Archive for the Rule of Law Category

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    • Gary Becker

    Are Too Many People in Prison?

    | April 07, 2012 | 1:11 pm

    Does imprisonment reduce crime? Yes.

    Do many crimes cause considerable harm and hardships to victims? Yes.

    Does America imprison too many people? In light of my answers so far, you might expect my response to this question to be no. But it is a strong yes.

    Imprisonment reduces crimes against the general public, if only because of the incapacitation effect; that is, people in prison cannot commit crimes against the public (they can and do commit many crimes against other prisoners). For certain crimes, imprisonment is also a deterrent, so that potential offenders are kept from committing crimes by the prospects of prison terms, especially when there is a good probability of being caught.

    On the other hand, imprisonment also raises the likelihood that some prisoners will commit crimes when they are released because their skills at legal employment eroded while in prisons, or they learned in prison how to be better criminals, or they become blacklisted for certain jobs, or other reasons. Nevertheless, a study on the decline in crime by economist Steven Levitt, along with other research, finds that on balance imprisonment reduces crime. The main disagreement is whether the whole effect of imprisonment on crimes comes from the incapacitation effect or whether some is also due to deterrence. I believe deterrence is also at work.

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    Benjamin Wittes

    The Next Ten Years

    | April 07, 2012 | 12:01 pm

    Ten years have passed since the opening of the U.S. detention facility at Guantánamo Bay, Cuba, and the anniversary was marked with much hand-wringing. There were articles by former detainees, a statement by retired military personnel, denunciations of President Obama for his failure to close the site, and tear-stained statements by human rights groups.

    In a decade of policy experimentation at Guantánamo, some efforts have succeeded, some have failed tragically, and some are still in process. But far more interesting than the past ten years is what the next ten will look like. And that subject seems oddly absent from the conversation.

    Make no mistake: there will be another ten years of Guantánamo. (Even if Guantánamo itself miraculously closed, we would have to build it somewhere else.) Our forces already hold more detainees than they can safely release or put on trial before any tribunal to which this country would attach its name. And in any future conflict against nonstate actors, our forces are likely to capture more of such people, and we will have to put them somewhere. If the United States is lucky, we may be able to reduce the number of detainees further than the combined efforts of the George W. Bush and Obama administrations have so far managed. But we will not eliminate it, and even if we could, we cannot guarantee that we will not replenish it all of a sudden in some future, spasmodic set of military operations abroad.

    Continue reading Benjamin Wittes…

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    Ed Meese

    Secure Solution

    | April 07, 2012 | 6:31 am

    The detention and interrogation facility at Guantánamo Bay, Cuba, which I have visited, has served and continues to serve an important role in the war against terrorists since it opened a decade years ago. It houses high-value terrorist detainees, like Khalid Sheik Muhammad, the architect of September 11.

    The military commissions’ courthouse, called the Expeditionary Legal Compound, is a world-class, state-of-the-art facility specifically designed to accommodate the needs of both defense and prosecutors dealing with classified information. The detainees there are represented by civilian and military counsel, and the U.S. Supreme Court has ruled that they enjoy the constitutional right of habeas corpus. The conditions of detention there are safe, secure, and humane, and comply with national and international standards, including Common Article 3 of the Geneva Conventions.

    It is important to remember that the United States of America is engaged in armed conflict and has been since September 11, 2001. The September 18, 2001, Authorization for Use of Military Force, relied upon by both the Bush and Obama administrations, gives our military the legal authority to engage the enemy under appropriate circumstances.

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    Victor Davis Hanson

    Walking Back the Trayvon Martin Hysteria

    | April 06, 2012 | 8:16 am

    1) If one suggests that there may not be, at least as yet, enough evidence to overturn the initial police decision of not charging Mr. Zimmerman with a crime, then one is a de facto racist.

    In other words, the liberal position of letting all the evidence be reexamined in a dispassionate fashion is now illiberal. And the illiberal one of charging someone with a felony without established probable cause is liberal. But just arresting and charging a suspect to let a judge or jury post facto decide whether there was ever probable cause for such an arrest is neither liberal nor consistent with American jurisprudence.

    2) It is clear now that the African-American civil-rights hierarchy is concerned largely with maintaining power and influence by promulgating the theme of unending white racism — and the need for its exclusive agency to find redress and reparations from that eternal fact. That is a serious charge, but one easy to substantiate — whether we compare the commensurate outrage accorded the Duke case, the Skip Gates mess, the Tawana Brawley hoax, or the present Trayvon Martin tragedy, with the veritable neglect about the carnage of young African-American males in our cities, or the deliberate distortion that white-on-black crime is an epidemic when, in fact, black-on-black crime is — in addition to the fact of vastly higher incidences of black-on-white crime.

    Continue reading Victor Davis Hanson…

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    Jack Goldsmith

    The President’s Comments on the Supreme Court

    | April 06, 2012 | 8:13 am

    Just about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.

    What a terrible idea for the President to charge the Supreme Court with an “unprecedented, extraordinary step” of judicial activism if it strikes down parts of the health care law.  It was not a bad idea because it constituted bullying of the Court.  It was a bad idea – at least from the President’s perspective – because it makes it harder for the Justices to rule in favor of the President’s position.  After his very public criticism, a vote to uphold the law by the Justices who sharply questioned the law at oral argument will invariably be seen as cowing to the President – an appearance, I am confident, the Justices very much want to avoid.  In other words, by questioning the Justice’s independence, the President made it harder for the Justices whose votes he needs to act in his favor.  That, I suspect, is why the President has tried to walk back his remarks.

    Also surprising to me are conservative protests that the President has crossed the line in criticizing the Court as activist.  President Obama was entirely accurate when he said: “I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”  However imprudent and impolitic the President’s remarks, he was in essence mouthing a central conservative complaint about the judiciary since the 1950s.  (I realize that matters are more complicated than this, but during the Obama years many conservatives have indeed been moving away from a jurisprudence of restraint.)  Conservatives were on firmer ground in criticizing the inaccuracy of the president’s claim that striking down the health care law “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  And of course it is odd for President Obama to implicitly embrace judicial restraint as a matter of principle.

    Continue reading Jack Goldsmith…

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    David Davenport

    The Prosecutor of the International Criminal Court Makes a Sensible, if Delayed, Decision

    | April 05, 2012 | 2:14 pm

    The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.” This closes off, for now, an attempt by
    Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.

    But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state. To that the answer is “no, for now.”

    The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation. But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.

    The Prosecutor, Luis Moreno-Ocampo, seriously entertained the question for three years, following a remarkable prosecutorial process of inviting outside submissions, posting briefs on the Internet, and hosting roundtable arguments in his offices in the Hague. He seemed open to the possibility that the definition of “State” for purposes of the ICC might be different than a “State” in international law generally. He spent three years looking at arguments that Palestine possessed this or that mark of statehood. One sensed that he was under political pressures to open the doors of the Court more widely to take this case.

    In the end, the Prosecutor said it was really up to the United Nations to decide what is a “State” and that, so far, Palestine was only treated there as an observer. It thus becomes a political decision for the U.N., rather than a legal decision for an international
    court, which was surely the right answer all along. The lengthy process for what should have been a straightforward decision reminds us of the dangers of these politicized and expansionist international courts.

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    Jack Goldsmith

    What if Obama had been President on 9/11?

    | April 05, 2012 | 12:09 pm

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    Jack Goldsmith

    The President’s Comments on the Supreme Court

    | April 05, 2012 | 10:27 am

    Just about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.

    What a terrible idea for the President to charge the Supreme Court with an “unprecedented, extraordinary step” of judicial activism if it strikes down parts of the health care law.  It was not a bad idea because it constituted bullying of the Court.  It was a bad idea – at least from the President’s perspective – because it makes it harder for the Justices to rule in favor of the President’s position.  After his very public criticism, a vote to uphold the law by the Justices who sharply questioned the law at oral argument will invariably be seen as cowing to the President – an appearance, I am confident, the Justices very much want to avoid.  In other words, by questioning the Justice’s independence, the President made it harder for the Justices whose votes he needs to act in his favor.  That, I suspect, is why the President has tried to walk back his remarks.

    Continue reading Jack Goldsmith…

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    Michael McConnell

    O’s ugly ‘warning’

    | April 04, 2012 | 8:51 am

    By all accounts, President Obama’s lawyers did a poor job of defending the constitutionality of his signature health-care-reform law in the Supreme Court last week. So he’s rearguing the case himself. On Monday, he declared that it would be an “unprecedented, extraordinary step” for the court to overturn a law “passed by a strong majority of a democratically elected Congress.”

    This statement is puzzling, to say the least. It is by no means “unprecedented” or “extraordinary” for the court to strike down the act of a democratically elected legislature.

    Has the president not heard of Roe v. Wade (1973), where the court invalidated the democratically enacted laws of all 50 states? And even Marbury v. Madison (1803), which struck down a section of the First Judiciary Act?

    How about INS v. Chadha (1983), where the court invalidated over 200 statutory provisions, many enacted by overwhelming bipartisan majorities?

    Is the president unaware that the court in recent years has declared unconstitutional the Line Item Veto Act (struck down in 1998), major portions of the Sentencing Reform Act (2005), the Religious Freedom Restoration Act (1997) and two different attempts at campaign-finance law (in 1976 and 2010) — just to name some of the most prominent?

    Continue reading Michael McConnell…

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    Diana Schaub

    South Africa’s Orwellian Constitution

    | April 04, 2012 | 8:47 am

    The U.S. Constitution is, as Justice Ruth Bader Ginsburg has recently reminded us, “a rather old constitution.” In her parlance, old does not mean venerable or worthy of imitation. Speaking on Egypt’s Al Hayat TV, she advised constitution-drafting Egyptians to look to newer models; she singled out the Constitution of South Africa (1996), Canada’s Charter of Rights and Freedoms (1982), and the European Convention on Human Rights (1950).

    Admittedly, the oath she swore to “bear true faith and allegiance” to the U.S. Constitution does not require Justice Ginsburg to recommend its adoption by all and sundry. There might be good reasons—rooted in history and circumstance—why a constitution suited to one people is not suited to another. Laws ought to be in accord with the general spirit of a nation, as Montesquieu, the great theorist of modern constitutionalism, argued. This was not the Justice’s point, however. She thinks there are blueprints worthy of export, just not the one ratified by Americans in 1787.

    Her opinion is the fashionable one. A forthcoming article in the New York University Law Review confirms the declining influence of the U.S. Constitution. The reason?—“it is increasingly out of sync with an evolving global consensus on issues of human rights,” authors David S. Law and Mila Versteeg argue. This focus on rights (the more, the better) is evident in the documents Ginsburg endorsed. Two of them aren’t even constitutions in the usual sense of a plan of government. Instead, one is a supranational convention about human rights; another is a national charter of rights (added to the Canadian Constitution of 1867 when Canada, in 1982, finally became fully independent of the British Parliament).

    Continue reading Diana Schaub…

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    Richard Epstein

    Observations on ObamaCare

    | April 03, 2012 | 6:58 pm

    There are a number of constitutional and logical slips in the seductive argument that Paul Krugman puts forward in favor of the constitutionality of the individual mandate.  First, the question why any form of health insurance involves a question of “interstate commerce” at all.  Under the current elastic and indefensible definitions of interstate commerce, any form of local activity that influences the quantity and price of goods in interstate commerce becomes itself a form of interstate commerce, at which point there is precious little that lies outside that domain.

    Note the potential reach of this argument  by the standard definition that Krugman embraces, getting sick and buying insurance influences the ability of the United States to deal with foreign nations, so that Congress can presumably regulate it as a form of commerce with foreign nations.  More impressively, since the health of their populations influences health in this country, why not say that the Constitution gives the Congress the power to expand the health care benefits that Canada, Great Britain and the rest of the world supplies to their own population.  It is a form of constitutional newspeak to treat all these local activities as though they were commerce among the several states, when they are, most emphatically anything but.

    Continue reading Richard Epstein…

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    David Davenport

    The Prosecutor of the International Criminal Court Makes a Sensible, if Delayed, Decision

    | April 03, 2012 | 12:56 pm

    The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.”  This closes off, for now, an attempt by Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.

    But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state.  To that the answer is “no, for now.”

    The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation.  But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.

    Click to read more.

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    Laura Huggins

    Trading Sheep for Grass and Fish in Patagonia

    | March 28, 2012 | 8:32 pm

    The big brown trout I was fishing for yesterday on the Limay River in Patagonia was nowhere to be found but I did manage to come across an old hang out of Butch Cassidy.

    Being from Montana, where the Hole-in-the-Wall Gang pulled off their last job—a holdup of a Union Pacific train—before fleeing to South America, I was happy with this historical catch.

    Legend has it that Butch became friends with Jarred Jones who ventured down to Argentina from Texas in 1887 to make his fortune. Jones didn’t find gold but he did manage to open a general storeat the mouth of the Limay. The old store, which is now a friendly restaurant, still holds the shops books, old photos, and a frontier atmosphere of a century ago.

    Jones earned enough money at the store to purchase two big ranches, which he fenced off with barbed wire—the first to be seen around these parts. Today, barbed wire is strung across much of the 98 million hectares of the Patagonian Steppe to enclose vast quantities of sheep.

    Unfortunately, a flock of sheep can gobble up great expanses of native grasses, and in southern Argentina, they’re clearing some serious vegetation. In addition to vegetation loss, overgrazing equates to lost habitat for other animals, and damages waterways with runoff and silt from erosion, which affects the fish, which affects tourism.

    Continue reading Laura Huggins…

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    Richard Epstein

    The Dubitable Constitutionality of the Affordable Care Act

    | March 27, 2012 | 11:02 am

    By now everyone knows that the Supreme Court will take up the watershed case of this century, when it examines the constitutionality of the Patient Protection and Affordable Care Act—the ACA or ObamaCare to both the friends and enemies of the Act. I have coauthored with Mario Loyola of the Texas Public Policy Foundation a brief that sets out our case against the constitutionality of the Act.  I have also written elsewhere about the complex historical evolution of the commerce clause.

    I am relieved to learn, after all, that the case against the individual mandate is so trivial that three eminent legal authorities, Jeffrey Toobin, Linda Greenhouse and Dahlia Lithwick, found it easy to put me out of my intellectual misery by announcing that the act is manifestly constitutional on the indubitable authority of Wickard v. Filburn, which in their view has become the constitutional pillar of a boundless federal power.  Indeed, their collective wisdom is such that the case for the constitutionality of ObamaCare is so self-evident that only dark political motives can account for the willingness to overturn a statute whose impeccable social credentials make it the culmination of a long overdue reform movement.

    Let me confess to be one of the unpersuadables.  There is of course a powerful correlation between those who praise ObamaCare and embrace its constitutionality.  There is none of the typical posturing which says that we’ll leave it to Congress to deal with the wisdom of the laws while we merely determine their constitutionality.  However on this question, turnabout is fair play, for we should look at the wisdom of statutes, or their lack thereof,  in order to orient ourselves with respect to their constitutionality.

    Start with Wickard, which in soothing terms had as its objective the “stabilization” of agricultural markets under the Agricultural Adjustment Acts, by allowing the government to even out prices during good times and bad.  All that is a polite way of saying that the government should get into the business of organizing agricultural cartels, which can then reduce output by burning excess crops or forcing land to remain idle in order to reduce supply. At the other end of these cartels lie consumers, who suffer manifestly from the high prices and reduced supply that made it all the harder for them to weather the 1930s depression.  Roscoe Filburn was a cartel-breaker because he sought to escape the regulation and increase supply by feeding his own grain to his own cows.

    Continue reading Richard Epstein…

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    Richard Epstein

    Obamacare: An Unconstitutional Misadventure

    | March 26, 2012 | 9:45 pm

    This week, the United States Supreme Court has on its plate the defining legal issue of our time—the constitutionality of the Patient Protection and Affordable Care Act (ACA), which I have already commented on from a doctrinal and historical perspective. In this column, I will show how fatal defects in Obamacare’s structure undermine the constitutional case for key provisions found in Title I of the law (“Quality, Affordable Health Care for All Americans”), which regulates the private insurance market.

    For openers, the ACA is subject to the law of unintended consequences. The law may proclaim that it protects patients when it in fact it restricts the health-care options of those it’s intended to protect. The ACA says that it will increase access to affordable care when in fact its endless mandates will drive up the cost of care. The false advertising of the ACA’s title conceals a wealth of difficulties with its internal design, which make its scheme unsustainable in the long run.

    One unfortunate byproduct of the obsessive emphasis on the individual mandate—the requirement to have health-care insurance or pay a fine—is that it diverts attention away from the many other unsound provisions of the law. The Supreme Court need not fear that striking down Title I of the ACA will deny Americans needed health care. Rather, its implementation will have that effect.

    Continue reading Richard Epstein…

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    Stewart Baker

    REAL ID-Back from the Dead?

    | March 25, 2012 | 6:18 pm

    I testified a few days ago at a House Judiciary subcommittee hearing on REAL ID implementation.  I expected to have harsh things to say about the way REAL ID has been handled by the National Governors Association and the Obama administration. And there was certainly plenty to criticize.  But what surprised me after a few years away from the issue is how much progress has been made, almost reluctantly, by all parties.  Much more secure identification is now within reach, though politics may delay the final steps much too long.  Here’s some of what I told the subcommittee:

    Unfortunately, not everyone agrees with the need for better drivers’ license security. Opposition to REAL ID unites the nations’ governors and the ACLU. As a candidate, President Obama campaigned against REAL ID. And as a governor, Secretary Napolitano did the same. So it was no surprise that the Obama administration supported repeal of REAL ID and adoption of a softer approach, called PASS ID. Expecting PASS ID to be adopted, the administration soft-pedaled the states’ obligations under REAL ID.

    Continue reading Stewart Baker…

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    Henry Miller

    The Cigarette Smokescreen

    | March 21, 2012 | 10:00 am

    Cigarette smoking is one of the major preventable scourges of human health. Public health experts and regulators—and yes, even smokers—know it. But by being politically correct and focusing on unproven or misguided approaches, the FDA is passing up a historic opportunity to mitigate the health effects of cigarette smoking. Specifically, FDA officials are struggling to reconcile science and politics in applying their new powers to regulate tobacco. They aren’t succeeding.

    As a result of the landmark 2009 Family Smoking Prevention and Tobacco Control Act, the FDA was tasked with regulating not just cigarettes, but a range of tobacco products. The agency’s oversight of tobacco is fundamentally different from any other product it regulates simply because tobacco is an inherently, irredeemably dangerous product. Unlike drugs, it isn’t beneficial in any way; and unlike food, it isn’t a necessity.

    The legislation gives the FDA the authority to review and ban proposed new products unless they are proven to significantly improve public health. This has already led to unanticipated legal and scientific arguments over so-called “reduced harm” products.

    The director of the FDA’s Center for Tobacco Products, Dr. Lawrence Deyton, seemed to be on the right track, at least in principle, when he told the Society for Research on Nicotine and Tobacco last year that “complex problems require multi-faceted, comprehensive approaches based on the best available science.”

    However, the agency’s approach to several regulatory issues belies Deyton’s homage to science (a traditional trapping of many a regulator assuming a new office).

    Continue reading Henry Miller…

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    Richard Epstein

    City Planners Run Amok

    | March 20, 2012 | 1:45 pm

    The Upper West Side (UWS) of New York City operates in a moral and political universe different from my own. Currently, its confident progressive worldview has precipitated a major land use controversy. On the urging of the UWS “community” and its elected officials, the City’s Department of Planning has endorsed this modest proposal “for new or expanding establishments” on Broadway, Columbus, and Amsterdam avenues. These are major commercial streets, yet the proposal seeks to limit store frontage on them to forty feet for general retail and twenty-five feet for banks.

    The proposal earns its “modest” label, because, as the Planning Department confidently notes, the rule would not limit the overall size of the business, the configuration of its interior space, or its kind of operations. Still, many businesses and banks currently exceed the proposal’s limit, often by multiples of four and five.

    The locals insist that this regulation is needed to preserve the distinctive character of the neighborhood from large banks and major retail chains, which gobble up valuable frontage in ways that drive out small local businesses. The UWS is said to be “largely unique” because the space available for commercial use is limited relative to the population density, driving rents up. The supporters of the bill are determined to protect the “mom-and-pop” stores from unapologetic corporate behemoths. The local community board has unanimously approved this proposal over the vocal opposition of the City’s commercial real estate interests and passage now awaits approval by the City Council and then the Mayor. Let’s hope it doesn’t happen.

    Continue reading Richard Epstein…

    (photo credit: India Amos)

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    Richard Epstein

    Can Congress Force Individuals to Buy Insurance?

    | March 14, 2012 | 11:30 am

    (photo credit: TexasGOPVote.com)

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    Jack Goldsmith

    New Book

    | March 12, 2012 | 1:01 pm

    I have a new book out today: Power and Constraint: The Accountable Presidency after 9/11.  It argues that constitutional checks and balances deeply constrain the national security presidency, and that these checks and balances are the key to understanding Barack Obama’s continuation of George W. Bush’s counterterrorism policies, as well as the broad national consensus in support of those policies.

    The presidency has of course grown in many ways during the first decade of indefinite war against Islamist terrorists and other modern threats.  Much less noticed, but just as important, is a revolution in wartime presidential accountability that has shaped and legitimated the growth in presidential power.  Congress and courts pushed back harder against the presidency than in previous wars, in the process vetting, altering and ultimately blessing his core counterterrorism policies.  These traditional institutions received crucial support from something new and remarkable: giant distributed networks of lawyers, investigators, and auditors, inside and outside the executive branch.  In conjunction with the press, these forces watched the presidency closely and enforced legal and political constraints against it.  By 2009, almost all of George W. Bush’s counterterrorism policies had been altered and blessed in ways that Barack Obama – seized of the responsibilities of the presidency – found impossible to resist.  The same forces that pushed against Bush from the left also pushed against Obama from the right and prevented him from closing GTMO and trying GTMO terrorists in civilian courts.  Two presidents with starkly different views about executive power and proper counterterrorism tactics ended up in about the same place because constitutional forces more powerful than the aims of the presidents were at work.  In telling this story about modern presidential accountability, I draw on over 80 interviews with political, military, and intelligence officials in the Bush and Obama administrations, and with key representatives in the modern accountability regime for the presidency, including members of Congress and their staffs, federal judges, government lawyers and watchdogs, national security journalists and their editors, and human rights activists.

    If you read the book I hope you like it.

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