Archive for the Rule of Law Category

Michael McConnell

Read his column at Reuters: “These are significant rulings in support of federalism and the ideal of limited government. They will reverberate in litigation for years to come.”

And a post over on the Volokh Conspiracy blog: “The Supreme Court’s Spending Clause holding, which commanded seven (!) votes, may be the most important aspect of yesterday’s health care decision, from the perspective of constitutional federalism.”


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James Ceaser

Yesterday’s Supreme Court decision on Obamacare is a tragic setback to the nascent movement of  “political constitutionalism.” For three years, beginning with the emergence of the Tea Party, millions of citizens joined together in trying to settle the broad meaning of the Constitution through political means, by public debate and by efforts to elect public officials committed to a certain understanding of the purposes of the nation’s governing document. Courts should not be the sole arbiters of certain constitutional questions, especially those dealing with the extent and limits of government power. The political process has its own role to play in constitutional decision-making.

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Over the next week, Advancing a Free Society will publish a series of pieces related to the Supreme Court’s decision in National Federation of Independent Businesses v. Sebelius. The Forum will cover the law, the medicine, the economics, and the politics surrounding this landmark ruling.

Below, renowned legal scholar and Hoover Senior Fellow Richard Epstein reviews the decision on the Medicaid expansion. According to Epstein, this decision is “welcome,” although not perfect, after the “unhappy performance” of Chief Justice Roberts on the individual mandate.

Earlier today, Hoover research fellow Bill Whalen provided his assessment of what this generally unexpected Supreme Court decision means for the presidential campaigns and, perhaps, Election Day.

Follow The Hoover Forum on the Supreme Court’s health care ruling by subscribing to the Advancing a Free Society RSS feed or subscribing to the new Hoover Daily Report.

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Richard Epstein

Unlike his unhappy performance with the individual mandate, the Chief Justice wrote a far more compelling decision when he struck down key portions of the Medicaid mandate. This provision has been largely overshadowed by the nonstop controversy over the individual mandate, but make no mistake about it: the issue is huge. Most observers regarded this issue as a dead loser for the states, who lost (to a series of dreadful opinions) in the lower courts. But the seven to vote in favor of striking this down comes as a real, but welcome, shocker.

To back up for the moment, Medicaid is one of this nation’s growth industries, where expenditures right now are in the hundreds of billions of dollars. The Medicaid expansion is poised to increase that perhaps another $100 billion. Under the ACA, the federal government hopes to achieve that expansion in coverage by a combination of the carrot and the stick. The carrot is the willingness to cover up to 90 percent of the additional funds, so long as the states pick up the remainder of the money and the additional expenses to cover the population that earns between 100 and 133 percent of the poverty line. The threat is that the states that don’t want to play ball lose not only the matching federal money, but also their entire Medicaid allotment under the existing program, often in the billions of dollars.

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Leisel Bogan

On June 15th 2012, the International Criminal Court will swear in its second Prosecutor, Fatou Bensouda, at its headquarters in The Hague, just weeks before the Court’s tenth anniversary on July 1st. Bensouda takes the reigns at an important juncture: a four-person ICC delegation sits detained in a Libyan prison, the ICC’s arrest warrant for Sudanese President Omar al-Bashir has not resulted in his capture, a state-sponsored slaughter of civilians continues in Syria and the court, having spent $900 million dollars over the last ten years, has successfully prosecuted only one individual. For all its symbolic importance and dedication to “never again,” the International Criminal Court has been at best an awkward institution of the international community, and at worst, an ineffectual instrument of politics-by-other-means.

As Eric Posner recently pointed out, the International Criminal Court’s focus on genocide, crimes against humanity, and war crimes seems incongruous with its jurisdiction—few authoritarian or military states have acceded to its Statute. This, too, is not without complication, as we saw in the declaration lodged with the Office of the Prosecutor by the Palestinian Authority. The Prosecutor rejected the case after three long years of fruitless and very public debate over whether the Palestinian entity constituted a state under international law. Some scholars have argued that current prosectuor O’Campo entertained the declaration as an end-run against the existing Middle East peace process, or simply to counteract criticism that the court is biased against Africa. The court was not established to decide complicated international policy matters nor was it designed to be a tool of the diplomatic process. Additionally, individuals whose status is unclear under international law—who, not coincidentally, are often those most exposed to crimes against humanity—may still lack an institution capable of addressing their grievances.

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Gary Becker

Are Too Many People in Prison?

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.

Continue reading Gary Becker…

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Benjamin Wittes

The Next Ten Years

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

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

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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