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Author: Gerard Magliocca


Impeachment Proceedings

Here’s a prediction. The fallout from the release of the OLC Memos will be an impeachment inquiry into Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, who signed the 2002 memo authorizing waterboarding and other enhanced interrogation techniques. I am not advocating Judge Bybee’s impeachment. I am merely saying that this where the political train is heading.

Put bluntly, there is no appetite in Washington to prosecute those involved in alleged torture. Every word and gesture from the President indicates that he’d like the problem to go away and leave him alone. Moreover, there is understandable unease about setting a precedent whereby officials from one Administration throw members of the prior one (of a different party) in jail over an issue that is partly based on policy disagreements. On the other hand, a decision not to prosecute those who formulated the interrogation regime leaves them unaccountable for their actions. What is the solution?

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The OLC Memos

I take up this topic with some hesitation because, to be honest, I would rather talk about something less depressing. Furthermore, I am not sure that I have anything to add to what has already been said about our treatment of high-level detainees (take a look at Sonja’s post below, for example). Nevertheless, I feel compelled to say something following the release of these memos. Putting aside the policy aspects of what was under consideration (if that is possible), three things stand out to me.

First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: (1) torture requires the infliction of severe pain or suffering; (2) when our trainees were subjected to these techniques they did not suffer severe pain or suffering; therefore (3) using this techniques on detainees is not torture. The problem is that point #3 does not follow from #2. As the first Bradbury memo concedes, our troops know that they are just undergoing training and will not be harmed when the techniques are applied to them. The detainees have no such assurance. This is a pretty important distinction, but even after this concession the memos continued to use our training experience to evaluate the severity of the interrogation techniques.

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A Supreme Court Vacancy

Above the Law is reporting that Justice Souter has not hired clerks for the upcoming Term. While he is typically the last Justice to hire clerks, this is late even for him. This fact, combined with what I’m hearing from other people who probably know what they are talking about, convinces me that unless something extraordinary occurs in the next two months, he is retiring in June.

This means that breathless speculation about a successor can begin. (It’s never too early for that, right?) I’d be especially interested in what people think about Judge Kim Wardlaw (of the Ninth Circuit). While I hear her name mentioned as a possibility, I must confess that I know nothing about her.


Analogous or Not?

Suppose that a family enters an area of land when they have no legal right to do so. They stay and live there for years using the property for lawful purposes (apart from their continuing trespass). At some point, the actual owner or authority returns and tries to kick them out.

Am I describing a case of adverse possession (where the squatter may well get title) or a case of illegal immigration (where deportation is the result)? This comparison raises some interesting questions, though the idea is not original to me. See Timothy J. Lukas & Minh T Hoang, “Open and Notorious: Adverse Possession and Immigration Reform,” 27 Wash. U. J. L. Pol’y 123 (2008); Monica Gomez, “Immigration by Adverse Possession: Common Law Amnesty For Long-Residing Illegal Immigrants in the United States,” 22 Geo. Immigr. L. J. 105 (2007).

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Incorporation and the Second Amendment

In the next year or two, the Supreme Court will probably address the question of whether the Second Amendment applies to the States. To shed some light on this issue, I examined why the incorporation of the Bill of Rights was rejected (with the exception of the Takings Clause) around 1900. The result is an article that will be coming out in Minnesota called Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? Let me briefly summarize its contents.

First, the Slaughterhouse opinion is not the culprit. Others have pointed out that that this decision did not reject incorporation in its holding and was ambiguous on the issue in its dicta. What’s new about my research is that I looked at every case that cited Slaughterhouse from 1873 to 1900 and found that only one (a state opinion from Utah) read the decision as hostile to incorporation. No federal decision advanced that interpretation until the Court itself took that step in 1900.

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Separation of Press and State

Times are tough in the newspaper industry. Its business model is under pressure from the Internet, as more and more people get their news and look for classifieds online. Throw in the sharp downtown in the economy, and the result is that several major papers have folded or filed for Chapter 11.

Senator Ben Cardin wants to stop the bleeding through proposed legislation that would allow papers to become 501(c)(3) tax-exempt organizations. This would give them a competitive advantage against other sources of advertising, and, in effect, be a subsidy. In exchange, newspapers could no longer endorse candidates on the editorial page or through their news coverage.

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Minnesota Senate Race

Like a documentary by Ken Burns, the Minnesota Senate race goes on and on. Al Franken’s lead increased after the contest trial as more disputed ballots were counted. Norm Coleman will now appeal to the State Supreme Court. In the event that this fails to change the outcome, some Coleman supporters are urging him to file a federal suit invoking Bush v. Gore as authority for the proposition that the use of different standards within each Minnesota county to count ballots is unconstitutional.

Of course, the Senate could end this saga today. Article One, Section Five of the Constitution makes the Senate “the Judge of the Elections, Returns, and Qualifications of its own Members.” If it seats Franken, that judgment is final. It is likely that he will be seated once Coleman exhausts his state remedies (unless the GOP filibusters that motion). In that case, any federal suit by Coleman should be dismissed as raising a political question. There is no precedent for a court ordering Congress to remove a seated member, and no such precedent should be created now.


John Bingham


After I finish my book on Populist and Progressive era constitutionalism, my next book will be a biography of John Bingham (1815-1900), the principal drafter of Section One of the Fourteenth Amendment. It’s a bit daunting, as I’ve never written a biography before and much of the relevant material is scattered around the country. Nevertheless, given his importance (Hugo Black called Bingham the “James Madison of the Fourteenth Amendment”), he really deserves a full-fledged biography (not to mention an HBO miniseries, if anyone wants to buy the rights from me). There was one written by Erving Beauregard about twenty years ago, but it is pretty obscure and was based on an inaccurate view of Bingham’s role that dates back to Charles Fairman’s flawed scholarship in the 1940s.

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Filibuster Reform

The latest kerfuffle in Washington involves the threat of a filibuster against the nominations of Dawn Johnsen (to head the OLC) and Harold Koh (as the State Department Legal Advisor). My view is that every filibuster of a nominee on the executive calendar, with the possible exception of a Supreme Court Justice, is wrong. It was wrong when the Democrats did it to Miguel Estrada and President Bush’s other judicial nominees, and it would be equally unfair if done to Johnsen and Koh.

The problem, I think, is that the costs of a filibuster (on the nominees and on democratic values) are not fully internalized by the Senators engaged in that practice. In other words, it is now too easy to mount a filibuster. I am not suggesting that filibusters be abolished or that the number of Senators required to invoke cloture be reduced. A little history will help explain my approach.

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Presidential Right of Publicity

There was an article yesterday about the company that sells the “Chia Obama,” which is like the “Chia Pet” that you slather with seeds and then water to make a boring ceramic figure look slightly less boring. (As I tell my intellectual property students, not all lucrative inventions are complex. Go ask the inventor of the pet rock.) The news was the Chia Obama was pulled from stores because the firm concluded that the product was inappropriate for its image.

This raises a broader question, which is to what extent, if at all, can the President control the use of his image for commercial purposes. Traditionally, politicians have operated on the assumption that there is no such thing as overexposure. Teddy Roosevelt was famous for delighting in the appearance of his likeness on all sorts of goods, culminating with the borrowing of his name for the teddy bear. Nevertheless, a spokesperson for the Obama Administration told Bloomberg News in February: “Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president.”

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