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Woman punches cop,

A woman ran into the Longworth House Office Building Yesterday, avoiding a metal detector and ignoring a member of the capitol police who shouted after her. When the cop grabbed her, she turned around and punched him. The cop will be filling charges - but not just yet: he has to wait until Congress adjourns first, because the woman who punched him was a member of the House, Rep. Cynthia McKinney (D-Ga.).

Members of Congress "shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same," U.S. Const., Art.I §6.

Story | alternate.

I have to admit that I just can't fathom what goes through a person's head - there is a cop chasing after you yelling "stop," at what point does the appropriate response become to turn around and punch him?

Hat tip: Steve.

Update: apparently, this has happened before, and this isn't the first time McKinney has played the race card.

A reason not to privatize the BMV fails to appear

One of the more intemperate posts I've floated here (see The BMV must die, 8/31/05) stemmed from frustration at the astonishing incompetence of the Bureau of Motor Vehicles, in response to which, I did what I imagine all Republicans do when confronted with government ineptitude: declared that it ought to be privatized.

Well, yesterday, I had to swing by the BMV to renew my plates; they had sent me a letter saying how much I owed, so I assumed it was a simple matter of walking in and giving them the money. Not so: apparently, they needed to recreate the invoice in their computer system, and the computer system refused to spit out the same number. Sympathizing, I told the representative the story that led to my previous intemperate post about the BMV, to which the representative replied "oh, privatizing the BMV would be the worst thing that could be done!" Marvellous, I thought! I don't mind being wrong, so I am always happy to be corrected, and thought that here was a chance for someone to tell me the crucial argument I'd overlooked in rashly calling for privatizing the BMV. And here it is, the argument against privatizing the BMV: "we'd all be working for minimum wage, and we'd be lucky if we got any benefits at all."

Big government is a self-sustaining philosophy; the more people work for the government, the more people will (perfectly understandably) vote against changes that they think might jeopardize their job. None-the-less, the Indiana Bureau of Motor Vehicles employs 1,657 people, n1; there are 5,210,000 registered drivers in Indiana, n2. I don't want to sound callous, but even if one accepts the (surely questionable) assertion that privatization would necessarily be detrimental to the interests of the BMV staff, and sets aside the interest that even non-drivers have in the efficient operation of government, this is not a hard equation to balance.

Is this really it? Is there really no better argument against privatization of this notoriously inefficient chunk of government than reflexive fear of change? If so, why hasn't it been done yet?

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Footnotes:



Scalia, recusal and Hamdan

This is a delayed reaction since I've been on a short spring vacation (whistlestop tour of a few places in Alabama, Georgia, Tennessee and Kentucky), but there is some fuss - see reporting here that Scalia should recuse in Hamdan v. Rumsfeld, in relation to which, Ann Althouse links to a Ron Cass piece, Stalking Scalia. Cass suggests that, having lost the war for the legislatures, and as a consequence, increasingly (but subject to this qualifier) losing the courts as avenues for pursuing their policy, the new game is to ask Judges to recuse themselves:

The game now is to find a way of making it seem that Scalia's personal life and conduct commit him to positions on important legal issues in a way that interferes with his ability to decide matters impartially . . . because Scalia is the leading voice for a set of legal propositions that run counter to the political, social, and constitutional agenda of the dominant voices in almost every major element of America's Speaking elites.
This may be a new game, but it is being played on an old pitch. A year or two back, I read an article – R. Neuman, Conflicts of interest in Bush v. Gore: Did some justices vote illegally? - which, in scrupulously non-partisan terms (or at least, a good impression thereof), argued that two Justices in Bush v. Gore, n1, should have recused themselves: “both of them violated the federal judicial conflict-of-interest statute and the Constitutional due process clause by participating in Bush v. Gore.” This was in the Georgetown Journal of Legal Ethics – hardly National Review – and so it will come as no surprise whatsoever that the two who the author thought should have recused happened to be on the same side! And guess what - it wasn't Gore's side! n2. That's right, by sheer mind-boggling co-incidence, two critical votes in Bush were actually void. “[E]ven if it lacked a quorum [as a result of recusals by Scalia and O'Connor], the Court would have been able to decide Bush v. Gore,” Neuman notes, before deadpanning, “although the result would have been different.”

Like Mark Tushnet's argument a few years ago that any 5-4 in which Thomas cast the deciding vote should be considered to be no precedent, n3, this ridiculous – and, as pointed out by Cass, supra, baldly short-term opportunistic – wrangling over recusal threatens to undermine the legitimacy of all Supreme Court precedent. There is simply no limitation on the principle: if a 5-4 decision where Thomas cast the deciding vote can be ignored because Mark thinks there was something objectionable about Justice Thomas' confirmation hearings, why can't I say that any 5-4 where Kennedy casts the deciding vote is void, because Kennedy only got his seat after the Bork hearings? For just how long (and for how many cases where he cast a decisive vote) was Justice Douglas senile before he was finally pushed off the bench? Can I get around some of the Warren Court cases I don't like on this theory? For that matter, one could make the argument that you should strike out the entirety of the Lawrence v. Texas, n4, majority for violating the terms of their oath of office, which – agree with us or not – quite a lot of people think that opinion was. Even if you don't agree with these examples, you'll surely see where this logic will get us: if we play the "Justice X should have recused / never been on the Court in the first place" game, someone who doesn't like the decision will always be able to find something to use in validating their refusal to accept the result. There is no real reason why the various reasons recited by Neuman as to why Justice Thomas might have been a recusal candidate in Bush would not “create an appearance of partiality that disqualified Justice Thomas from participating in Bush,” and ditto regarding the Chief, other than because Neuman says so – perhaps because the name of the game would be too obvious if he published an article saying that every member of the Bush majority except Tony Kennedy should have recused themselves.

Which brings us to Hamdan. The argument goes like this: “Scalia gave a speech in which he indicated his opinion that the U.S. Constitution gives rights to American citizens the world over and persons in America, not to non-citizens in non-America, and that means he said how he might rule in the case, so he should recuse.” That, believe it or not, is the length and breadth of the argument. Those jumping on this bandwagon point to Scalia's recusal in Newdow, n5 (see http://supreme.lp.findlaw.com/supreme_court/briefs/02-1624/03-7.recuse.pdf) . In my view, this is a ridiculous standard; Scalia should not have recused himself in Newdow - that is, not only didn't have to, but affirmatively should not have - and he should not recuse himself in Hamdan.

28 U.S.C. §455(b) sets out a various concrete circumstances in which a Judge or Justice should recuse, but prefaces it with a much broader command, §455(a): “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Those who are playing the recusal game – and this includes Newdow – are playing on this phrasing, and sometimes it works: “[R]ecusal is the course I must take—and will take—when, on the basis of established principles and practices, I have said or done something which requires that course. I have recused for such a reason this very Term [in Newdow],” n6. This question of reasonableness in the appearance of impartiality is what is also played on by Neuman, supra, and is what ultimately trips him up, as I explained previously. But in any event, those who are now rushing to attempt to hoist Nino by his own petard, ably represented here by Republican Party of Minnesota v. White, n7, would do well to follow the most basic rule of statutory interpretation: read on! Those reading on in White will find this:
It is perhaps possible to use the term “impartiality” in the judicial context . . . to mean lack of preconception in favor of or against a particular legal view. This sort of impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal chance to persuade the court on the legal points in their case . . . A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason . . . [I]t is virtually impossible to find a judge who does not have preconceptions about the law . . . [E]ven if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” (n8)
If impartiality is going to be reduced to the alternative version, n9, and if the test is "whether an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about a judge's impartiality," n10, our Fearless Leader and Brother Sam are going to hear Gonzales v. Carhart alone next term. As a commenter at SCOTUSblog pointed out, there can surely be no serious argument that there is any doubt about Justice Scalia's (or Justice Ginsburg's) opinion as to the existence, or lack thereof, of a constitutional right to an abortion:
Do the[] broad statements [in Scalia's Casey dissent] preclude his participation in future abortion cases? Of course not. And this is because, whether he is dissenting in an opinion whose primary issue may again be before him or whether he makes similarly broad statements as to how his judicial philosophy may impact other areas of the law during a lecture, he is not commenting on the specific facts of a pending case.
Is this wrong? Should Scalia – and for that matter, every other member of the Court except the Chief Justice – have recused themselves from Ayotte? Another example: Justices Brennan and Marshall spent most of the 1970s and all of the 1980s believing that the death penalty was per se unconstitutional; the endpages of the U.S. Reports from that period are littered with dissents from denial of cert that gravely intone that the dissent is offered because “[a]dhering to [the] view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 , 2950 (1976) (BRENNAN, J., dissenting), I would grant the stay application and the petition for certiorari and would vacate the death sentence in this case. ” Their votes could scarcely be considered unpredictable in any capital case that came before the court. Should they have recused themselves from every capital case before the court, since their mind was made up without reference to the particulars of a given case, long before briefing and argument? And, if the memory serves (see recounting here, the incident which resulted in Scalia's recusal in that case said little that Scalia had not already said in his Lee v. Weisman, n11, dissent, a dissent which I refuse to believe that a partially educated soul could read and leave with any doubt that Scalia doesn't believe that the pledge of allegiance is unconstitutional.

In my view, a justice of the Supreme Court should recuse themselves in circumstances meeting §455(b): when they personally stand to gain from the outcome, or when they cannot be impartial towards the litigants as opposed to the body of law (that is, if Michael Newdow had killed Scalia's cat, it might have been reasonable to ask Scalia to recuse, but not just because Newdow brought up a legal point on which Scalia had known opinions), or in extraordinary cases (for example, our Fearless Leader's Hamdan recusal, wherein to sit on the case, he would have to review a judgement in a case he had participated in on the lower court). Justice Scalia was absolutely right to hear Hamdan, and in my view, should have heard Newdow too.

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Footnotes:
n1. Bush v. Gore, 531 U.S. 1046 (2000).

n2. Neuman actually considers arguments that four of the Bush majority should have stepped asside: all of them except Kennedy.

n3. See M. Tushnet, Clarence Thomas: The Constitutional Problems, 63 Geo. Wash. L. Rev 466 (1995), but see M. Tushnet, A COURT DIVIDED at 71.

n4. Lawrence v. Texas, 539 U.S. 558 (2003).

n5. Elk Grove v. Newdow, 542 U.S. 1 (2004).

n6. Cheney v. United States Dist. Court for D.C., memoranda of Scalia, J., at 4. But see http://beldar.blogs.com/beldarblog/2003/10/scalia_was_righ.html (arguing that Scalia's decision was probably prompted by Canon 3A(6)).

n7. Republican Party of Minnesota v. White, 536 U.S. 765, 777 (2002).

n8. Id. at 777 (quoting Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion of Rehnquist, J.).

n9. Those who urge the broader interpretation are being disingenuous if they seek to characterize Hamdan as the big non-recusal blockbuster of the term. One has to ask: why these people making a fuss in this case said not a word about the impropriety of Justice Ginsburg's failure to recuse herself from a case in which her husband was a party to the litigation, per §455(b)(5). Marty Ginsburg works at Georgetown, who were a part of the Forum for Academic & Institutional Rights, a.k.a. “FAIR”. I'm not saying Ginsburg shouldn't have heard FAIR v. Rumsfeld, but I am saying that you can't have it both ways. You can't be a champion of recusal in even the most marginal circumstances when it's someone you don't agree with who you want to recuse, and then give a free pass to someone else because you presume that they're going to rule your way. Nobody said anything about Ginsburg recusing herself, because all the people who yell that mean ol' Nino should recuse himself in practically every case thought that Ginsburg would rule their way in FAIR. As far as I can see, they are failing to exhibit the same restraint in Hamdan with regards to Scalia not because they have become overnight converts to excessive zealotry where judicial ethics are concerned, but because – as pointed out by Cass, supra – they simply don't like the way they assume he will rule.

n10. Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988); see Neuman, supra, at n.41 and accompanying text.

n11. Lee v. Weisman, , 505 U.S. 577 (1992).


Added:
"I would disqualify myself in any case in which I believe my connection with one of the litigants, or any other circumstances, would cause my judgment to be distorted in favor of one of the parties. I would further disqualify myself if the situation arose in which even though my judgment would not be distorted, a reasonable person would believe that my judgment would be distorted. That does not mean anyone in the world but a reasonable person."
Scalia, testimony on being nominated to the D.C. Circuit, op. cit. Supreme Court hearings 44

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Post facto: For more comments from me on this subject, see Scalia and Hamdan, 4/6/06. Also, a former Scalia clerk is always welcome at this party, even when arriving late: see Scalia and recusal: a clerk weighs in, 4/25/2006.

A return to a pre-civil war Parliament?

Via Centerfield comes this story. The first instinct is to think that the columnist is exaggerating; a glance at the actual bill - coyly titled the "Legislative and Regulatory Reform Bill" - proves understatement, if anything. Under the proposed law, Parliament would (in practical effect) be relegated to a post facto veto over positive legislation promulgated by the executive branch across a broad swathe of legislation. I am mapping out a more substantial critique even as we speak; along with an essay on the confrontation clause and construction (relating to an Althouse comment thread), this means that there are now two "PDFcasts" (see discussion in cover posts for Finding compromise on abortion, 2/8/2006 and The supremacy clause, nullification and bad precedent, 1/10/2006) outstanding, which I hope to post this weekend.

Update: My draft essay on the LRRB, I think they’re turning Portuguese: The stealthy emasculation of the royal prerogative and the expansion of executive power in Britain, is available here. It remains subject to revision.

Post facto: More materials here.

Where tax money goes

A fascinating graphic depicting discretionary spending in the 2004 budget. Hat tip: Dan Solove.

Hitchens on the Iraq war

I've mentioned before that I strongly dislike Chris Hitchens (I'm not a big fan of militant atheism, and Hitchens displays that and any number of other unlikable characteristics), but I do admit that this is pretty good.

Spam

Advance notice: I Respectfully Dissent - or particularly the comments section thereof - may be a little up and down tommorow evening while I write and test some new code to deal with the spam that's been appearing of late. I originally wrote what I assumed was a fairly good mechanism for stopping all that, but evidently I was wrong, so take two will invisibly appear tommorow.

Update: temporary fix in place.

Update 2: when you comment, you will now need to declare your allegiance to the species. Hopefully, this method - also seen at Becker-Posner - is both effective and at least marginally less retarted than the "type these random numbers" thing seen at blogspot etc.

The most incredible thing I've read all year

From Roger Waters Online:

Roger Waters has told Italian journalists he may well play again with Pink Floyd . . . "Playing again together at Live 8, doing the old songs, was very moving. For over 20 years David and I maintained extreme positions but now I realise that my behavior was very childish. As in all things one has to find common ground, meet halfway. That's why I can say today that you never know, it could happen."
:o

And again:

:o

To nail my colors to the mast: Pink Floyd needs Roger Waters a little more than Waters needs Pink Floyd, as a brief comparison of Amused to Death and The Division Bell effortlessly demonstrates (I should rephrase: The Division Bell is pretty good, but Amused to Death is one of the best albums of the 1990s). But there has always been something lacking from Roger's solo albums, and I don't just mean David Gilmour; there is a feel that Nick Mason and Richard Wright bring to albums, and you can easily hear as much listening to the Wright-less The Final Cut. I haven't yet yeard Gilmour's new solo album; I imagine it will be much like his last solo effort, A Momentary Lapse of Reason (I don't care what anyone says, that's a good album, but it ain't a Floyd album), which is to say, a patchy mix of inspiration of just okay. Likewise, I greatly look forward to Roger's new album later this year or early next, and I don't want for an instant to denigrate the talents of anyone in Roger's current band (Graham Broad, Jon Carin, Andy Wallace and Andy Fairweather-Lowe are great, and I love Katie Kissoon's singing), but the prospect of the four of the Floyd doing some work together is tantalizing stuff.

Our Fearless Leader's Reagan Library speech.

Ann Althouse blogged about our Fearless Leader's first speech since becoming, well, our Fearless Leader. Today, ConfirmThem provides us with the opportunity to say go to tape.

I've got to be honest, I had - and have - well-documented worries about Chief Justice Roberts. But to watch him speaking, I've got to be honest, I start to understand why Orin Kerr freely admits to having a man-crush, and why Althouse - despite (hopefully) immense philosophical differences with Roberts is so fond of him. The man is undeniably charming, funny and painfully (and unselfconciously) intelligent. I'm impressed.

Intellectual isolation

Here is "The Swanky Conservative" with a post adding notes to this post by Austin Bay, about intellectual isolation in the arabic world. Great stuff.

End of the Tomcat Era

Navy Newstand reports that:

The “Tomcatters” of Strike Fighter Squadron (VF) 31 and the “Black Lions” of VF-213 arrived at Naval Air Station Oceana March 10, ending their six-month deployment with Carrier Air Wing (CVW) 8 embarked on the aircraft carrier USS Theodore Roosevelt (CVN 71), and closing the book on the Tomcat as an asset in the Navy’s war fighting arsenal . . . VF-31 and 213’s “fly-off” marked the last operational flight of the F-14D Tomcat and the begining of the squadrons’ transition to the F/A-18 E/F Super Hornet.
I think the best epitaph is provided by Lt. Chris Rattigan: "[the F-14] is one of the greatest fighter planes in history . . . When you think of naval aviation, you think of the Tomcat." That's exactly right. I have no doubt that the F/A-18 is more capable and cheaper to maintain (I have the luxury of commenting from the cosy distance of not actually having to fly either of them), but it seems unlikely to capture that iconic status as emblems of raw US military power that the F-14 and the Nimitz-class carriers attained. Like Rattigan said - you think of naval aviation, you envision Tomcat.

More cheerleading for Judge Sykes

In comments below, JLR asks about the prospects of a Sykes nomination or a Mahoney nomination. I don't know a great deal about Mahoney (I've heard good things and bad things, but the main concern appears to be a Roberts-like lack of paper trail, and as I've previously - and probably prematurely - averred, Justice Alito's confirmation indicated that "the era of the Stealth nominee is over"), so I will focus on the former.

I think it safe to say that there simply is not a perfect candidate, from my perspective; you'd have to find a mix of the best qualities of Black, Scalia, Roberts and Kozinski, and even then I have no doubt I'd find something to nitpick about. Heck, you could nominate me and I'd take to the pages of this blog to bitch about the nominee's lack of experience and general lack of qualifications for the job! But anyway, with that having been said, I continue to think that Judge Sykes is in the top tier of possible nominees, for reasons I elaborated on here and here.

To be sure, there are reasons to be concerned with any nominee, and Sykes is no exception; there are subject areas which are important to me on which Sykes simply has no record, and ConfirmThem's Andrew Hyman has pointed out, reasonably enough, that Sykes' dissent in Wisconsin v. Oakley cannot be reconciled with my view (or what I take to be that of Our Hero, see Troxel v. Granville, 530 U.S. 57 (2000) at 91) (Scalia, dissenting) of the status of unenumerated rights and judicial power to enforce natural law. But Oakley was written six years ago, and in any instance, Sykes could plausibly claim that it was premised on her application of standards required by Zablocki v. Redhail, 434 U.S. 374 (1978).

All told, I am quite enthusiastic about the prospect of a Sykes nomination. Furthermore, given the political realities (the next nominee, inescapably, cannot be a white male; it may be pandering, it may be stupid, but it is the reality, and given that we have a good number of perfectly acceptable non-white-male candidates available, not really a problem), I am actually quite hopefull that she may well be the nominee, and in this media-driven age, it certainly doesn't hurt that she's not only a a she, but a very attractive and apparently debonair she, at that, which may well make it even harder for the left to villify her, as it did with our Fearless Leader.

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Update: By sheer coincidence, Ann Althouse links to a Sykes op/ed from as recently as yesterday.

Update 2: The story linked above is highlights only; the full speech can be found here (PDF warning). I would suggest that reading the full version should be preferred to reading the abbreviated op/ed; you just can't cram a twenty page speech into a half-page op/ed, no matter how hard you try, and what seems disjointed and under-reasoned in the op/ed makes a great deal more sense in expanded context.

Update 3: The American Spectator weighs in on the Sykes speech here.

Anti-islamic feeling on the rise

The WaPo reports:

[A] poll found that nearly half of Americans -- 46 percent -- have a negative view of Islam, seven percentage points higher than in the tense months after the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon, when Muslims were often targeted for violence.
At the risk of turning into DailyKos - well, duh! I think most people were and are smart enough to separate islam from Al Queda, just as most people are smart enough not to see Fred Phelps as being representative of Christianity. People understood that islam was not responsible for 9/11, and they very properly conflated it with terrorists, not muslims. But in the last couple of months, a very large number of muslims have taken to the streets to demonstrate how closed-minded, intolerant and frankly gullible they are, in light of some frankly not-that-offensive cartoons in a minor newspaper in a small European country; is it really that much of a shock that this has negatively affected people's opinion?

Now, one of the first calls I made on September 11th was to an acquaintance from Lebanon, because my immediate thought was "oh crap, this is going to get pinned on muslims and islam." For the most part, it turned out that I was wrong: most people exercised good sense, and realized that the vast majority, practically the entirety, of muslims joined with everyone else in saying "this was a monstrous act by a few nut jobs." And likewise, I think people are smart enough to see the insurgency for what it is, a bunch of power-hungry proto-fascists who aren't so much attempting to create an islamic republic as they are trying to put themselves at the head of it. But "cartoongate" is an entirely different matter: it is an apparently sizable and popular series of protests against a core American liberty, free speech. We are seeing a large number of muslims basically protesting against the very freedom they are exercising by protesting. Frankly, I would be lying if I said my impression of them as a group hadn't suffered, if for no reason better than the seeming incapacity of these folks to see what dupes their leaders are playing them for. As Judge Kozinski once put it, the parties are advised to chill.

On being quoted by Ted Olson

I am not ashamed to admit to being absolutely stunned and thrilled to read The Art of Abortion Politics, Christianity Today, 02/20/2006, in which yours truly is quoted by no less than former SG and (at the risk of turning into A3G) FedSoc megastar Ted Olson:

[In Ayotte, ] [t]he Court attempted to limit the scope of its ruling; the first sentence announces it is not a decision to "revisit our abortion precedents." But as law blogger Simon Dodd suggested on Volokh.com, the 10-page decision could "rather substantially change the environment in which states may enact regulations of abortion, from one in which such actions are mere lip service which will never be enforced, to one in which a state may make and apply reasonable regulations on abortion, even while court proceedings are ongoing." Undermining without overruling.
The quote is actually taken from a comment I made at Volokh, but none-the-less, I am humbled, honored, and more than a little surprised.

Bush to propose line item veto act - what's changed?

It turns out he wasn't kidding in the State of the Union. Bzzt! I'll take "things that are unconstitutional" for 500, Alex!

In case anyone doesn't know, this was tried a few years ago, and was promptly found unconstitutional in Clinton v. City of New York, 524 U.S. 417 (1998):

The Act empowers the President to cancel an “item of new direct spending” . . . specifying that such cancellation prevents a provision “from having legal force or effect” . . . Thus, in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each . . . [T]here is no constitutional authorization for the President to amend or repeal.
As with so many things, the line item veto is one of those ideas which may well, in fact, be a pretty good idea, and yet is none-the-less beyond what the Constitution permits. One does not have to like the idea of the unitary executive to conclude that it is what the Constitution requires*; one does not have to dislike the idea of a line item veto to conclude that the Constitution forbids it. As Justice Kennedy's concurrence notes, it is inadequate justification "to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or enacted over his veto, could restore to Congress the power it now seeks to relinquish . . . That a congressional cession of power is voluntary does not make it innocuous."

It bears pointing out that Yahoo actually gets it wrong - Clinton did not say, as Yahoo claims, that 2 U.S.C. § 691 "violated the principle that Congress, and not the executive branch, holds the power of the purse," it said that it violated the terms of the presentment clause:
There are important differences between the President’s “return” of a bill pursuant to Article I, §7 ["he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it"], and the exercise of the President’s cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes [and] [t]here are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition . . . Our first President understood the text of the Presentment Clause as requiring that he either “approve all the parts of a Bill, or reject it in toto.”
In other words, the line-item veto at issue in Clinton wasn't a pure line-item veto; so, according to Congressional Quarterly, the Bush bill's text may try to get around this by :
forc[ing] Congress to cast a separate up-or-down vote on particular spending or tax items that he opposes within larger bills. “By passing this version of the line-item veto, the administration will work with the Congress to reduce wasteful spending, reduce the budget deficit, and ensure that taxpayer dollars are spent wisely.”
In other words - not cancellation, but actually returning specific parts of the bill.

We'll have to wait for the exact text, but I simply can't imagine language that could survive scrutiny, and given the implication of the CQ report, it might even lose another vote. Firstly, five members of the six-member Clinton majority remain on the Court, and one of the dissenters (O'Connor) is also gone. Nor should it be assumed that our Fearless Leader and Brother Sam would have joined Justice Scalia's dissent: the Clinton majority included Justice Thomas and the late Chief Justice, and the minority included Justice Breyer, which makes this anything but a liberal/conservative divide, or even an originalist/living documentarian divide. But what really strikes me is that Scalia's dissent does not attempt to uphold a line-item veto: quite the contrary. Indeed, from the language of the dissent, I suspect that the divide between Scalia and Thomas in Clinton actually turned not on whether the original understanding of the presentment clause (or any other) is violated by a line-item veto, but on whether or not they regarded the statute as a line-item veto in the first place. Quoth Our Hero:
The President’s action [the statute] authorizes in fact is not a line-item veto and thus does not offend Art. I, §7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union
(Emphasis added). I don't know how to read this other than as going out of its way to say that the statute is not a line item veto, suggesting with heavy inference that a statute that really was a line-item veto would fail Scalia's test. Indeed, the statement "[the statute] in fact is not a line-item veto and thus does not offend Art. I, §7" practically screams the corollary "...but if it was, it would." So in fact, a statute that uncontroversially IS a line-item veto, which seems to be what Bush is proposing, might well even lose Scalia's vote.

Update: I have a slightly expanded version of this post with attendant discussion at Centerfield.

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Footnote:
* See About the unitary executive and settled law, 1/11/06; cf. comments here ("There are many things that the Constitution says (directly or in practical effect) which make no sense to me, but that doesn't mean they can be "fixed" by litigation . . . I don't think that the Unitary Executive is [necessarily] a particularly attractive proposition on a normative level, but I do think that it's what the Constitution says").

Kitten update II



We have no idea why, but Sofia likes to sleep in the bathroom sink.

Caleb is not being included in this update because he's not been willing to stay still long enough to snap a worthwhile picture; I may post a supplemental next week.

Justice slumbers

Justice Ginsburg fell asleep during oral argument for the Texas redistricting cases yesterday, reports Expressio Unius; wags might suggest that it hardly matters since it seems unlikely that Ginsburg's vote is unpredictable, but as the author points out, "[w]hile I don't think she should be impeached for the offense, I think it should be taken very seriously . . . [a]nd it would be, I think, if it were someone like Scalia, who the media likes to hound." Foul!, cried a commenter: "Justice Thomas has asked about three questions in ten years. Why not criticize him too?"

Well, perhaps the obvious reason is that there is a major (and obvious) difference between not asking questions, on the one hand, and falling asleep on the other hand; I think it's vaguely ludicrous to suggest parity between a person who participates by listening, and a person who is absent, either in body or mind. Since the opportunity presents itself, though, it's worth reminding ourselves what Brother Clarence has to say about why he keeps quiet:

Why don't I ask questions [at oral argument]? Do you think there aren't enough questions already asked? [laughter] I don't ask questions for entertainment, or to give people a hard time. I have some very active colleagues who like to ask questions; usually, if you wait long enough, someone will ask your question.

Another thing: I was on the other side of that podium before, in my earlier life. And it's hard to stand there, by yourself, and have judges who are going to rule on your case and ask you tough questions. I don't want to give them a hard time.

But anyway, I'm going to give you a more personal reason why, and this is actually the first time I've talked about this. When I was sixteen, I was sitting as the only black kid in my class, and I'd grown up speaking in kind of a dialect - it's called 'geechy', people praise it now, but they used to make fun of us back then. It's not standard English. When I transferred to a white school . . . I was self-conscious, like we all are at sixteen. And the problem was that I would correct myself mid sentence; I'd try to speak standard English, I'd think in standard English, but I'd speak in this dialect. so I learned, I started developing the habit of listening. And it just got to be [a habit] . . . I didn't ask questions in college or law school. I found I could learn better by just listening, and if I had a question, I could ask it later.

For all those reasons and a few others, it's more in my nature to listen rather than to ask a bunch of questions - and they get asked anyway. The only reason I could see for asking the questions is to let people see that I've got something to ask, and that's not a legitimate reason, in the Supreme Court of the United States
(From a C-SPAN Q&A with Justice Thomas which can be found here).

Public knowledge of the First Amendment

According to a news report this morning, only one on a thousand people surveyed could name the rights guaranteed by the First Amendment. The co-host starting musing "gee, I don't know that I could name them all...Life, liberty, the pursuit of happiness, that's three of them."

Be very afraid.

Update: via How Appealing, the Chicago Tribune comments on this story:

[The story] that Americans know more about "The Simpsons" than they do about the 1st Amendment . . . should surprise nobody" . . . [yet] at least twice in recent months we've seen how just one of the five 1st Amendment freedoms--freedom of the press--has allowed the American people to obtain information they need in order to perform their role as citizens, as overseers of their government and its activities
Wycliff's point is presumably to underscore that the often pitiful knowledge of the public at large about basic constitutional questions is not just an academic point, but one vital and directly related to current events. I have some things to say about this story, but I don't have time to do so today, so either at the weekend, or sometime next week.

Recent entries
» Moving on up
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