Archive for December, 2008
posted by Danielle Citron
As 2008 draws near, we naturally have much to reflect upon, from the momentous election and our troubled economy to the War in Iraq and the loss of people who touched our lives in signficant ways. The New York Times Magazine did a magnificent job honoring some of those extraordinary individuals who died in 2008. One person featured in the Sunday Times deserves special mention as we head into the New Year: Mildred Loving, a black woman whose anger over being banished from Virginia for marrying a white man led to a landmark Supreme Court ruling overturning state miscegenation laws.
Mildred Loving married Richard Loving, a white man, in the District of Columbia in 1958. After the wedding, they returned to their home in Virginia where they were promptly jailed under Virginia law for “cohabitating as man and wife, against the peace and dignity of the Commonwealth.” Mildred spent five nights in a rat-infested jail, while Richard spent only one day in jail. The Lovings pled guilty and were sentenced to one year in jail, which the court suspended on the condition that they leave Virginia. After living apart from her Virginia-based family for four years, Mildred Loving wrote a letter to the Washington branch of the A.C.L.U. seeking legal help. She explained: “We know we can’t live [in Virginia]” because “my husband is White [and] I am part negro, & part indian” but “we would like to go back once and awhile to visit our families and friends.” The Virginia judge told them that if they set foot, together, in the state again, they would be jailed for a year, noted Ms. Loving.
As our law students know well, Ms. Loving’s letter inspired two young civil rights lawyers to take up her case, which ended in 1967 with Chief Justice Earl Warren’s ruling striking down Virginia’s anti-miscegenation law on the grounds that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” But something that may be overlooked in thinking about Loving v. Virginia and Ms. Loving’s role in history is the extraordinary bravery that Ms. Loving possessed. Mildred Loving wrote that letter to the A.C.L.U. in June 1963, the same month that Governor George Wallace made good on his “segregation forever” pledge by gathering state police to prevent two black students, Vivian Malone and James Hood, from entering the University of Alabama. No doubt, she knew about the Ku Klux Klan’s bombings, lynchings, and murders throughout the South, including Virginia. Yet, despite the very real possibility that challenging her inability to return to Virginia might endanger her life, she wrote the letter anyway. And she remained steadfast to the ideals of social justice until the very end of her life, when she publicly stated her support of gay marriage on the 40th anniversary of the Loving ruling last year. Mildred Loving, R.I.P.
posted by Frank Pasquale
The application includes a set of entrancing songs that go on forever, using the iPhone’s internal microphone to ‘listen’ to the noises and voices heard in your proximity to dynamically create music.
I earlier blogged about this type of unexpected fixation of sound in the context of overheard conversations; I wonder if this raises any new copyright issues. It’s certainly more transformative than “Overheard in New York.”
The RjDj app reminds me a bit of Thich Nhat Hanh’s advice to approach both “garbage and flowers” with equanimity. It promises to turn even the most annoying loudmouth on the sidewalk into an instrument in an electronica symphony. I’m hoping it will be more popular than bubble wrap and less. . . er. . . edifying apps.
Sample song below the fold . . . .
posted by Brian Kalt
Politico and MSNBC are reporting that the Senate Democratic leadership is indicating its refusal to seat Roland Burris, who Illinois Governor Rod Blagojevich today indicated he will appoint to fill President-Elect Obama’s vacant Senate seat.
I’m not sure where the Senate Democratic leadership thinks it gets the authority to not seat Burris. Under Powell v. McCormack, the ability of the Senate to exclude someone would seem to be limited to judging that he hadn’t won the election (not applicable here) or that he is not qualified (30 years old, a resident of Illinois, and a U.S. citizen for nine years). Their discomfort with Burris’s appointer doesn’t enter into it.
Presumably, they could seat Burris and then expel him, but that would require a 2/3 vote, which would be hard to muster given that, by all accounts today, Burris is personally unobjectionable.
My best guess is that the Senate Democratic leadership would argue that the Senate’s authority to judge the elections of its members extends by analogy to judging the appointments of its members; and that a corrupt election would be cause to not seat someone, so a corrupt appointment should be too. But surely this sort of determination would require some sort of investigation rather than a conclusion that Burris is unfit for office (even if the Senate could get away with this constitutionally, it shouldn’t try to). Burris has not been connected to the corruption case as far as I know. What are the odds that Blagojevich would appoint him corruptly in the middle of this investigation?
If I were a leader in the Senate, I would confer with Sen. Durbin and Illinois state officials, and see what they think. I might hold some hearings to find out more about the circumstances of Burris’s selection. But I would not say that the Senate can just refuse to seat Burris.
posted by Frank Pasquale
In an interview with Terry Gross, Penn bioethicist Art Caplan claimed the the Bush Administration had severely compromised the nation’s capacity to deal with public health and safety threats. I was surprised by the strength of his language, but the more discussions of FDA, EPA, and OSHA I hear about in the last days of the Bush term, the more depressed I get. Consider these recent stories: :
1) Melamine Mania: James E. McWilliams reports on an FDA utterly adrift in the growing melamine scandal:
When Canada voiced concern over milk-powder imports from the United States in late September, an FDA spokeswoman gave a dismissive response: “The public health crisis is in China.” When, over the next several weeks, the administration finally discovered melamine in baby formula sold here in the United States, its first order of business was to set up a conference call to warn the companies that produce 90 percent of the world’s milk powder—Abbott Labs, Mead Johnson, and Nestlé. But when it came to the general public, the FDA remained silent—at least until the Associated Press filed a Freedom of Information Act request for the test results and published the news in late November.
McWilliams proposes several legislative fixes that should be near the top of Congress’s agenda.
posted by Frank Pasquale
As the $700 billion bailout for banks falters, the US needs to be very careful about future investment programs. Though I’ve endorsed a broadband stimulus along the lines proposed by Yochai Benkler, there should be at least some window of opportunity for consumer groups and others to make demands of telcos in exchange for the money. For example, as Randall Stross wonders, what exactly is the profit margin on text messages?
Text messaging is a wonderful business to be in: about 2.5 trillion messages will have been sent from cellphones worldwide this year. . . . [T]ext messages are not just tiny; they are also free riders, tucked into what’s called a control channel, space reserved for operation of the wireless network. . . . The public assumes that the wireless carriers’ costs are far higher than they actually are, and profit margins are concealed by a heavy curtain. Senator Herb Kohl, Democrat of Wisconsin and the chairman of the Senate antitrust subcommittee, wanted to look behind the curtain [and has been stonewalled].
Srinivasan Keshav, a professor of computer science at the University of Waterloo, in Ontario, said: “Messages are small. Even though a trillion seems like a lot to carry, it isn’t.” Keshav, whose academic research received financial support from one of the four major American carriers, discovered just how secretive the carriers are when it comes to this business. Two years ago, when he requested information from his sponsor about its network operations in the past so that his students could study a real-world text-messaging network, he was turned down. He said the company liaison told him, “Even our own researchers are not permitted to see that data.”
Admittedly, cross-subsidization can be a good thing. If the text windfall is subsidizing rural or inner-city broadband, I might be happy to see it. But we deserve to know the full details of the inner workings of the telcos–especially if they want investment in a broadband rollout. Sadly, the FCC has done a terrible job making even its own inner workings transparent.
posted by Notre Dame Law Review
Jason Scott Johnston, 84 NOTRE DAME L. REV. 1
Jessica Erickson, 84 NOTRE DAME L. REV. 75
Michael Steven Green, 84 NOTRE DAME L. REV. 131
John B. Kirkwood & Robert H. Lande, 84 NOTRE DAME L. REV. 191
Adam N. Steinman, 84 NOTRE DAME L. REV. 245
Hannibal Travis, 84 NOTRE DAME L. REV. 331
Norman R. Williams, 84 NOTRE DAME L. REV. 409
James J. Ward, 84 NOTRE DAME L. REV. 471
posted by Notre Dame Law Review
Notre Dame Law Review, Volume 83, Issue 5 (July 2008)
Kurt T. Lash, 83 NOTRE DAME L. REV. 1889
Charles L. Barzun, 83 NOTRE DAME L. REV. 1957
Eric M. Fink, 83 NOTRE DAME L. REV. 2019
Toby J. Heytens, 83 NOTRE DAME L. REV. 2045
Jack Brill, 83 NOTRE DAME L. REV. 2105
Edward T. Highberger, 83 NOTRE DAME L. REV. 2141
Meaghan Hines, 83 NOTRE DAME L. REV. 2173
Alexis Zouhary, 83 NOTRE DAME L. REV. 2227
posted by Notre Dame Law Review
Notre Dame Law Review, Volume 83, Issue 4 (May 2008)
Antonin Scalia, 83 NOTRE DAME L. REV. 1417
Bradford R. Clark, 83 NOTRE DAME L. REV. 1421
William N. Eskridge, Jr., 83 NOTRE DAME L. REV. 1441
Elizabeth Garrett, 83 NOTRE DAME L. REV. 1495
John F. Manning, 83 NOTRE DAME L. REV. 1541
Peter L. Strauss, 83 NOTRE DAME L. REV. 1567
Carlos Manuel Vazquez, 83 NOTRE DAME L. REV. 1601
Ernest A. Young, 83 NOTRE DAME L. REV. 1639
Bradford R. Clark, 83 NOTRE DAME L. REV. 1681
Julie Marie Baworowsky, 83 NOTRE DAME L. REV. 1713
Emily J. Follas, 83 NOTRE DAME L. REV. 1779
Kendall W. Hannon, 83 NOTRE DAME L. REV. 1811
Peter M. Ladwein, 83 NOTRE DAME L. REV. 1847
posted by Frank Pasquale
The last remnants of British imperialism are still wreaking havoc today. The Canadian Governor-General’s bizarre proroguing of the Parliament there threatens to make a figurehead a kingmaker. More dangerously, tax havens like the Isle of Man, Guernsey, and Jersey cost governments worldwide billions of dollars of revenue annually:
Because of the secrecy surrounding the treasure islands, no one knows how much money they divert from developing countries. Christian Aid’s estimate – of $160 billion a year – is the lowest figure, though 60% greater than the international aid the poor world receives. The Pope suggests $255bn; the US research group Global Financial Integrity proposes $900bn. In all cases we’re talking about the means by which hundreds of thousands of lives could have been preserved in the world’s poorest countries. But Britain’s network of tax havens permits multinational companies, dodgy businessmen and corrupt leaders to snatch money from [tax authorities].
As governments face ever-greater fiscal responsibilities in the midst of crisis, many of those best able to shoulder the burden are AWOL. Even though “organised crime . . . depends on tax havens,” they persist. Why?
posted by Daniel Solove
Here’s a list of notable books about information privacy published in 2008. Pick up a few to help stimulate the economy, save the publishing business, and learn more about privacy:
A very informative account of those who work in the privacy advocacy community.
A great collection of essays, from a symposium at Stanford Law School. A bit dated — the symposium was held in 2003 — but still worth reading. I have a piece in the book discussing data security vulnerabilities and the law — originally penned back in 2003, so I can say “told ya so!”
The best and most comprehensive intellectual history of the Fourth Amendment ever written.
A contemporary version of Orwell’s 1984 — thought-provoking and engaging fiction, as usual from Doctorow.
December 27, 2008 at 1:54 pm Posted in: Articles and Books, Book Reviews, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (Law Enforcement), Privacy (National Security) Print This Post 6 Comments
posted by Brian Kalt
At his invaluable Pardon Power blog, Prof. Ruckman has done some very helpful reporting that, to my mind, strengthens Isaac Toussie’s case immensely. The professor and I have tangled over pardon revocability in the text and comments here and here. His latest post reveals the following:
1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”
2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.
3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.
4) Then, the DOJ issued a press release that informed the world (including Toussie) that the grants had been made.
5) There is no issue about whether Toussie accepted the pardon – he had asked for it and it was granted without conditions.
It is well worth noting that, when the OPA makes these phone calls, the OPA has never informed grantees that they “will be” pardoned “as soon as they get the individual warrant” (which may take weeks to arrive). The OPA always tell them they “have been” pardoned. No contingencies.
So far, the president’s argument has been that the pardons were still in some state of preparation–not yet a pardon, in essence–and thus could legally be halted. (Ruckman has labeled this argument foolish, and contended that pardons are revocable even when completed.)
Given that the facts Ruckman reports show that (1) the president signed a document saying he hereby gave a full and unconditional pardon to Toussie; (2) that that document was sealed; and (3) that the Office of the Pardon Attorney notified Toussie (or his counsel) that Toussie had been pardoned (not that he would be), I think it is fair to say that for all intents and purposes, this pardon had been signed, sealed, and delivered.
One might argue that Toussie hadn’t accepted the pardon, but I reject that conclusion given that he had gotten exactly what he applied for with no conditions attached (the offer was his, and acceptance was the president’s), and also given case law undermining the notion that pardons must be accepted. I also would be surprised if when Toussie or his counsel got the phone call, they didn’t accept it.
I do not agree with Ruckman that a pardon, once granted, can legally be revoked. But I do agree with him that the president’s argument in this case–that the Toussie pardon had not yet been granted–is foolish. I expect that there are a lot of people following this story whose thoughts paralleled mine. First, upon hearing that Toussie pardon had been revoked, I thought “what? you can’t revoke a pardon.” Then, upon hearing the claim that the pardon hadn’t been processed yet, I thought “well, maybe this wasn’t a pardon.” Now, upon hearing that it had been signed, sealed, delivered, and presumably accepted, I’m back to “what? you can’t revoke a pardon.” I hope that Toussie litigates this and that the court settles this once and for all.
Of course, there is still the matter of Ruckman’s argument that completed pardons can be revoked. His argument is backed up by examples that, while unlitigated and mostly old, are nevertheless numerous and undeniably there. (And, to Ruckman’s credit, they shoot down the callow media reports that Bush’s move was unprecedented.) If Toussie loses this case, that history will be why. But personally, for reasons I have posted already, I expect other arguments to prevail, and that the history to be relied upon by the dissenters, if any.
posted by Frank Pasquale
Three years ago health law scholar John Jacobi warned of “Dangerous Times for Medicaid.” At the time the main threats were ideologically driven; now state budget cuts are doing the damage. As Amy Goldstein notes in the WaPo, the situation is critical:
With revenue falling at the same time that more people are losing their jobs and private health coverage, states already have pared their programs and many are looking at deeper cuts for the coming year. Already, 19 states — including Maryland and Virginia — and the District of Columbia have lowered payments to hospitals and nursing homes, eliminated coverage for some treatments, and forced some recipients out of the insurance program completely.
It’s one more sad example of the procyclical nature of federalism here–states have less tax revenue during recessions, when need is greatest. No one should be surprised if more and more of the newly uninsured jobless, denied even basic dental care due to such cuts, fall into a “death spiral” of unemployment, disfiguring ailments, and a tendency to be underemployed due to such ailments.
PS: The WaPo has a nice Medicaid aggregation page.
posted by Frank Pasquale
Not all the spending deferred during the Great Recession will be missed. Cosmetic surgery sets up a rat race of positional competition for better appearance, with dubious objective benefits. Natasha Singer suggests that many may now be “putting vanity on hold:”
“In Orange County, where plastic surgery is a part of their culture, doctors told me business is down 30 to 40 percent,” said Thomas Seery, the president of realself.com, a site devoted to reviewing vanity-medicine procedures. “That tells me something is fundamentally changing there.”
Even a few celebrities, those early adopters of appearance technology, have started to deride the plasticized look that sometimes accompanies cosmetic interventions, a harbinger perhaps of a new climate of restraint in which overt augmentation seems like bad taste.
However, Rhonda Rundle (on the Wall Street Journal’s cosmetic surgery beat) suggests that those hooked on appearance enhancement may merely be scaling down, rather than breaking, the habit. Appearance competition can be vital to getting ahead–or merely staying in place:
posted by Deven Desai
Forbes reports that a Beverly Hills physician who removes human fat by liposuction uses the fat as fuel for two biodiesel SUVs (his Ford model and his girlfriend’s Navigator). Apparently, “A gallon of grease will get you about a gallon of fuel, and drivers can get about the same amount of mileage from fat fuel as they do from regular diesel, according to Jenna Higgins of the National Biodiesel Board.” The irony is almost as good as Fight Club where the miscreants use leftover human fat to create soap which they sell the same upper class folks that were the source of the fat (“about the soap] Tyler sold his soap to department stores at $20 a bar. Lord knows what they charged. It was beautiful.”).
Now the physician had a Web site (no longer up) on which he claimed that
The vast majority of my patients request that I use their fat for fuel–and I have more fat than I can use,” … Not only do they get to lose their love handles or chubby belly but they get to take part in saving the Earth.
Yet according to Forbes, it is illegal to use human medical waste to power vehicles. Really? We have a law about using human waste to power vehicles? What about the Moore case? That one seemed to say that human waste is just that waste, garbage to which the patient had no claim (although there was a nod to proper disposal of medical waste). In addition, could it be that a doctor could take one’s cells etc and develop new drugs but the law would prevent using one’s fat to fuel a car? Why?
The article notes that an attorney has claimed the doctor in this case “removed too much fat from clients and left them disfigured” and that several others have complained to the state. So is this a conversion claim and a public health question. Maybe conflict of interest? All of them? I am not sure what the policy behind this one is. Most likely there is not a specific ban on this use of human medical waste but rather a general prohibition on use of human medical waste. Nonetheless, the oddity and irony of this one makes me wonder whether a patient should be able to negotiate to take home their fat or get a discount on the procedure for letting a doctor use the by-product as he or she wishes.
posted by Frank Pasquale
Just apply economics to economists. The honchos in the profession (Paul Krugman excepted) said everything was fine. Agreeing with the honchos will never get you in trouble. You will never lose your job or even miss a promotion because you made the same mistake as all the leading lights in the profession.*
On the other hand, if you go against the honchos and end up being wrong, well you should be prepared to be sent to oblivion. You are obviously a raving lunatic who has no business being taken seriously as an economist. Even when you end being right against the honchos you can’t count on any great reward, since the honchos so control the profession and the media that “nobody could have seen” will be repeated at least frequently as the fact that some people did see.
Baker is often seen as a man of the left, but the libertarian right offered its own predictions of collapse. Peter Schiff, an avowed adherent to the Austrian school of economics, battled with various hype-mongers on television. I heard a great interview with him where he basically asked: what is the real economic foundation of American prosperity? what are we producing that other people want? Like Kevin Phillips, he mocked the dreams of Rubinomics, helpfully summarized by Madison Powers here:
posted by Brian Kalt
Following up on my earlier post, I have some more thoughts on the Toussie pardon. I originally cited some thoughts by Michael Froomkin. Froomkin has a follow-up post in which he, in my opinion, gives up too easily.
The White House seems to be arguing that a pardon needs to be signed, sealed, and delivered before it is effective. I have already explained why I think that is wrong: signed, yes; sealed, probably, whatever that means; delivered, no. But regardless of all that, as Ellen Podgor points out, Toussie has a good argument that the pardon actually was signed, sealed and delivered. The DOJ press release on the 23rd said: “On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of sentence to one individual.” It didn’t say that Bush started the process of pardoning them. It said he pardoned them, because that’s what everyone understood was happening. Without knowing exactly how these things work, I can’t assume that Toussie got a phone call, formally communicated his acceptance, or what, but maybe he did. In any case, there was a whole day there in which he and the rest of the word knew that he had been pardoned.
The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn’t purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”
Indeed, all of the commentary has referred to this as a pardon that was issued and then revoked. But pardons can’t be revoked. So the White House needs another theory. Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn’t hold up. First of all, it describes the president as accepting the recommendation to pardon Toussie. Then, it concludes by describing how the president is going to now have the Office of the Pardon Attorney review Toussie’s case, because he “believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.” But the president already had that opportunity, and chose not to take it. If President Bush believed that the OPA should have had a chance to review, say, the Marc Rich case, then he could have set up his OPA process that way. But surely, if he thought he could reach back and hold up the Rich pardon the way he did the Toussie pardon, he would have done so.
In any case, if I were Toussie (the only person with standing to challege the president’s action here), I would fight this. I think that it is pretty unlikely that Bush is going to re-do the pardon. Nevertheless, there is no point litigating the issue until after January 20; as long as the OPA is sitting on the question, there is a ripeness issue that would not be worth adding to an already complicated situation.
But once President Obama takes office, one can assume the application will be rejected, if it hadn’t been already. Then Obama’s administration will have to defend the revocability of the pardon. One might expect a spirited defense, under the old “let’s not cede any authority we may have” doctrine. Then again, Obama could argue in favor of the president’s power to issue pardons that take effect immediately, rather than ceding that power (and, ironically, watering down the unitary executive theory) as Bush has purported to do here. Further, the Obama Administration could make the more political argument that do-overs raise political convenience over the care and diligence that the Constitution expects of the president here.
To be sure, there is a Gilded Age history of revoking pardons that the initial press reports missed. But the more modern precedents on the nature of the pardon power, not to mention modern communications, suggest to me that Toussie has a good case here.
posted by Sarah Waldeck
The New York Times has reported on the controversy surrounding the dismissal of Donald Guter, who had been dean of the Duquesne Law School for three years. The story also has been covered on Law.com and other legal blogs. One detail from the reports is particularly striking: under Guter’s leadership, bar passage rates increased from 68 to 97 percent.
This seems like an extraordinary increase for a three-year time period. If anyone wants to explain how Duquesne managed to do it, I’d be interested. (Or if this kind of increase is more ordinary than I think, I’d appreciate learning that as well.)
posted by Danielle Citron
News from Underground has a priceless posting comparing the steps states take to ensure the accuracy and security of slot machines and e-voting machines. Here are some highlights. Nevada requires vendors of slot machines to provide it access to the machines’ software. By contrast, for most states, the source code for e-voting machines remains safely in the hands of vendors with no right of access provided to election officials or the public. A Nevada agency certifies slot machines, and the public has an opportunity to comment on that certification process. Depressingly, a select number of private companies certify e-voting machines at the vendor’s expense and the certification process is deemed a trade secret. Yes, even the certification process is hidden from public view.
The bottom line: the gaming business is subject to greater transparency and accountability than our voting process. It seems wrong, and a bit shameful, to associate a greater sense of responsibility and accuracy to gambling than voting. We care more about money earned through somewhat licentious means than our fundamental right to pick our elected officials in an accurate and secure manner. That seems to be where we are right now, but I have my hopes for the future. More to come on that in 2009. For now, happy holidays CoOp readers!
posted by Brian Kalt
It seems to me that this is not constitutional. Once issued, a pardon is a pardon. That’s that. The president has the power to lift criminal consequences from someone, but not to unilaterally impose them, which a pardon revocation does.
I can’t find all of the details here. Perhaps President Bush announced that he would be issuing the pardons, but did not actually issue them in the requisite official form. But it sure seems like he signed off on them. One other possibility is that the pardon was made conditional on some sort of follow-up by Toussie, which he had not performed. But I see no reporting on that either. It just looks like the president issued a pardon and then un-issued it.
President Bush actually referred the matter to the Office of the Pardon Attorney for further consideration, so it is possible that Toussie will get his pardon back. One can imagine that Toussie and his lawyers might not want to challenge the president’s revocation if they still hope to get something from him. Since Toussie is probably the only one with standing to argue the constitutional point, though, the only way to answer the revocability question is for Toussie to challenge the president’s action in court. From the CNN story, though, it doesn’t sound like that is going to happen.
Strange days indeed.
UPDATE: According to the official White House statement, President Bush did not actually pardon Toussie, but only delivered a Master Warrant of Clemency to the Office of the Pardon Attorney. This just instructs the pardon attorney to execute and deliver the pardons. So it wasn’t final.
Marbury v. Madison famously held that a presidential appointment need not be delivered before it is effective, but as this helpful blogger notes, pardons are different from appointments in the Supreme Court’s eyes:
There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall’s in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official’s commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:
A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’
Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President’s Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:
President Andrew Johnson’s offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy’s agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. . . . Indeed, President George W. Bush’s administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.
This takes a good deal of the wind out of the sails of the arguments that Toussie might make. But not all of the wind. Wilson dealt with someone who didn’t want to accept the partial pardon the president had given him; the Court let him refuse it (a conclusion that I have questioned elsewhere in light of subsequent precedent, but let’s accept it arguendo). DePuy dealt with someone who had a conditional pardon, which condition he had not yet fulfilled when the pardon was revoked.
In Toussie’s case, he wanted the pardon. He had applied for it and (I think) gotten everything he had asked for. Wilson is thus inapt. There do not appear to have been any conditions placed on Toussie’s pardon; DePuy therefore does not control. Toussie’s pardon thus seems to be final in a way that Wilson’s and DePuy’s pardons were not.
However, Marbury adds another wrinkle. A commission, Chief Justice Marshall wrote, does not to be delivered to be valid, but it does have to be sealed (in that case by the secretary of state). Here, if the president sent a sealed document to the pardon attorney, ordering him to deliver it to Toussie; or if the president sent an unsealed document to the pardon attorney, who then sealed it but didn’t deliver it, Toussie still has a good argument that the pardon is final. If the document was not yet sealed when it was revoked, his case is much weaker.
posted by Dave Hoffman
On behalf of Concurring Opinions (LLC!), I want to wish you happy holidays.
We haven’t had a roundup of our readers for a long time. If you want, feel free to use this thread to tell us something about yourself, and what you are up to this holiday season.
I’ll start. I’m coding for this. I’m also grading. So, basically, I’m in excel hell, and can’t manage more complex problems than whether to put a 1 or a 0 in a cell on a spreadsheet. (Thus, the lack of blogging.)
How about you?