'll plead out even if it means jail time. (He'll be looking for the comparatively light, safe, friendly, and shower-monitored confines of one of the nicest federal pokeys, and he might get that.)

But let me give a much shorter, much wiser, and much more unequivocal answer to Palmer's question:

Yes!

With due respect to Palmer and anyone he consulted, every pro-self representation argument Palmer mentions is trivial, and laughably so, compared to the monumental detriment Edwards would incur from losing the specialized experience and, especially, objectivity of a seasoned criminal defense lawyer. It is not a close call. 

And Palmer underestimates — massively — the degree of difference between a civil personal injury law practice in the state courts and the defense of a criminal election-law finance prosecution in federal court. Not only would the lawyer have a fool for a client, he would be committing obvious malpractice on behalf of the fool. And I say this as someone who's had at least as much civil trial experience as Edwards himself, although I don't have anything like his personal fortune to show for it. I keep a carefully considered criminal defense lawyer (and good friend) on my speed-dial at all times, and I'd frankly advise anyone who thinks he or she has much to lose from a criminal prosecution, and everyone who ever is likely to be within six feet of an alcoholic beverage within 12 hours of driving, do the same. It costs you nothing to be prepared, and the most valuable words in the English language may be "I decline to answer until I've had advice from legal counsel, may I please contact counsel now?" — even if you are innocent as the driven snow.

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^* Arguing for a personal injury plaintiff is, by the way, something which I've had occasions to do myself, although much less often than I've been on the defense side. But it's something for which I have a healthy respect when it's done well and ethically. I'm not passing judgment here on whether Edwards' past arguments meet that standard, and I would never presume to do so without, at a minimum, reading the full trial transcripts of his past cases. Those who would, without investigation, jump to conclusions about Edwards' record as a practicing lawyer may be showing insufficient respect to North Carolina defense lawyers, jurors, and trial and appellate judges. I despise the guy, but don't quote me snippets about channeling spirits of departed children or whatever during closing argument. He may have done over-the-top things that you guess the jury bought when it shouldn't have, when in fact it was something else entirely that resulted in the jury's decision; they might even have agreed with you about Edwards. My point is that I don't know, and I doubt you do either. By contrast, I'm confident that I have an ample basis to support my opinions of Edwards as a husband, a man, and a so-called public servant.

Tony's mitigation

As I wrote last week, I respectfully disagree with Ann Althouse that Rep. Anthony Weiner (D-NY) ever had any substantial legal exposure to Twitter or Facebook or yfrog on some sort of defamation claim based on his oft-repeated lies claiming his accounts with those services had been "hacked."

So the only thing I have to say this week is this: With his tearful press conference this week, he's now effectively mitigated whatever potential defamation damages exposure he might arguably have had if Prof. Althouse was right: Nobody in the known world now believes that someone hacked his accounts, and there's no possibility of continued damage to Twitter's or Facebook's or yfrog's reputations as a result of this whole debacle.

Smart move, Tony!

(In fact, maybe mitigating his defamation damages exposure was his real motivation to "pretend" to have lied, instead of him being motivated to "pretend" to have lied because he's now the victim of that blackguard Breitbart's blackmail schemes! Yeah, that's the ticket! Alert the media! Someone email Joy Behar!)

Beldar on Katyal's quip to the Eleventh Circuit

Ann Althouse posted today about a first-hand report by Volokh Conspirator Sasha Volokh about a quip made at today's oral argument of the Eleventh Circuit case on Obamacare. The quip was from Acting Solicitor General Neal Katyal, who said, on behalf of the government in defending the constitutionality of the statute, that the individual mandate provisions of Obamacare “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."

Prof. Volohk caught Prof. Althouse's eye with Prof. Volohk's own counter-quip about Katyal's quip — a pretty obscure one about Lockner v. New York from long ago. I approve of legal humor, obscure or ribald, on blogs.

But I'll share here (slightly edited but not blockquoted) the comment I left on Prof. Althouse's blog:

--------------

As for oral arguments, speaking as a former Fifth Circuit clerk who watched lots, and who's since had a handful of chances to make them, there are exactly two rules about jokes:

1. If one of the judges makes a joke, it's always funny.


2. If one of the lawyers makes a joke, it's always wrong.

As an appellate advocate, you're trying to project the image of an earnest scholar of the law who's trying to help the court do its duty and write good precedent. (Precedent which will also — Quel miracle! — help your client.) You aren't trying to be Jon Stewart.

Lawyers who crack wise in appellate oral arguments are servicing their egos and dis-serving their clients, in my humble opinion.

This goes for smart-assedness in court in general, and it's a lesson I was taught in my first big first-chair jury trial, long, long ago.

--------------------

UPDATE (Thu Jun 9 @ wee-smalls): I just found out that Katyal is Jeffrey Rosen's brother-in-law. (Excuse me, that would be "The Jeffrey Rosen.") The universe is sometimes surprisingly orderly that way, I guess. But believe it or not, I'm actually planning (and have long procrastinated actually writing) something fairly complimentary of The Jeffrey, and so perhaps seeing his name again will remind me to do so.

Has Rep. Weiner defamed Twitter & Facebook?

Prof. Althouse has an interesting post about the alleged (*cough-cough*) simultaneous hacking of the Twitter and Facebook accounts of U.S. Rep. Anthony Weiner. I, for one, believe that Rep. Weiner is lying through his teeth about the "hacking." But I either fail to follow Prof. Althouse's thinking, however, or else I respectfully disagree with her about an observation she's made in updates to her post (link & ellipsis hers):

AND: If Weiner is lying about his accounts getting hacked, he could be sued by Twitter (and the other companies) for defamation.

ALSO: NBC News reports "Lewd Photo Sent Over Rep. Weiner's Hacked Twitter Account... his Twitter account was hacked." Not that Weiner makes that claim, but an outright assertion that his account was hacked. Twitter is getting slimed here. Does it deserve it?

My disagreement with her is almost certainly not over the relevant law. The specific definitions vary somewhat from state to state, and the common law of libel and slander have been tweaked some by state legislatures and even federal constitutional interpretations. Nevertheless, as a general rule, in order to be defamatory, a statement must not only be false, but must also be harmful in a particular way to particular interests. For example, section 73.001 of the Texas Civil Practice & Remedies Code defines a libel as —

a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Similarly, section 559 of the Restatement (Second) of Torts provides:

A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

I simply don't see how what Rep. Weiner's reported to have said — even if false — would harm Twitter's or Facebook's reputation.

Twitter and Facebook should bear no responsibility — legal or even causal — if Rep. Weiner simply chose a low-security password that someone guessed. Nor should they be responsible if, for example, Rep. Weiner used the same high-security password for several accounts and his password was stolen through some wrongdoer's hacking of one of those other services (either with or without the contributing negligence of that other service).

Simply put, unless one takes the view that every unauthorized use of an account must always and necessarily be the fault of the service which hosts that account, a statement that someone's account was hacked does not necessarily imply something harmful to the service's reputation. And I respectfully submit that such would be a patently unrealistic view — even though some people might jump to that conclusion if they have not thought through the alternatives.

The law treats this as a threshold issue to be decided by the judge "as a matter of law," even though it's necessarily based on an appreciation of what does or doesn't affect one's reputation in the community. So I'm curious:

Assume that you are the judge faced with Rep. Weiner's pretrial motion to dismiss Facebook and Twitter's (hypothetical) lawsuit on grounds that, as a matter of law, his statements did not expose Facebook or Twitter to the required sort of reputational harm. What's your ruling?

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"Marketers, it turns out, are just really good at giving us stories we want to steal"

I was fascinated by Jonah Lehrer's article at Wired entitled Ads Implant False Memories, the ending sentence of which I've quoted in the headline above. (Hat-tip Prof. Oren Kerr at Volokh Conspiracy.)

Follow-up bonus questions:

Trial advocates are, in some respects, another sort of "marketer," and the most effective ones are inevitably good story-tellers. Could lawyers find a way to take advantage of the phenomenon described in this article?

And if we could, would it be ethical?

Beldar still opposes filibusters of judicial nominees by either party

Were I a U.S. senator, I would have voted against, and spoken out in bitter and profound opposition to, the confirmation of Berkeley Law Prof. Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.

I nevertheless join my good friend Hugh Hewitt, for essentially the same reasons he states, and that I've blogged about before: We both regret the "new norm" under which GOP senators — in explicit payback for past and vastly more egregious abuses by Dems — have filibustered a judicial nominee to prevent the Senate from giving an up or down vote as part of its constitutional "advice and consent" responsibilities.

I'm not angry at my home-state senator, John Cornyn, for going along with Minority Leader McConnell on this. (Sen. Hutchison is shown as "not voting," but I haven't looked into why.) I certainly would have encouraged, and participated actively in, using the Senate debate to express opposition to this nomination, because it's one that only a fraction of the American people will ever focus upon either way, and that's a damned shame: A shockingly bad nominee like Prof. Liu ought be hung around Obama's neck for November 2012 to illustrate the likely consequences to the federal bench of returning Obama to office.

Yes, giving someone like Prof. Liu life tenure on a federal appellate bench is a very stiff price to pay to vindicate this principle. But it's the price built into the constitutional system: Elections have consequences. So after very thorough debate, I would ultimately have voted for cloture were I in Sen. Hutchison's or Sen. Cornyn's shoes. The Senate's obligation is to serve the Constitution and, through it, the senators' constituents (collectively, "We the People") — and that remains true even when the urge, and the practical political need, is to dish out some pay-back.

I therefore also agree with Hugh that "the senior members of [both parties in] the Senate ought to meet to consider a formal rule change that will return the body to its long-established practice of giving all judicial nominees who emerge with a recommendation of confirmation from the Judiciary Committee an up-or-down vote." Do your damn jobs, folks.

To Nato we sail, across a wide sea, to thank Nato's leaders (but kill not Kadafi!)

After reading Jake Tapper's report (h/t Instapundit) of the Obama Adminstration's position on its compliance (or non-) with the War Powers Resolution with respect to the kinetic non-war in Libya — as announced today in a late-Friday-afternoon news-dump — I should very much like to know:

Exactly where is this nation called "Nato"? Because I would like to visit its leaders to thank them for taking over the responsibility for leading this coalition. Do the Natonians permit Americans to visit?

I don't think the War Powers Resolution is constitutional. But as a legal argument, if Tapper's summary is correct and the quotes he includes are accurate and in context, then this attempted side-step by Obama is beyond pathetic, to the point of being insulting.

I'm looking for a link to the letter itself, and might have more to say after reading it in full.

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UPDATE (Fri May 20 @ 10:55pm): What Tapper describes sounds like a variation on an ancient legal doctrine: "De minimis non curat lex," meaning "the law does not concern itself with trifles." I don't know exactly what U.S. forces are still involved, but they are concededly significant enough to include ships and helos for "search and rescue operations," "aircraft that have assisted in the suppression and destruction of air defenses," and "unmanned aerial vehicles."

In other words, those assets all by themselves exceed the projectable military capabilities of almost every other nation on earth. De minimis, uh-huh. So I want to see the letter in full-text, to see if anyone from the Administration had the temerity to use that little bit of Latin to describe our non-war war.

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UPDATE (Sat May 21 @ 12:55am): Mm-kay, here's the letter. It mentions the War Powers Resolution not at all by name, and references it only indirectly (and that with plausible deniability) in the language about "our on-going consultations." That doesn't matter; the timing makes self-evident that this is intended to address those issues. Friday was the 60th day after Obama triggered the Resolution by "introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." Since Congress hasn't given its blessing, Friday therefore was the day under 50 U.S.C. § 1544(b) by which Obama had to "terminate any [such] use of United States Armed Forces."

But to call this a "legal argument" would be far too generous. To call it a "credible excuse" would be a fantasy. This letter is worse than "the dog ate my homework." My paraphrase:

We've sorta kinda un-introduced those armed forces, mostly, because, see, they aren't really as involved, y'know? I mean they're still armed and everything. But you know, they're not, umm, leading or anything like they were at first. Follow? And okay, so "armed" yes, but "forces"? They aren't trying to be very forceful. We've talked about that. We've cut way back on that. Way back. Really. Back. Not very forceful, even though armed, yes. I mean, they could be forceful if I told them to — you saw what I did with those SEALs, yeah? you see that? — but seriously, I've told them: Not very forceful. Mostly not.

Yeah, I thought you'd agree, and, umm, so never mind that the Resolution says by Friday the president "shall terminate any use of United States Armed Forces," because you see, these really aren't any-any forces to speak of, you know — kinda like Roman Polanski didn't really commit rape-rape? It's just some planes and some ships and some junk, really, and — What? Well, yeah, there are some helicopters too, but most of the time they just stay on the boat and the pilots are down having chow and standing by. They have good chow on those Navy boats, I see to that, but that does not mean we're at war in Libya. That's a false choice, between good chow and war. Let me be clear about that.

And you know, that word "shall," that word sometimes really means "maybe." Like if I say to you, I go, "Shall we go to the park?" And then, like, you go, "Naw, I dun wanna." Then that's totally okay and we don't have to go! So it's really like, okay, well, "maybe" we should have terminated by now. Maybe. May. Be. And you know they really are "terminated," kinda — well not "them" but the missions, I mean. Mostly anyway. Unless like a plane crashes or we need to blow up some SAM sites and stuff. I can't control that. You know I can't control that, 'cause I did not put those SAM sites there.

Mostly we just talk on the phone and the radio a lot, really, and we wave at the British and the French and we go, like, "Hey dudes from Natonia, thumb's up dudes!" Seriously! I swear! Then they go blow stuff up and we go, like, "Yay! WTG dogs!" And they go, like, "Yeah! We're from Natonia, and we baaaad."

Oh, but hey, while we're talking about this, um, would you, like, sign this permission slip anyway for me? 'Cause I mean, it's no biggy, but like, I would really just want it for, like, y'know ... back-up? If there were ever some kind of impeachment thingy? Mm'kay, thx, bye!

Yes, Obama is now urging Congress to go ahead and give him permission for this not-war that the War Powers Resolution — if there is one, which we're not quite admitting there might be, but just, if there were, y'know, and if it were constitutional, which we're not denying or admitting today since we're not admitting that one exists — otherwise made illegal effective at the end of Friday.

President Gutsy!

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UPDATE (Sat May 21 @ 1:55pm): I'm reprinting here (without block-quoting it) a comment I left on Patterico's blog on a post by his contributor Aaron Worthing, who's been following the whole War Powers issue diligently and thoughtfully (although I respectfully disagree with Aaron's ultimate conclusions in some important respects that aren't pertinent today):

The War Powers Resolution can be complied with even without ever saying its name. Obama’s letter from yesterday afternoon, for example, nowhere references 50 U.S.C. §§ 1541-1548, but it’s no coincidence that the letter was sent on the same day that section 1544(b)’s 60-day period expired. I believe that in this respect, that letter is fairly typical of what previous administrations have done while attempting to comply without admitting or implying any need to comply.

Obama’s March 21 letter to Congress did include a specific reference to the Resolution at its very end, but linked to an assertion of presidential authority:

For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.

“Consistent with” is a carefully chosen qualifier, intended to acknowledge the Resolution without implying or conceding its binding authority. I have no particular fault to find with that, and prefer its honesty to the kabuki show of pretending the Resolution isn’t on the books.

Yesterday’s letter, though, isn’t actually even in compliance with anything in the Resolution. Rather, it’s a pathetic argument that might excuse non-compliance, and it includes (finally) a plea for Congress to give retroactive blessing.

In general, I’m content for the constitutionality of the Resolution to remain a matter of dispute, of continuing to-and-fro, push and push-back, between congressional and administrative branches without involving the judiciary. There are very good reasons why this hasn’t been litigated, and indeed, the whole system of checks and balances depends (counter-intuitively but undeniably) on some of its vague presumptions that never get tested. (To paraphrase Stalin’s comment about the Pope, “How many divisions does the Supreme Court command?”)

Obama could have mounted a serious, sustained, but quiet effort through bipartisan proxies in Congress to get a resolution passed that would bless what’s been done so far well before the 60-day deadline expired. He’s only doing that just now. Friends and neighbors, that delay is legal malpractice on behalf of those advising and representing the Executive. It may not turn out to be consequential malpractice — Obama may still get his retroactive blessing, which would moot the controversy as a practical matter — but it’s stumbling into a constitutional showdown, one that presents a relatively bad set of facts (from the Executive’s point of view) from which to establish a binding, precedential resolution of the Resolution’s constitutionality. And it’s inexcusable because the Administration damn well knew in March that this wasn’t going to be done by May 20.

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UPDATE (Sat May 21 @ 7:15pm): I don't want to get into a protracted discussion on this post (or in its comments) about the constitutionality of the War Powers Resolution. However, the expiration of this deadline is essentially certain to cause someone, somewhere, to jump into federal court asking for an injunction.

I am 100% certain that when that happens, there will be very technical, very tedious, and very fundamental preliminary motions. There will be challenges to standing — the right to bring suit by a particular person or entity, and/or the capacity in which that's being done. There will be challenges as to ripeness — whether this is something that has to be decided now at all, much less on an emergency injunction basis. And most of all, there will be challenges to justiciability — whether this is even the kind of dispute that the federal courts are in business to be deciding, and in particular whether this is the sort of "political question" that the federal courts are supposed to refuse to get involved in.

So as you're imagining the whole range of potential scenarios that could unfold from this — to the continuing chagrin of Barack Obama, progressive superhero who's now committed a set of unforced, imbecilic, spectacularly ironic mistakes on Libya — consider this one, because it might well happen:

Congress: Hey SCOTUS, make him stop it! Make him follow the law we passed to tell him how to do his Commander-in-Chief gig! Order those ships to come home and those planes to stop flying right now!

POTUS: No, no, SCOTUS, that's my gig alone, and neither you nor Congress can tell me how to do it.

SCOTUS: We're just not going to talk about this subject. Go away.

[Courthouse door slams closed; POTUS and Congress trudge away, grumbling and snarling at one another. Exeunt all.]

I actually think that's the single most likely scenario, if it were pressed that far by the appropriate principals — who themselves may be precisely the ones who refuse to seek judicial involvement, because Congress has an interest in leaving this entirely unresolved, too.

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UPDATE (Sun May 22 @ 8:15pm): I'm flattered that this post has been linked by both Instapundit and Ace, among others (and I'm no less grateful for links from blogs that lack the traffic of those two). Ace is wrong in guessing that my concerns about the constitutionality of the Resolution are limited to "overbreadth" arguments, but again, I really don't want to hash out that question in this post. It's a subject that's been debated, without closure, for literally my entire adult life — and I'm 53. (In assuming that the Resolution gives the POTUS 60 days plus an additional 30 days, I believe, for reasons I've explained in comments on Patterico's blog here and here, that Ace has simply misread the Resolution.)

However, it's worth mentioning that the Obama Administration's emphasis on the involvement of NATO allies in some sort of leadership role, and on the U.N. Security Council's blessing, may be explained by, or at least related to, 50 U.S.C. § 1547(b), which reads:

Nothing in [the War Powers Resolution] shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to November 7, 1973, and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

If Obama plans to mount a defense for his non-compliance with the Resolution based on section 1547(b), though, that's a very stupid plan.

NATO certainly qualifies as a "high-level military command," and it was established prior to November 7, 1973, by a treaty ratified by the U.S. before then. But Section 1547(b) only means the POTUS doesn't need Congressional approval under the Resolution merely for "participat[ing] jointly" with NATO members in NATO's "headquarters operations." So boots on the ground in Brussels are okay, even if those Natonians get to arguing and tussling there at NATO headquarters; the War Powers Resolution didn't require the U.S. to pull out of NATO, in other words. There's no way, however, that dispatching a U.S. Navy F/A-18 to blow up a SAM site in Libya during a civil war there amounts to participation in NATO "headquarters operations."

Nor does section 1547(b) mean all U.N.-blessed action is okay. Rather, the reference to the U.N. is simply to make clear that the "participa[tion]" in "headquarters operations of high-level military commands" may include such high-level military commands as were established pursuant to the U.N. Charter prior to November 7, 1973, instead of pursuant to a prior treaty ratified by the U.S. (I'm thinking that was intended as a carve-out for some of the existing peace-keeping operations when the Resolution was passed, but I haven't checked the historical context.) It certainly can't include anything the U.N., much less just the U.N. Security Council, has done since 1973, however.

One would have to be a shockingly incompetent lawyer to claim that this section exempts what Obama's doing from War Powers Resolution coverage. I'm very much afraid, however, that this administration includes some shockingly incompetent lawyers.

Beldar quibbles with McCarthy to show that Holder's conflicts are even worse than McCarthy's revealed

Andrew C. McCarthy led the team of federal prosecutors who obtained convictions in 1995 against Sheik Omar Abdel Rahman (a/k/a "the Blind Sheik") and eleven others in connection with the 1993 World Trade Center bombing. Since he left the Justice Department in 2003, he's been among the most articulate critics of those who'd respond to international terrorism as if it were merely a civilian criminal offense. As someone who's actually done as well as can be done in such cases in our civilian criminal courts, I accord him credibility on this topic that's roughly the size, shape, and mass of the Rock of Gibraltar. I rarely find myself disagreeing with what he's written as a contributor to National Review and other conservative outlets.

I agree entirely, for example, with Mr. McCarthy's verbal thrashing of Attorney General Eric Holder in an NRO column from yesterday entitled Holder vs. Holder. In it, Mr. McCarthy explains why Eric Holder is a particularly leaky vessel into which to entrust the profound obligation of serving as chief counsel for the United States of America, and in particular why that's so when it comes to prosecuting/fighting the Global War on Terrorism (a term that Holder himself, like his master at the White House, has disavowed).

My one quibble is with a shortcut that Mr. McCarthy has taken in this opinion article — one which I think actually detracts from its overall persuasiveness.

Mr. McCarthy begins thusly:

Why does the Obama Justice Department seem to have trouble mounting a full-throated, compelling legal defense of Osama bin Laden’s killing? The problem for Eric Holder the attorney general could be Eric Holder the private attorney.

In 2004, Mr. Holder chose to file an amicus brief on behalf of Jose Padilla, the al-Qaeda terrorist sent to our country by bin Laden and Khalid Sheikh Mohammed to carry out a post-9/11 second wave of attacks. In the brief, Holder argued that a commander-in-chief lacks the constitutional authority to do what his boss, the current commander-in-chief, has just done: determine the parameters of the battlefield. By Holder’s lights — at least when the president is not named Obama — an al-Qaeda terrorist must be treated as a criminal defendant, not an enemy combatant, unless he is encountered on a traditional battlefield.

It would be useful if staffers at congressional oversight hearings passed around copies of Holder’s Padilla brief. It is a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief). This might explain why Holder sometimes has difficulty answering seemingly easy questions. That’s what happened this week, when the Senate Judiciary Committee quizzed the attorney general on the lawfulness of the U.S. military’s targeted killing of bin Laden.

I have a problem with that line of argument. It's wrong, and dangerous, to presume that a lawyer privately supports every element of every cause, or every aspect of every defendant, whom he champions in court. And I know Mr. McCarthy knows this principle, and I believe he likely believes in it. Mr. McCarthy went around this hurdle — ignored it — when it's fairly easily overcome in this specific case, however:

Holder didn't take on Padilla as a paying client because he (Holder), like every lawyer, needs to put bread on his family's table. Holder didn't in fact represent Padilla at all, and the Second Circuit brief to which Mr. McCarthy refers wasn't filed by Mr. Holder in his capacity as a lawyer, pro bono or otherwise, for anyone. Holder wasn't among counsel of record in the case.

Rather, Holder — with Janet Reno and two other former Clinton Administration lawyers — were themselves the "amici curiae," literally "friends of the court," who sought and received permission to address the Second Circuit on legal issues relating to Padilla's pending appeal. The lawyers who actually signed and filed the brief, acting in the role as counsel to the "amici curiae" including Holder, were from Arnold & Porter — one of the main (but mainly friendly) cross-town rivals of the Washington, D.C. firm at which Holder was then employed, Covington & Burling.

So attributing the views in this brief to Holder personally is entirely appropriate: The "mouthpieces" who may or may not have agreed with the "clients' position," but who figuratively and literally "signed off" on the brief, were the Arnold & Porter lawyers. Holder, although he had no stake in the case other than as a bystander and "friend of the court," was himself their client. Holder wasn't insisting on being heard by the Second Circuit through counsel because he was at the same risk of imprisonment or death that Padilla himself was in. Rather, Eric Holder, as a private lawyer whose only special credibility arose from his past government service, went out of his way to align himself with Padilla not as an advocate, but as a fellow principal interested in the same matters (albeit in the limited capacity of an amicus). 

It's thus entirely fair — and indeed, much more fair than with other legal briefs in which Holder was merely a paid, or even volunteer, advocate for some client — to attribute the views in this amicus brief to Holder personally. Once the A&P lawyers agreed to represent these "amici curiae," the A&P lawyers were obliged to diligently advocate for Holder's (and his felllow amici curiae's) interests. They spoke not for themselves, but for Eric Holder — and it is to him that their arguments and positions must be attributed. Otherwise, the clients upon whose behalf the brief was filed lacked any authority even as a "friend of the court" to be heard at all.

Holder can't, in other words, hide behind the usual — and oftentimes entirely legitimate — beard that "I was only representing my client's interests, and I don't necessarily agree personally with everything I said on the client's behalf." Rather, everything said in the amicus brief in the Padilla case was said specifically on behalf of Holder; he was the client of the lawyers who wrote and filed it.

Holder's own law degree and licensure and experience is also important, however, because it utterly deprives him of any possibility of saying now, "Oh, I really didn't grasp all the implications of the legal arguments my lawyers from Arnold & Porter were making on my behalf." Even moreso than the average client who lacks legal training and skills, it's not just a conclusive legal presumption that the Arnold & Porter lawyers were fairly and accurately representing Holder's views, it's a practical fact. It's simply inconceivable that this brief could have been filed without Holder (and Reno and the other two Clintonista lawyers) having a chance to review and participate substantively in the editing of its contents.

I suspect Mr. McCarthy would agree with all this, and perhaps he omitted it in the interests of concission. I lack his gift for that, but I also have a very strong attachment to the underlying general rule that for the Rule of Law to function, the lawyers participating in its administration must be free from the strictures that would come from attributing personally to them every principle or cause they've supported as an advocate.

Brilliantly stupid legal reasoning, or stupidly brilliant legal reasoning?

Harvard Law Professor Alan Dershowitz, in the Wall Street Journal:

When a Muslim or a Jew is the victim of a homicide in the United States, religious considerations do not trump civil requirements. Their bodies are generally sent to the medical examiner for thorough examination. Notwithstanding religious prohibitions, autopsies are performed and organs removed for testing. No special exception should have been made for bin Laden's body.

But bin Laden was not "the victim of a homicide in the United States." There's no need to discuss the right or wrong of making "exceptions" to a set of "civil requirements" that emphatically do not apply.

So I'm going with "brilliantly stupid" — lucidly and articulately argued in simple, clear language, but entirely based on a premise which is indisputably and unmistakably false. I won't quibble, however, with anyone pithier than me who concludes that Prof. Dershowitz' argument is just stupid.

This is the kind of nonsense that comes from civilian lawyers uncritically (i.e., stupidly) applying rules from the domestic U.S. criminal justice system to the transnational war against radical Islamic terrorists. This is also the kind of nonsense that comes from people who take the movie/mass media versions of themselves way too seriously.

The main point of Prof. Dershowitz' op-ed is to argue that the Obama Administration ought to release photographs of OBL's corpse. Typically for Prof. Dershowtiz, he makes some good points, most of which were already obvious, but he fails to even acknowledge that there are competing concerns that are also entitled to weight in that decision. I don't have a firm opinion on whether the corpse photos ought to be released because I have not seen them myself. (Indeed, it seems impossible to me that anyone could make a thoughtful decision about the photographs' likely effects unless one has actually seen them.) But whichever way one comes out on the merits, it's only fair and honest to concede that there are good policy arguments to support either outcome, yet problems with both. My point is that an advocate who refuses even to address contrary arguments cannot possibly do a good job advocating his position about their relative weightiness. So again, color me unimpressed, overall, with Prof. Dershowitz. Your mileage may vary.

Today's winner in the "I am not a lawyer but I watch lots of cop shows" category: William Saletan in Slate, who's breathlessly cross-examining third-hand, unsourced wire service stories as to whether the OBL raid would have been a case of police brutality if judged by the standards of domestic U.S. police officers conducting an arrest. Mr. Saletan is still missing the really key factual issue, however: Was bin Laden permitted a reasonable opportunity to inquire about his Miranda rights?

(That's me being sarcastic. But some people, possibly including Mr. Saletan, may think that's a serious question. They should enroll at Harvard Law School and take lots of classes from Alan Dershowitz.)

King & Spalding's craven ethical collapse in withdrawing from a politically controversial representation

During a period of brief temporary insanity near the end of the 20th Century, I considered returning to the BigLaw corporate litigation practice. I was privileged to be granted a job interview with a partner from the then-new Houston office of Atlanta-based King & Spalding.

The firm enjoys an excellent reputation as one of America's top law firms, and it would be on anyone's short list of prestigious big firms headquartered in the American south. My occasional brushes with its lawyers during my dozen years of BigLaw practice — typically on big cases in which it and my then-firm represented cooperative co-defendants — gave anecdotal confirmation that reputation was justified.

The firm did not offer me a job, which I quickly realized was fortunate for them and me both. I nevertheless enjoyed the interview, and I particularly remember one particularly frank theme of it: The firm's Houston office was expected to parallel the entire firm's practice areas and client list, specifically including its long-standing and sometimes controversial representation of corporate clients considered socially toxic (and sometimes literally toxic). This included, prominently, tobacco companies, asbestos companies, pharmaceutical companies, various other chemical and industrial companies, and so forth.

I was asked — forthrightly and appropriately — whether that would give me any moral or ethical problems. I said I'd represented lots of target defendants in the past, often in hostile venues. I said that I was secure in my own ethical compass and integrity, and thus not over-concerned that I might be subverted into any impropriety by any client or colleague. I said that I believed in my own ability to stick to the rules in an adversary system which permits even the wicked to hire the best advocates available. I explained my appreciation, from past experience, that a lawyer has parallel but distinct duties: He or she must act as a zealous advocate for clients in public. But he or she must also serve as a private counselor, which includes helping troubled companies comply with their legal obligations and resolve their disputes on fair terms.

These were truthful answers, and I believe the same things today. These things are fundamental premises for anyone who aspires to be any client's champion in our adversary system.

*******

I was reminded of that interview yesterday upon reading of the circumstances of Paul Clement's resignation as a partner in King & Spalding's Washington office. (Yes, besides litigation, that branch office exists in part to lobby for many of those same toxic companies.) My reaction to the story was surprise, then dismay and disappointment. Clement is a star who will prosper wherever he practices. And I'm sure there must be many K&S lawyers, including many partners, who'd have rather seen handled things differently in hindsight. But the firm's management speaks for the firm, and the downstream lawyers' ratification, reluctant or otherwise, is more or less implicit in their continuing to show up for work every day.

King & Spalding now owns this precedent. It has raised a white flag of surrender, rather than stick to its commitment to this particular controversial client. Therefore its commitment and resolve with respect to any and every controversial client in the future must be weighed against this betrayal.

I never thought I'd have occasion to use the word "gutless" to describe King & Spalding or any of its partners. But yeah, that's the one that fits. It's hardly an Atticus Finch moment for the old firm.

*******

And then I came upon this blunt and provocative assessment from Glenn Reynolds:

Just remember: King & Spalding is now responsible for the views of any client it chooses to represent, now that it’s clear they’re being vetted for political correctness.

Maybe K&S' client list has changed radically since my interview back then. Casual googling and the current firm website suggest not, however. If someone's more curious and diligent than me, there's always PACER. The firm has a genuine claim to a national practice in both trial and appellate courts, state and federal — so there would be lots of courthouses to check.

"Oh," you may say, "there are differences among these noxious clients. Some are much worse than others." And that is true. But the time to consider those differences — the time to decide whether conflicts or mere "taste" issues would interfere with diligent representation — is before agreeing to take on the particular case and client.

As a lawyer, the whole concept of being a fiduciary necessarily implies that you've weighed, and resolved, any moral, ethical, or other personal subjective issues before you accepted the representation. Thereafter, you reserve and suppress your personal judgments, and you scrupulously guard against their potential interference with the objectivity and diligence you owe each client.

Once a lawyer and his firm have agreed to be hired, and have indeed been hired, and have publicly announced as much, and have thoroughly embarked upon their representation of that client in that matter, both lawyer and firm are ethically and morally committed. Neither firm nor lawyer is free to disavow their commitments to controversial clients on grounds that the firm no longer likes being involved in the particular controvery which brought the client to them in the first place. That would be like the doctor who's supervising your chemotherapy suddenly deciding, mid-infusion, that "Chemicals are icky!" and jerking the needle that could save your life out of your arm.

How much damage will this do to King & Spalding in the long run? As trial lawyers here in Texas are wont to say: "That gun kicks as hard as it shoots, pardner." King & Spalding will survive, and may thrive, but I suspect it will come to regret pulling this particular trigger.

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Note to commenters: Please stay on or near the topic of K&S' reversal of its original commitment to represent the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. That doesn't require long arguments about the merits of that defense, the constitionality of DOMA, federalism, or the propriety of gay marriage in general; save that for other posts, please. This post is about legal ethics, and the fact that the issue arises out of this particular context isn't especially material because, yes, it could just as easily instead be about tobacco, guns, asbestos, lead paint, et cetera — and we're not going to debate any of those in connection with this post either.

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UPDATE (Tue Apr 26 @ 8:10 a.m.): I've blogged before about John Adams and his famous representation of the British soldiers who committed the "Boston Massacre." But for another example of a famous lawyer championing controversial causes or clients, ponder this historical factoid and its potential relevance:

The lead appellate lawyer who defended segregated schools before the Supreme Court in the consolidated appeals decided by Brown v. Board of Education — the lawyer who lost to Thurgood Marshall — was John W. Davis of New York City's Davis, Polk & Wardwell. William Henry Harbaugh's Lawyers Lawyer: The Life of John W. Davis is among the best portraits of a practicing trial and appellate lawyer that I've ever read. And every time I pass the old Rice Hotel in downtown Houston, I'm reminded that the Democratic Party nominated Davis as its presidential candidate during its convention there in 1924.

A legendary figure in his day, Davis argued before the U.S. Supreme Court 140 times. And either in Harbaugh's book or elsewhere, I recall reading that Marshall did not begrudge Davis his role, and indeed, that Marshall said it was appropriate that such an important case be championed by the best advocates available in order that the resulting decision have its maximum credibility.

Perhaps you believe that the DOMA is as repugnant as school segregation and Jim Crow. If so, then, you may think that Paul Clement today occupies a role comparable to Davis' in Brown. Were he alive to do so today, though, Thurgood Marshall would patiently explain to you that it is precisely their steadfast performance of their duties to even controversial clients that made Davis, and make Clement, a "lawyer's lawyer."

WaPo chronicles Obama's serial blundering over Gitmo

"The executive order promising to close Gitmo's detention facilities within a calendar year was never anything more than BHO-monogrammed bovine excrement so naïve and silly that it exploded violently on every contact with reality."

That's my 35-word précis of this 4300-word WaPo article entitled "Guantanamo Bay: Why Obama hasn’t fulfilled his promise to close the facility."

However, whoever crafted this intended spin-imparting summary paragraph near the top may not have actually read the rest of the article, or else comprehended its cumulative import not at all:

For more than two years, the White House’s plans had been undermined by political miscalculations, confusion and timidity in the face of mounting congressional opposition, according to some inside the administration as well as on Capitol Hill. Indeed, the failed effort to close Guantanamo was reflective of the aspects of Obama’s leadership style that continue to distress his liberal base — a willingness to allow room for compromise and a passivity that at times permits opponents to set the agenda.

Instead of this mushy half-hearted defense of their hero, how about some plain English that's much more consistent the rest of the facts reported? Why pretend anything needed "undermining" when it never stood on its own to begin with? Why use the words like "miscalculations, confusion and timidity" as a substitute for "consistent bold stupidity"?

I'd re-write that summary paragraph thusly:

"Despite Obama's unconditional and unequivocal promises as a candidate, it became increasingly obvious, more blindingly obvious with every day of his new presidency, that closing Gitmo anytime soon would be a Very Bad Idea for a Whole Buncha Reasons. It became obvious to most serious grown-ups in America — and even to the large majorities of senators and congressmen from Obama's own party who want to be re-elected, regardless of their seriousness and maturity — that Obama's executive order couldn't actually be implemented without monumental, unacceptable risks and a momentous public backlash that would rival, and perhaps exceed, the Tea Party backlash against Obama's fiscal profligacy. Indeed, even the administration official who was designated to fall on his sword — ex-White House Counsel Gregory B. Craig, about whose resignation Beldar wrote at his usual tedious length here back in 2009 — appears to have painfully hoisted himself off that blade and climbed back down to reality."

Overall, this is probably the most damning reporting on Obama's fundamental incompetence that the WaPo has yet published. Nothing in it makes Obama look even marginally competent or principled. Yet despite their claim to have based this report on "interviews with more than 30 current and former administration officials, as well as members of Congress and their staff, members of the George W. Bush administration, and activists," WaPo staffers Peter Finn and Anne E. Kornblut don't produce anything amounting to a scoop. The only thing about their report which surpised me is that apparently everyone in Washington who doesn't list 1600 Pennsylvania as his or her current primary work address now seems to agree that Obama spectacularly mismanaged this entire issue.

I'll continue to stick with my description of the Obama Administration back in that post from April 2009:

"Amateurs. Incompetents. Ideologues. Full-time politicians turned half-wit government officials. Brilliant leftists who, confronted with the real world, are exposed as clueless idiots and children.

If anything, that assessment may have turned out to have beeen overly generous.

Beldar on "hate crimes"

Prof. Ann Althouse has a post up today entitled Webcam spying on college roommate charged as a hate crime. I left the following comment:

I can't think of anything as detrimental to the cause of civil liberties as the Left's passion for "hate crimes."

Those who promote this notion ought to consider the lines from [Robert Bolt's play, and the subsequent movie,] "A Man for All Seasons":

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

In response, another commenter said, quite reasonably: "I'm really unable to decide which is the devil in all this. Is it the 'hater' or the laws themselves? Especially since many of our laws are starting to be written by haters of one kind to control haters of another."

My reply (slightly edited here for clarity, and not block-quoted because it's fairly long):

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@ bagoh20: Your comment confirms that my allusion to Thomas More was unclear.

I conceive of "hate-crime" laws, in general, as an attempt to misuse the existing Rule of Law by loosening its standards, by inserting into the law a wolf in sheeps' clothing.

The secular law of More's day guaranteed individual liberty both against abuse by ecclesiastical law and against mob justice. It was deliberately structured, measured, to be resistant to momentary passions from any source, and it remains so today. (Only "resistant" because it is administered by fallible humans; the law can't be made impervious to passions.)

Consider, for instance, the murder of James Byrd, Jr., a racially motivated crime that occurred, and was prosecuted, in Texas (where I live). George W. Bush's political opponents regularly tried to beat him about the head and shoulders under the theory that because he'd been Texas' governor, it was his fault that Texas had no hate-crimes enhancement to apply to this prosecution. His response was always that the existing Texas laws had functioned absolutely appropriately in the case: All three perpetrators were convicted of capital murder, and the two of those whom the evidence proved most responsible were sentenced to death. Evidence of their racism and associations with white supremist organizations was introduced — not to prove that they are hateful people who are therefore deserving of greater punishment, but rather to establish their motive for killing Byrd. The death-row convicts' appeals are still playing out, but given the evidence and the seriousness Texas displays in carrying out death sentences, those two are likely to be executed. So how much more could Texas have punished them? What's worse than a death sentence?

That people could seriously argue that these sentences needed enhancement illustrates the core truth about hate-crime statutes: They're written to enable the process by which popular passion can affect the criminal justice system. And the cruel irony is that the passion exhibited by those who wanted to further punish the murderers of James Byrd, Jr. is functionally indistinguishable from the passion of racist mobs in past decades who've committed lynchings.

Our "regular" laws — without hate-crime enhancers — are the trees. Start cutting them down — by passing special laws consisting of short-cuts to empower sentiment and passion in sentencing, at the expense of evidence and due process — and you will soon find the kingdom laid too flat for anyone to stand upright against the winds of evil (or even mere chaos).

To change metaphors: The Rule of Law, with the legal process it prescribes as due to each defendant, is the foundation of our civilization and, especially, this America. Hate-crime laws undermine the foundations of the Rule of Law for everyone. History teaches that such foundations are rare and hard to build, and that once sufficiently undermined, they collapse and are hard to re-build.

I hope that makes my allusion more clear.

Lithwick's latest, on KSM, is not just silly but pernicious

Dahlia Lithwick is the least reliable legal pundit I've ever run across. Consider this:

Today, by ordering a military trial at Guantanamo for 9/11 plotter Khalid Sheikh Mohammed and his co-defendants, Attorney General Eric Holder finally put the Obama administration's stamp on the proposition that some criminals are "too dangerous to have fair trials."

Stop and ponder this bold assertion.

Then consider that the military commission statutes which will control KSM's trial were passed twice — the second time to add additional procedures favorable to defendants in response to an intervening SCOTUS ruling — by overwhelming majorities in both chambers of two different Congresses (in 2006 and 2009) under two different presidents.

Among those voting for the Military Commissions Act of 2009, under which KSM will be tried, were Democratic Senators Daniel Akaka, Max Baucus, Evan Baye, Barbara Boxer, Sherrod Brown, Roland Burris, Maria Cantwell, Christopher Dodd, Richard Durbin, Diane Feinstein, Al Franken ... well, you get the picture (and I haven't gotten past the letter F in the Senate even after skipping several). In the House, 237 Democrats, including Nancy Pelosi, voted for it. The additional protections it added were so generous to defendants, in fact, that 132 House Republicans and 28 Senate Republicans voted "nay" — even though it was part of a defense appropriations bill. And of course it was signed into law by President Barack Obama.

For Lithwick's assertion to be true, all those Congress-critters had to be very devoted to unfair trials. They can't pass a damn budget, but if we believe Dahlia, they can band together hand-in-hand, in overwhelming numbers — twice — to create and revise a fundamentally unfair judicial system.

Similar devotion to unfair trials, it would seem, must be attributed to Barack Obama and Eric Holder. Of the former, she bitterly claims to have learned that "there is no principle he can't be bullied into abandoning." So perhaps Obama isn't devoted to unfair trials, but is just cravenly enslaved to those who are. Does that make Obama better, or worse, than those to whom he's "capitulated"?

Of course, the more fundamental stupidity of Dahlia's assertion is its assumption — an emphatically, unarguably false one — that KSM and his co-defendants are mere "criminals." They aren't, of course, and it's not just silly but pernicious to pretend otherwise.

*******

"Fairness," with respect to trials, is not a binary status, either on or off. It's a continuum.

Compared to the rest of the world and all of history, U.S. civilian criminal courts provide more procedural and substantive protections for defendants than any other court system — and by a wide margin. If we presume that nothing less can be "fair," then all of the civilian judicial systems in the rest of the world are "unfair," and have been for all of history.

And in fact, as Lithwick damn well knows — she's not stupid, she's calculating — the military commission trials in fact afford the defendants with legal safeguards substantially more favorable to them than if they were being tried in the regular civilian criminal courts of any other country in the world (save only, perhaps, and then in only certain respects, the U.K. and some of its former colonies, including Lithwick's native Canada). Yet she writes:

Every argument advanced to scuttle the Manhattan trial for KSM was false or feeble: Open trials are too dangerous; major trials are too expensive; too many secrets will be spilled; public trials will radicalize the enemy; the public doesn't want it.

Easy to say, impossible to support, and dead wrong on every count. Any one of these reasons could properly have justified Congress in turning the "fairness dial" back down from 11 — where it's set in the U.S. civilian courts because we so value the civil liberties of our own people that we'd rather see many criminals go free to prevent one wrongful conviction — to a mere 10.

In particular, the "secrets that would be spilled" aren't whisperings between teenaged girls at a slumber party. They include the identity of sources who would be caught and beheaded. They include methods of fighting terrorism that have prevented another 9/11. Lithwick dismisses them in six words: so blithe, yet so very dangerous.

For comparison, KSM will in almost all respects be getting the same protections and rights we give to our very own servicemen and -women in military courts martial. Ponder the irony of that. I shall await Lithwick's next article, which I presume will excoriate the Uniform Code of Military Justice — which Congress adapted to create the military commissions system — and I expect to see her picketing outside Fort Leavenworth later this week.

*******

KSM famously declared when he was captured: "I'll talk to you guys after I get to New York and see my lawyer." Another irony, of course, is that he will in fact have fabulous lawyers, paid by the very government of the very country he still wishes to destroy, and yet ethically bound to do their best to get him acquitted or, failing that, to mitigate his punishment.

The truth is that nothing would ever satisfy Dahlia Lithwick and her ilk. Nevertheless, KSM will get his trial, whether she's satisfied, and whether she lies about it, or not.

But it won't be in New York.

Beldar compares H.R. 1255 to an egg that will never hatch

Whether you've read my two previous posts on H.R. 1255 or not, or my friend Patterico's original post about it, I whole-heartedly commend to you Patterico's post today entitled Whoops: That Horribly Unconstitutional Bill Passed by House Republicans Is Probably Constitutional After All. (See also Prof. Jonathan Adler's updated post at the Volokh Conspriracy.)

Patterico's praise for our mutual long-time commenter Milhouse is amply warranted. Speaker Boehner should track down and hire Milhouse immediately to be the House GOP's lead spokesperson on this issue. He's done a lot of superb critical thinking and argument here and at Patterico's, and a lot of legal and historical research entirely on his own, and I'm grateful to have been part of the collaborative process as he's sharpened his arguments. His work is an example of the blogosphere at its very, very best — not as consequential as Ra^thergate in 2004, but in the same spirit and with similar ingenuity and panache.

I agree entirely with Patterico, moreover, that nothing said by either side on the House floor can affect the constitutionality of H.R. 1255 either way. It can give clues what may have been intended, and that can be an interesting and legitimate question. What was said on the House floor, and what may be inferred from that, however, doesn't affect constitutionality; instead, constitutionality depends on the literal language of a statute once it's been duly enacted.

I still believe the key sentence we've been arguing about was horribly — and needlessly — misleading and unclear. Bad drafting by the House GOP gave the Democrats a huge club to beat the GOP over the head with, and for absolutely no good reason. That's politically stupid, and inexcusably so: When you regain control of the House, you don't want to create circumstances that can very easily, and quite persuasively, be spun to look like you're incompetent. Better draftsmanship could easily have done what the House GOP intended, and without subjecting them to ridicule or misunderstanding.

I would have voted against H.R. 1255 as it was written were I a member of the House. I could have been persuaded to vote for it with an amendment substituting one word for three, to make H.R. 1255 to say H.R. 1's provisions "are hereby passed" instead of "are hereby enacted into law."

*******

As for whether I think H.R. 1255 is or isn't "constitutional": Normally when we ask that, we're talking about something that's been enacted into law through the full process, including passage by both chambers of Congress and a presidential signature (or rarely, re-passage after a presidential veto). Sometimes we speculate as to whether a mere bill would be constitutional when and if so passed. So the context here is a bit different, and doesn't quite fit either of those common scenarios.

The budget provisions of H.R. 1 that were incorporated by reference into H.R. 1255 would certainly be constitutional if either H.R. 1 or H.R. 1255 were duly passed by the Senate and signed by the POTUS (or, if he vetoed either, if re-passed by both chambers with the required two-thirds majority).

The additional features of H.R. 1255 relating to Congressional and POTUS pay are more problematic, and not just because of the Twenty-Seventh Amendment. I haven't looked at that question closely, nor has that been what we've been debating yesterday or today.

So given that H.R. 1255 was passed by the House despite the Dems' mockery and without the votes of some GOP members, what happens if we get to 12:01 a.m. on April 6 without the U.S. Senate having "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011"?

That depends on what else happens, or doesn't, in the meantime.

There's a high probability — I'd guess exceeding 99% — that the Senate won't have considered H.R. 1255 by then. There's no way Reid would expedite it, nor that the GOP senators could force that.

In the extremely unlikely event that the Senate passed H.R. 1255 in the 25 hours or so that remain before April 6, though, it would go to the POTUS for consideration. Again, there's a 99%+ chance that it would be promptly — delightedly — vetoed. That would be the end of it unless both chambers re-passed it by a two-thirds majority, which I think is emphatically less likely than, say, the sun going super-nova in the meantime.

If the Senate doesn't pass H.R. 1255 before April 6, however, then knowing what we've now figured out about what the House GOP sponsors and leadership intended, we know there is literally no one on the planet who will be contending that H.R. 1255 has automatically become law. That's despite its confused language suggesting someone thought it might. This is the most likely outcome by far.

*******

But even if it has no constituency who would argue that it's become a validly enacted statute and part of America's binding law, is H.R. 1255 constitutional in the abstract?

I genuinely don't think that question can be answered by itself. It's like asking if an egg is a chicken or an aligator. Even if the egg insists that it's a chicken just because it (the egg) says so, or even if the egg insists that it needs no further incubation, the egg's insistence doesn't complete the process of hatching out, nor establish whether it would have become a chicken or an aligator.

And in the real world, this egg ain't ever gonna hatch.

I can answer the question in absolute confidence were it re-phrased: If the Senate has not "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011" by April 6, and if the Senate takes no action on H.R. 1255 in the meantime either, will H.R. 1255 automatically become a duly enacted statute that can then be subjected to analysis for constitutionality?

The answer to that question is "No." Period. And no member of the House GOP, including H.R. 1255's sponsors or the leadership, would disagree.

What was never more, at best, than a politcal gesture has mostly backfired. It's not a big deal in the great scheme of things, and is likely to be forgotten by the small segment of the public who's paid attention to it so far. (Not by me or Patterico or Milhouse, though! Or probably by you, if you're still reading this, gentle reader.) But I still hope Speaker Boehner and the House leadership will take to heart this lesson, and that they'll tread on their own toes less forcefully in the future.

Beldar finds surprises in the Congressional Record about H.R. 1255, but no clear rebuttal of Dems' (and others') constitutional critique of it

The Congressional Record of April 1st's floor proceedings in the U.S. House of Representatives includes a very long floor discussion of H.R. 1255, about which I posted earlier today. Much of it is typical partisan sniping along the lines of "You mean old Republicans haven't passed any bills creating jobs and now you won't compromise" or "You spendthrift Dems created this problem because you couldn't pass any budget at all for FY2011, so we're having to force the Senate to act."

But some portion of the Democratic members' discussion must be read as fairly — and fairly persuasively — raising the question of H.R. 1255's failure to gain, and perhaps even to seek, Senate approval or a presidential signature. If the GOP had a persuasive answer to that complaint, I sure couldn't find it in the floor debate. There are hints of an argument, hints maybe of precedent. There's a repeated and clear profession of intention on the part of many House Republicans that H.R. 1255 not be self-enacting, and that it instead would require Senate approval, and then either a presidential signature or a veto override, to become law. So maybe there's a procedural or parliamentary argument I just haven't read, heard, thought of, or (possibly) understood.

But then, too, there was also a short and very unequivocal statement by one House Republican — Rep. Louie Gohmert (R-TX) — that he believes H.R. 1255 to be unconstitutional.

The only excuse I can make for the length of what follows is that what I've left out would make it five or six times longer if included. I've tried to be fair and judicious in my selection of what to include, but I can't guarantee against an inadvertant shortfall in that regard. If I misunderstood or didn't know what something was, it's entirely possible that I wouldn't have recognized it as relevant and might not have included it.

I'll quote at length the best of the Dems' objections and complaints that are relevant to the "skipping the Senate and the POTUS" argument — from Rep. Louise Slaughter (D-NY) — below, but I want to proceed in roughly chronological order corresponding to how the various arguments were made on the floor.  So first, here's the best I can find by way of a GOP response before the first vote:

Mr. [Rob] WOODALL [R-GA, H.R. 1255's principal sponsor] ... This bill does two things, the underlying legislation does two things: It both gives the Senate an opportunity to come out from under its paralyzing inaction and pass H.R. 1 [i.e., the House GOP's "Full-Year Continuing Appropriations Act, 2011," which it passed in February]; and, it says that if the Senate does not, if the Senate fails to act — we are not asking the Senate to do exactly what we want them to do. We are asking them to act. If they fail to act, that Congress will not get paid. Congress will not get paid. My colleagues on the left won't get paid, my colleagues on the right won't get paid, and my colleagues in the Senate won't get paid....

Still fairly early in the morning, the first vote was held — "The vote was taken by electronic device, and there were — yeas 219, nays 172, not voting 41." But a "motion to reconsider was laid on the table." Rep. Woodall sought and received unanimous consent that all members would have five days to revise and extend their remarks. And then, after another statement about how the budgetary delay and uncertainty is hurting the economy and costing jobs, came this:

Mr. WOMACK [R-AR]: ... Madam Speaker, this has to stop. The political gamesmanship going on in the upper Chamber might make for good headlines in the capital press, but it is hurting our Nation. That's why I've offered this bill to self-impose a deadline on Congress, and I'm asking my colleagues to join me in supporting H.R. 1255 to start the clock on the Senate to pass something we can agree to in funding government for the remainder of this year by April 6, or assuming a government shutdown, expect to have our pay withheld until we can reach agreement.

Here's a YouTube clip which includes that:

You can see that the House was almost empty, as is typical. I think this was for the TV cameras back home. Throughout the day, the Congressional Record references the voting being done electronically, and I'm mildly ashamed not to be up-to-date on whether that means members had to return to the floor to vote, or whether they could do it remotely (e.g., from their offices).

Next, one of the rather more articulate attacks, from which I'm going to quote at length because it also effectively summarizes all of the arguments made by other Dems on the subject we're exploring:

Ms. [Louise] SLAUGHTER [D-NY]: ... Madam Speaker, over 200 years, the House of Representatives has seen almost everything. From the days as a young nation, to modern day America, the exchange of ideas and the debate of legislation is a rich and proud tradition that moves our country forward. Unfortunately, today's legislation abandons this proud history and marks a new low in the United States House of Representatives. As you know, the new majority started off the session with reading every section and every piece of the Constitution of the United States to show our reverence for it, but this morning that Constitution has been kicked under the couch out of sight, lest its presence in the room restrict what is attempting to be done here today. Indeed, this legislation proposes that we throw away 200 years of legislative history and upend the fundamental process of how a bill becomes law.

Despite the urgent and dire issues facing our constituents, here we are, the U.S. House of Representatives, considering legislation that has no chance of becoming law. Today's legislation would "deem" a bill that the Senate has already voted down as passed by that very Senate. It would take a remarkable mind to even come up with such an idea. This notion, while clever, will never pass through the U.S. Senate. And let me remind you that what we're doing this morning, saying that we're going to bypass the Senate, would not do anything at all unless the Senate passed it of themselves saying, forget about us. It's simply not going to happen.

I'm intrigued by the "while clever" comment. It makes me think there's some at least arguable procedural cleverness to what the GOP was doing. I just don't know what, yet, that might have been. But Rep. Slaughter was just getting going, and continued with this:

The Republican majority claims this bill is a solution to a government shutdown. I hope that discussions regarding the solution to a government shutdown are taking place in offices between Senate and House Members and representatives of the administration as we speak. They are the people who can avoid that. The majority claims this bill is a solution, as I said. If this is their only solution, America is in big trouble. The solution to a government shutdown is to meet the Democratic Party at the negotiating table, not to propose scrapping the entire legislative process simply because the majority party refuses to tell the right wing of their party "no."

I am sad to say that today's legislation is more befitting an entry to Grimm's Fairy Tales than to this august body. I think it demeans the House to pretend to do the impossible, to pretend to do what we can't. Does the majority believe that majority confers supernatural powers upon them to bypass the United States Senate?

In the House of Representatives, there are written rules for how the legislative process proceeds, rules that were crafted by Thomas Jefferson, rules that have been tried and true since the founding of this legislative body. These rules have helped lead our country through debates much more fractured than this. From civil war to civil rights, the rules of the House have seen us through struggle and strife and kept our country strong. Today's bill would throw away these rules and very much upset Thomas Jefferson.

Every one of us knows as schoolchildren that there is no way for a bill to become law without both chambers acting on it, a conference committee to meet if necessary, and the signature of the President of the United States. I wish that I were not standing here having to explain to my colleagues how a bill becomes law. I said yesterday, and I must say it again, that I hope we have warped no children's minds. Anyone who may be watching the perversion of the process today and any teachers who are guiding children through this process, take courage, because you can see the video that will explain once again, "I am a bill." Never before has anyone seriously considered the idea that one House can pass a bill and decide it will be the law of the land. Hopefully no party will ever try such a far-fetched tactic again.

Rep. Slaughter — who chaired the House Rules committee in the last Congress — next remains polite, but also gets sorta-kinda personal about how ObamaCare got passed:

Just last year, the procedure to "deem and pass" legislation through the House was derided by Republicans as the "Slaughter Solution," a procedure we ultimately chose not to use. At the time, Speaker Boehner called the deem and pass process "an affront to every American." Now he brings his own "dream and pass" legislation to the floor.

There was considerably more back and forth from various members, apparently including at least some reading aloud of the Constitution, but then Rep. Woodall weighed back in on the topic that this post is about (boldface mine):

Mr. WOODALL: ... There is no deeming in this bill. And I give my colleagues on the other side of the aisle the benefit of the doubt that they know that and that is just the spin for today.

There is no deeming in this bill. This bill says one thing and one thing only about H.R. 1, and that is, that if the Senate cannot act, we are going to give the Senate some cover. If the Senate doesn't want to commit to H.R. 1 for the remainder of the year, we give them the opportunity to incorporate the language of H.R. 1 into this bill, send it to the President's desk for his signature, make it the law of the land, while we continue to work to sort out our budget differences.

Now, that is critically important; one thing and one thing only this bill does: gives the Senate the opportunity to say, you know, for whatever reasons — and the reasons are still a mystery to me — we can't pass legislation in the Senate. We can defeat things all day long, but we can't pass anything. I'm not sure why that is. This bill says: but none of us want a shutdown.

Now, I have got to be honest, Madam Speaker. I am beginning to wonder if "none of us want a shutdown" is actually a true statement, because there are some folks who seem to be driving us right down that road.

This is a bill that just gives us another option, another arrow in our quiver to say, if you cannot act, Senate, if you are paralyzed by inaction, pass this bill, and we will continue those negotiations while H.R. 1 is the law of the land.

I would like to understand this. I don't; it seems to contradict itself, and potentially also to contradict what Rep. Woodall said specifically about "deeming" at the end of the day (see below). But then there's this (boldface mine):

Mr. WOODALL: Madam Speaker, I yield myself 15 seconds to say what I fear will fall on deaf ears, and that is that H.R. 1255 will not become the law of the land until the Senate passes it and the President signs it. The Senate passes it and the President signs it. That is the only thing we're talking about doing here today.

Alrightee! "Ding-ding-ding," my friend Milhouse will surely say, "This validates my theory that even the House GOP expects H.R. 1255 to be only a House-passed bill — and not an enacted law — unless and until it goes through the regular process!" What it doesn't do, unfortunately, is explain how that intent was embodied in the language of H.R. 1255.

Thereupon Rep. Sheila Jackson Lee (D-TX) accused Republicans of "killing off seniors and those in classrooms" with the spending cuts they're demanding. Seriously, she said that on the floor of the U.S. House of Representatives — and it's just so very Sheila! that nobody really bothered to notice. I'm surprised she didn't take the opportunity to allege that George W. Bush steals Girl Scout cookies.

It appears that after a bit more back and forth, there were two more votes on motions to reconsider, with the GOP holding its majority each time.

In the afternoon, Majority Leader Eric Cantor spoke about the need for action on a budget bill, but if he directly defended or explained the constitutionality of H.R. 1255 as against the Democrats' arguments that it purports to skip Senate or presidential approval, I couldn't find that passage. But of course, many others spoke too when the time allotments began to get really tight, typically only two minutes (boldface mine):

Mr. [Tim] GRIFFIN [R] of Arkansas: ... I would like to say real quickly that what we have seen here in the last few minutes is a colossal waste of time. You had a bunch of folks saying, Madam Speaker, that this is unconstitutional. I just want to clarify so we can move past that and my colleagues can focus their arguments where it matters.

We intend for this bill, like all other bills, to pass the House, to pass the Senate, and be signed by the President. I too am a JAG officer from the Army, and I think that the JAG officer, Madam Speaker, from the Air Force would understand that this is a constitutional bill, like the other bills that we introduce here.

Again, a strong statement of intent that H.R. 1255 not be read to be self-enacting without passage in the Senate, but no real explanation of how that's so.

But then, after a typically nasty but otherwise unoriginal set of remarks by Minority Leader Pelosi, we eventually come to a GOP up-and-comer in the House who has a surprise (again, boldface mine):

Mr. [Louie] GOHMERT [R-TX]: We're here because the Democratic majority last year did not do their job, did not give us a budget, did not due proper appropriations, and now the Senate has had the same problem. So I applaud anybody's efforts in trying to move the ball down the road so that we can appropriate. I just wish the Senate would do their job now and take care of it. But for a bill to say provisions that pass the House are hereby enacted into law violates my conscience and the Constitution. I cannot vote for it.

So if there's a GOP rationale, Rep. Gohmert didn't get the memo, or else found it unpersuasive. Rep. Gohmert was a state-court trial and appellate judge before he upset long-term Dem Congressman Max Sandlin in 2004, and he's been reelected three times, most recently (in 2010) as a Tea Party favorite. He's one of my favorites from what I think is a pretty strong Texas GOP delegation in the U.S. House of Representatives. But he certainly didn't equivocate over this vote, nor clam up about his reasons for it. And you can bet that a series of Democratic Reps then proceeded to throw Rep. Gohmert's statement back in the GOP members' faces with gusto and glee (as I'm sure he knew they would).

But wait! There's more!

Mr. [David] SCHWEIKERT [R-AZ]: ... It has been fascinating. I accept that I'm a freshman, and I know it's April Fool's Day, but it's been funny hearing the discussion about how this isn't constitutional.

Now, let me see. I'll walk through this.

It's a piece of legislation with a trigger mechanism in it. Okay. I know the other side does not like that trigger, but it still would require the Senate to pass it and the President to sign it....

And then Rep. Woodall makes the same argument (I think) that Milhouse has been making from the text of H.R. 1255:

Mr. WOODALL: ... [S]o I'll just read one more time:

Having passed the House, having passed the Senate, and be signed by the President.

That's the regular order.

Next follows a cameo by a book sold in the Congressional Gift Shop, "House Mouse, Senate Mouse." Man, I thought bloggers were snarky until I read this debate.

And finally, a lengthier summing up by Rep. Woodall, from which I'll omit the further "Schoolhouse Rock: I'm a Bill" references:

I just want to read from the bill. It saddens me. I'm so thrilled that so many Americans watch what we do here on the House floor to hold us accountable, and I'm so saddened by all the misinformation that's circulated. I read here directly from the bill:

If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the Departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House, are hereby enacted into law."

This bill that we send to the Senate, for the Senate to pass, and the President to sign, those provisions are hereby enacted into law. Now, I just want to study that a little bit closer. If the House has not received a message from the Senate stating that the Senate has passed a measure providing for the appropriations of the United States Government.

Folks may be wondering, Madam Speaker, why is it that we're doing that now? Wasn't that supposed to be done last September? Yes, it was....

He moved on to other topics, but was interrupted (boldface mine):

Mr. [Alcee] HASTINGS [D] of Florida: I just have a question. Do you really believe that what you're doing is constitutional?

Mr. WOODALL. Absolutely. I appreciate your asking. I appreciate your asking because having had my motives impugned throughout the day, and I know with the collegial relationship that you and I have in the Rules Committee, you know for a fact I wouldn't be here otherwise. I wouldn't be here otherwise.

Now, I'm no scholar of House activities. I know we have passed bills in this House that have incorporated things by reference before, and I'm sure we will do it again, not outside the process. To suggest — and you appreciate this, I say to my friend from Florida — to receive constitutional instruction from the team that brought us ObamaCare is troubling at the most basic levels.

Mr. HASTINGS of Florida. Will the gentleman yield again for yet another question?

Mr. WOODALL. I would be happy to yield to the gentleman.

Mr. HASTINGS of Florida. Do you have any precedent for the constitutionality of this particular measure? And I urge you based on what you just said, there have been measures that were deemed, but that was when they were agreed upon, but there is no authority anywhere for us to pass a law requiring of the United States Senate to undertake to do something, and I appreciate my colleague yielding.

Mr. WOODALL. Reclaiming my time, I will say that this is a unique procedure and these are unique times.

Mr. HASTINGS of Florida. Unique and unconstitutional.

Mr. WOODALL. But I will just say to you that in 1999, a Republican Congress, a Democratic President, enacted the foreign relations authorization bill, by reference, in an appropriations bill. That's what we're doing today.

There's the hint of a precedent, but I don't know its details, nor whether it's genuinely apt and on point. Someone's obviously explained it to Rep. Woodall, but it's just as obvious that he couldn't repeat any of the details of that explanation.

Rep. Woodall earlier insisted that H.R. 1255 does no "deeming," and that's confusing, because the whole point of "incorporation by reference" is that you "deem" something to be written into one document that actually is only written out in full in some other document. Particularly from Rep. Slaughter's defensiveness, I'm guessing that by insisting that there's "no deeming," Rep. Woodall meant to distinguish this situation from the way ObamaCare ultimately was passed.

I think this is the YouTube clip of Rep. Woodall's closing:

And after another half hour or more of entirely repetitive argument by the Dems that wasn't nearly as polite, eloquent, or persuasive as Rep. Slaughter's had been, there were more votes, and votes about votes, all resulting in H.R. 1255 being re-passed and re-re-passed by the House.

Perhaps my friend Milhouse will find nuggets I've missed in what I've quoted, or in the full text I've linked but not quoted, to support his take on this. I hope so; as I wrote at Patterico's, "I’m not much of a parliamentarian, so I’m going to hold out hope for an explanation that relies on some very technical provisions of the House Rules or some prior full-fledged statute which would put a whole ‘nuther complexion on this." There are hints of prior precedent that the GOP may be relying on, and having read only a little bit between the lines now, I'm quite sure that someone on the GOP side did indeed study this issue before the bill was filed, and there is some kind of procedural argument why it's valid. But I haven't read that memo.

Rep. Woodall did a nice job for a rookie of arguing the policies and political intentions behind the bill (and an excellent job of keeping his temper and remaining courteous even when mocked), but he did a damn poor job of trying to knock down the Dems' arguments. If there is a way to knock them down, Speaker Boehner needs to designate someone else to do that, and soon. (I nominate Fred Thompson, who of course is no longer in Congress, but has a better screen presence, and better communication skills, than anyone who still is.)

About that apparently self-enacting GOP House bill that would cut off Obama's salary while skipping both his signature and Senate passage

If you're a constitutional or parliamentary wonk, or if you're normal but you really need something to induce a severe coma, you'll positively relish the back and forth between me, my blogospheric friend Patterico, and our mutual long-time commenter and blogospheric friend Milhouse in comments to Patterico's post today entitled 221 House Republicans Thumb Their Nose at the Constitution.

The original post is very good — drawing on work from some other superb bloggers, but adding legal detail of the sort that Patterico consistantly burrows down into and explains with such excellent clarity, passion, and wit.

But the comments — at least up to #58, when I had to pry myself away lest insanity creep in — show what I think is a thoughtful debate and evolution of arguments, with absolute civility and good faith. If but only if you like rustling around in some fairly tall weeds. Or if you were, perhaps, one of the three people in my freshlaw property course who really understood conditional springing executory interests and their relationship to the Rule Against Perpetuities.

In short, along with some other very unconventional provisions (like the potential suspension of Obama's salary), H.R. 1255 contains language specifying that if the Senate hasn't "passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011" by April 6, then "the provisions of H.R. 1 [the House GOP's "Full-Year Continuing Appropriations Act, 2011"], as passed by the House on February 19, 2011, are hereby enacted into law." That looks a lot like H.R. 1255 is purporting to enact a bill into law while skipping both the Senate and the President. The House and Senate each pass bills all the time which begin with the traditional magic words: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled ...." But neither generally purports to accomplish the enactment of such bills into law without the other chamber also passing it before presentation to the POTUS.

If there's an explanation for that language in H.R. 1255 which squares with Article I, Section 7 of the Constitution, that explanation is not to be found in the press releases I've seen from some of the GOP members who voted in favor of it (e.g., here, here, here, and here). If it was an April Fool's joke, no one's admitted that yet — and my calendar says "April 3" now.

Parliamentarian of the House John V. Sullivan, will you accept an emergency phone call or email from confused members of the political blogophere? ("Dear Mr. Sullivan, re H.R. 1255: WTF? Sincerely yours ....")

Or Speaker Boehner or Majority Leader Cantor, can you enlighten us if there's some arcane procedural explanation that doesn't involve the House trying to make law by itself? Or if there's no excuse, will you at least remove the egg from your faces as graciously and expeditiously as you can?

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UPDATE (Sun Apr 3 @ 7:30pm): I'm studying the Congressional Record, augmented by YouTube videos from the House floor debate, and will put my conclusions in a new post in a while.

Is Barack Obama one of America's 50 most influential lawyers?

InstaPundit Glenn Reynolds has a polite and useful practice of acknowledging some of the "review copies" of books that have been sent to him, even if he hasn't yet read them, with his short "In the Mail" posts. These usually consist of no more than the author's name and the book's name, typically with an Amazon link (which, altogether appropriately, rebates a small percentage of all purchases back to him through the Amazon Associates program). I think it's fair to infer from such posts that Prof. Reynolds' interest has been piqued by each of the books he so lists, whether or not he ends up reading them. But I certainly don't interpret him to be endorsing all these books, or even necessarily recommending them; when he does want to recommend or endorse something, he's pretty clear about that.

Today he has such a link for a paperback by Ross Guberman called Point Made: How to Write Like the Nation's Top Advocates. Like any adversary-practice lawyer with the requisite healthy ego for that job, my first reaction upon reading that title was, of course: "It's not the 'Nation's Top Advocates' unless it includes me."

My own hypertrophied ego aside, however, I was nevertheless highly amused to read this sentence in Amazon's "Product Description" for this book:

The author takes an empirical approach, drawing heavily on the writings of the nation's 50 most influential lawyers, including Barack Obama, John Roberts, Elena Kagan, Ted Olson, and David Boies.

One of these things is not like the other things. One of these things just doesn't belong.

*******

Even Elena Kagan — who I thought was a disastrously poor oral advocate during her short tenure as Solicitor General — has at least made an undeniably successful career as a lawyer. David Boies, Ted Olson, and John Roberts are all "lawyer's lawyers," meaning that anyone who knows a damn thing about the practice of law, and in particular the practice of appellate advocacy (a fairly narrow sub-discipline), will indeed recognize them as fine examples from whom much about the art of advocacy can be learned.

And there's no doubt that Barack Obama — merely by virtue of the office he holds — is one of the 50, or five, most influential people in the world. But he certainly didn't get that job because of his excellence and abilities as a lawyer practicing law.

Indeed, the very best that could ever be claimed for Barack Obama's legal practice is that it was short, sporadic, undistinguished, and unmarred by the drive for either billable hours or courtroom success that most new "litigators" are expected to demonstrate. From his spot as "president" (effectively editor-in-chief) of the Harvard Law Review, he could certainly have found prestigious judicial clerkships and a prime job with almost any law firm in the country. He chose instead to blow off judicial clerkships, to spend the year after graduation writing his book and working on a voter registration project, and then finally to join a small Chicago firm of some local political influence but no national prominence. There, by all reports he alternated between "civil rights" legal work (broadly defined, e.g., protecting apartment dwellers' "civil rights" not to live amongst asbestos contamination) and much better-paying work representing slumlords like Tony Rezko. Indeed, Obama's current Wikipedia entry sums up his career as a practicing lawyer in a single sentence that's quite comprehensive and, if anything, a bit generous: "In 1993 he joined Davis, Miner, Barnhill & Galland, a 13-attorney law firm specializing in civil rights litigation and neighborhood economic development, where he was an associate for three years from 1993 to 1996, then of counsel from 1996 to 2004, with his law license becoming inactive in 2002."

Based on my Westlaw search of federal libraries, Barack Obama was listed as appellate counsel of record in precisely one federal appellate decision, in which he represented ACORN (yes, that ACORN) in supporting Ohio's "motor voter" law — a matter that's almost as much political as legal — and while he might well have written part or all of that brief, he wasn't even the first-chair lawyer on the case. That hardly puts him in the company of John Roberts, Ted Olson, or David Boies as an appellate advocate. Rather, it puts him in the company of about 10,000 other schlubs who've dipped a toe in appellate waters and found them too cold, the competition too intense, and the judges too demanding of excellence.

I will grant that Obama was apparently quite popular as a part-time lecturer in constitutional law seminars at Chicago Law School. But that, even added to his law practice, wouldn't make him one of the 50 most influential lawyers in the city of Chicago — much less in the whole country.

*******

I haven't bought, and obviously haven't read, Mr. Guberman's book. I wonder, though, if it doesn't rely on Barack Obama's political speeches, rather than anything he's ever written or said specifically as a practicing lawyer. [This bit of speculation was in error; please read the "Update" below. — Beldar] Because I'm here to tell you, ladies and gentlemen, friends and neighbors: When I die, if I ever make it to heaven and the Good Lord gives me some choice over leisure activities, among my top five would be trying any sort of lawsuit, representing any sort of client, in a jury trial on neutral territory against Barack Obama. Somewhere in my top ten would be arguing any appeal against Barack Obama.

I would be less keen to face him in a duel of teleprompters, especially if he still gets to have the flags and the "Hail to the Chief" and Nancy Pelosi's Botoxed grin in the background. But if Barack Obama is one of the nation's top 50 most influential lawyers based on his lawyering, his advocacy for a client in any sort of court setting, I will eat my much dog-eared copy of the Bluebook.

So let it be understood: Barack Obama is one of the nation's fifty most influential lawyers in exactly the same sense as he's one of the nation's fifty most influential basketball players: He's a President of the United States who happened to dabble in basketball and lawyering.

And frankly, I haven't seen any accomplishments from his legal practice that can rival his occasional three-pointer on the basketball courts.

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UPDATE (Sun Feb 20 @ 11:50pm): I'm pleased to report that the author of the book in question, Ross Guberman, has answered the rhetorical question I asked in this post — and my speculation that he'd relied upon one of Obama's political speeches was flat-out wrong. By his express permission, here verbatim is his considered response, which he sent me as part of a genuinely sparkling and civil email exchange (embedded link his):

Dear Mr. Dyer,

 

Thank you for mentioning my book today and for sharing your thoughts on my inclusion of Obama as one of the 50 most influential advocates.

 

I found your objection to be reasonable, so I thought I'd explain my thinking a bit.

 

I agree that Obama had a short and thin legal career. But he did sign a cert petition in an important Voting Rights Act case (Tyus v. Bosely), and so I thought my readers might be interested in seeing a few excerpts from the brief as an example of the President's legal work in his academic specialty.

 

Like any author, of course, I hope your own readers will buy my book and judge for themselves! Nearly all of the other people whose work I include have had more traditional legal careers.

Now I am indeed eager to read the book, not least because I've found so few samples of Obama's work product as a practicing lawyer online. Mr. Guberman has promised to send me a review copy — thus have I leveraged myself unabashedly into the same privileged position as Prof. Reynolds, at least in this one very small particular — and I've promised to read it with the intention of writing a review here in due course. Stay tuned!

[Beldar] On Wisconsin!

What follows is an edited version of a spirited conversation I had on Facebook yesterday with a smart and principled liberal friend, a fellow lawyer with whom I enjoy arguing politics in absolute good humor. I'll call him "Liberal Friend #2" (to distinguish him from another liberal lawyer friend whom I've referred to as "Friend #1" in our past debates in these pages).

To help make clear who's saying what, I've put the contributions of Friend #2 in blue, I've put the contributions of another liberal friend of his in purple, and I've left my own remarks in basic black):

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[Liberal Friend #2]: Join me in supporting the right for collective bargaining! The U.S. has the largest economy and the strongest middle class in the world BECAUSE of unions, NOT despite them! ...

[Snarky Beldar:] Power to the People! I stand in complete solidarity with ... the voting public of Wisconsin, who voted just a few weeks ago for a state government that would stand up to its public employee unions who've been ripping off The People for decades. Zero contribution to either their pension or their health care plans — THAT's what the union is going to the barricades to prevent. And they're doing so through thuggish tactics (e.g., mobbing the houses and implicitly, sometimes explicitly, threatening the families of GOP legislators). I'll grant you, [Friend #2], that in the private sector, unions have sometimes been a useful counterbalance to management/ownership. That's not this at all though....

The rationale for collective bargaining agreements is that they redress an imbalance of bargaining power that favors private management. There is no similar justification for public sector employees because the government (in a democracy) already, by definition, is carrying out employment policies for the benefit of everyone in the state. Public employee strikes are typically illegal, not because the gov't is anti union but because the strikes are used to coerce & intimidate the public (not just private management that's trying to look after private ownership interests).

[Friend #2:] So then you FULLY support private sector unions and would oppose any legislative schemes to dis-empower them as well?

Public employees should have the same rights as private employees, for the VERY reason we see coming to fruition in Wisconsin. When some right wing governor takes office, he should not be able to unilaterally decide "all public employees take a 5/10/20/?? percent pay cut!"

Those employees should ABSOLUTELY be part of the process and have a place at the table where those discussions take place.

There is NO reason to make them sit silently in the corner while their livelihoods are subject to the whims of political expediency. Taking away their collective bargaining rights paints a target on their backs a MILE WIDE for any other politician looking to score points in the future.

[Friend of Friend #2:] ... I don't think you can honestly state that teachers and other public servants have "ripped off" the system, they negotiated for what they could get — that American way thing conservatives always talk up. Or is that only for the rich and powerful?

[Snarky Beldar:] I'm not urging the repeal of the National Labor Relations Act, no. I do oppose efforts by the Dems (so-called "Card Check") to do away with employees' rights to vote for or against unionization via secret ballot — there's history of intimidation by both management and labor when individual employee votes can be tracked. And [Friend #2], this isn't just a "right wing governor." It's a conservative governor backed by a conservative state legislature — DEMOCRACY. Elections have consequences, and if the voters of WI don't like what their most recently elected legislators and governor do with regard to public employee contracts in a near-bankrupt state budget, then by all means they can throw the bums out and put their own bums in, who presumably can restore collective bargaining. I don't see that happening, because the fact is that the public wants accountability. They want results. They want to stop shoveling money into the black maw of public education while test scores continue to drop and even terrible teachers can't be fired. They want public employees to at least make SOME contribution to their own retirement and pension plans, just like the rest of Americans do — not get a gold-plated benefits package that's theirs in perpetuity.

Lest you think I'm anti-teacher or anti-public school: My paternal grandfather and two of my aunts taught in the public schools. My mother was a teacher and eventually became the highest-ranking woman administrator in the Austin ISD's special ed program. My sister taught blind and deaf kids at the Texas State School for the Blind, and then taught elementary school for normal kids for several more years. ... [A]ll four of [my] kids have gone exclusively to public schools[, as did both I and my ex-wife]. And my oldest daughter is an elementary education major at UH right now. I'm pro-teacher and certainly pro-student and pro-public education. None of those stances conflict with being anti-public employee union, though. Unions will start representing the interests of kids as soon as students start paying union dues.

... I concede your point[, Friend of Friend #2,] that the existing contracts were agreed to by the state. I'll concede an implicit point, too, which is that unions not just in the US but throughout the western world have been very clever in focusing on benefits rather than just wages, and in particular that they've been very shrewd negotiators on long-term benefits, taking full advantage of the natural tendency of legislators to fixate on the short term and the simple (often at the expense of the long-term and the profound). The voters of WI have now decided, however, that the legislators and governor they'd previously entrusted to negotiate on the public's behalf with their public employee unions were doing a really bad job — basically, giving away the store — and that that's a big part of why there's such a budgetary crisis facing Wisconsin. So the voters fired those guys. They brought in new guys who promised to make changes. So now, of course, the Party o' Hope-'n-Change is endorsing mob tactics to subvert the legislative process and preserve the status quo (i.e., to continue the state's slide into bankruptcy). The rank and file of PATCO paid the price when their leadership thought they could face down Ronald Reagan. I'd hate to see a similar fate befall Wisconsin's rank-and-file teachers, whose leaders are leading them off the very same cliff.

[S]ome time over a few beers, ask me about the [such-and-such] case. It's my only personal foray into labor law, but it was a really huge one, and it's definitely colored my views on labor relations — and not in a conventionally pro-management fashion, either: After that trial, the guy I ended up going out and getting drunk with was my opposing counsel, the top lawyer for [the] union. (But neither of us wanted to go drinking with the top guy from the Department of Labor — heh.)

[Friend #2:] Are you suggesting that the state employees in WI simply give up ALL rights to collective bargaining without a fight, and just HOPE that someone comes into office willing to give salary increases when times are good? I think the odds of a government official simply volunteering to do so are slim to none, regardless of party affiliation.

And hey, NO ONE likes to drink with federal lawyers, they are all WAY too serious!

[Snarky Beldar:] [Y]ou can't have it both ways. You can't insist that democratic government is good, and then turn around and immediately insist that people need special rights to level the playing field against the big bad democratic government. If government is well run, then it will pay a competitive wage and offer competitive benefits because that is in the public's best interests; and yes, what's "competitive" means it will be set by the market (including market alternatives, e.g., private schools). They have no legitimate NEED for collective bargaining. But to answer your question directly, no, I don't expect them to give up anything voluntarily, I expect them to follow their leaders off the cliff of public opinion because their leaders are greedy and selfish and, frankly, not too bright (see again the PATCO example).

[Friend #2:] I'm not really sure I see the conflict between democracy and collective bargaining.

[Snarky Beldar:] I'll hold my peace (*wild applause*) ... after sharing these words with you: "All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress." The speaker? FRANKLIN D. ROOSEVELT.

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UPDATE (Sat Feb 19 @ 1:30pm): Contrary to the impression one might get from my discussion yesterday, the Wisconsin fight is not about an absolute abolition of collective bargaining for public employee unions generally. While many states already outlaw collective bargaining by public employees either in whole or in part, Gov. Walker is mostly trying to roll back an increase in Wisconsin public employees' collective bargaining rights that was previously granted by a Democratic-controlled state legislature. And the unions have agreed in principle with the notion that their membership ought to share in the costs of pension and health-care plans. According to the Wisconsin State Journal (if you dig down into the nitty gritty details of their report):

Top leaders of two of Wisconsin's largest public employee unions announced they are willing to accept the financial concessions called for in Walker's plan, but will not accept the loss of collective bargaining rights....

Walker's plan calls for nearly all state, local and school employees to pay half the costs of their pensions and at least 12.6 percent of their health care premiums. That would save $30 million by June 30 and $300 million over the next two years, the governor has said.

The measure also would prohibit most unionized public employees, except local police and fire fighters and the State Patrol, from bargaining on issues besides wages. Wage hikes could be negotiated only if they don't exceed the consumer price index.

The reason the unions — and the Democratic Party — are treating this like Armageddon is that it's the health-care and pension benefits where their members have made out like bandits in the past. Legislators have pretended to "hold the line" on wages while giving away the store on benefits that would be paid for by some future state legislature in some future year. That's exactly why so many states are now flat broke, or on the brink of that.

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UPDATE (Sat Feb 19 @ 9:30pm): By the way, in Texas and a dozen other states, public employees have never had the right to collective bargaining, even on wages. Keep that in mind when you hear that Gov. Walker's about to make the sky fall.

I'm curious, though, what the explanation is for exempting police unions. If there is one (other than "They're too powerful already for us to mess with"), I can't immediately think of it.