Showing papers in "William and Mary Bill of Rights Journal in 2007"

A Matter of Direction: The Reagan Administration, the Signing Statement, and the 1986 Westlaw Decision

Abstract: The presidential signing statement has received a great deal of attention since an April 30, 2006, Boston Globe story told of President George W. Bush using it to challenge the constitutionahty of over 750 provisions of law.1 As a result, the Senate2 and House3 Judiciary Committees held a hearing on the signing statement, four separate bills were introduced in an attempt to blunt its effect,4 and various outside interest groups released statements condemning its use.5 Despite all of the heated attention directed towards the current administration and its use of the signing statement, it was not the first to use the signing statement. In fact, the signing statement has roots nearly as deep as the Republic. The signing statement was first utilized in the Monroe administration to protect the President's Commander-in-Chief prerogative.6 The device did not come into regular use, however, until the period following Watergate, when it was used routinely by the Ford and Carter administrations to nullify legislative vetoes7 and drew its first reaction from Congress. In 1978, Congressman Elliot Levitas (D-GA) added language to an appropriations bill that required the Attorney General to inform Congress whenever he refused to defend a challenge to a legislative veto.8 But it was the Reagan administration that developed the signing statement into a strategic weapon, part of a set of "power tools" the President could rely upon when needed.9 Thus, the purpose of this Article is to provide a complete and detailed understanding of the decision by the Reagan administration to add the signing statement to the legislative history of bills signed into law. While many believe that the Reagan administration's purpose for the signing statement was to affect judicial decisionmaking,10 I will demonstrate that the decision was designed to influence the administrative agencies as much, if not more, than to influence judges. I. WHAT IS A SIGNING STATEMENT? Before telling the story of the Westlaw decision, it is important to understand precisely what a signing statement is in order to understand its importance to the President. The signing statement is a document the President appends to a bill he has signed into law. The signing statement may be both written and spoken, as when the President calls together members of Congress or other important individuals who have helped pass the legislation he has signed. Mostly, signing statements are informal and only written, akin to a press release. The actual document that is the signing statement does not hold much interest to scholars studying the presidency. It is what is contained in the document - the "devil in the details" - that is important. There are four different uses for the presidential signing statement - either non-constitutional or constitutional. The first use, and the only one not justified by interpreting the Constitution, is the rhetorical signing statement.11 The rhetorical signing statement, by far the most common use of a signing statement, is used to garner the attention ofthe press, important political constituencies, Congress, and/or the public. For instance, the President will thank particular members of Congress for help on abili, or he will use it to scorn Congress for sloppy or irresponsible work.12 One study has found that the number of signing statements responds positively to the presence of a federal election, going up during a presidential or midterm election and falling during off-year elections.13 The second, third, and fourth uses for the signing statement involve interpreting the Constitution. They either rely upon the Oath Clause or the Take Care Clause in Article II.14 The second use for the signing statement, and one that stems from the President' s oath to protect and defend the Office of the Presidency as well as the Constitution, involves the President challenging provisions of a bill he deems unconstitutional. …

The First Word

Abstract: Does the President get the last word in the legislative process when he issues a signing statement? Those angry about President Bush's December 2005 signing statement on the Detainee Treatment Act thought he did just that. Implying that the statute's prohibitions on cruel, inhuman, or degrading treatment would not apply in certain circumstances,1 President Bush's statement provoked an outcry.2 Critics claimed that the President did not have the political muscle to defeat the statute, so he instead announced that he would sometimes ignore it. Having the last word has its advantages. But so does having the first word. Signing statements come at the end of the legislative process, but they also come at the beginning of the life of a law. President Bush's signing statement was controversial not only because it was the last word, but because his words mattered.3 In the absence of a definitive judicial interpretation of the statute, the signing statement would guide those in the executive branch who were bound to follow the law. This Article, using signing statements as one example, analyzes the various tools available to Presidents to exert influence over actors in the executive branch. Signing statements are notable because they permit the President to instruct subordinates ex ante. They are, that is, the "first word" - the first step in the process of turning laws into on-the-ground reality. But they are just one of many instruments Presidents can rely on to manage, direct, and supervise subordinate officials. To assert their will, Presidents can rely on the appointment power to place like-minded officials in key positions, conduct White House review of important proposed actions of subordinates, and, as signing statements illustrate, provide ex ante guidance to executive branch actors about how they should exercise their authority. Whether these tools permit the White House to effectively control the bureaucracy is of interest in many quarters. It is of intense interest to Presidents and their staffs. They face a vast executive branch staffed by people who will not always do as the President would wish. Increasing presidential control over the bureaucracy is also the subject of intense debate among observers of the executive. Many have documented the fact of increased White House direction of the bureaucracy.4 Critics disagree over the wisdom of this development. Advocates of accountability applaud increased presidential efforts to control the executive branch.5 Critics fear that such accountability will displace agency professionalism and expertise with politics.6 For a politician to have a strategy for White House control, or for a critic to have a view about the wisdom of such control, it would be useful to know as a positive matter, which presidential tools are the most effective and which are least effective in achieving presidential wishes. This Article takes up that positive question. The agenda here is not normative; the Article takes no position on whether further Presidential control of subordinates is a good or bad thing. Instead, the Article takes the perspective of a White House seeking to effectuate its will and assesses the strengths and weaknesses of each of the strategies available to the President to assert control over the executive branch. To do so, the Article identifies a variety of circumstances in which Presidents might worry about the actions of subordinates and examines presidential responses in order to assess their efficacy. The President can appoint key personnel; he can provide ex ante instructions; and he can review major agency actions ex post. These strategies are not equally effective. As this Article will show, the effectiveness of a given strategy depends both on the task assigned to the subordinate official and the nature of that official's potential drift away from the White House. An important lesson of the analysis is that ex ante instructions, like signing statements, have some distinct advantages over ex post review in controlling certain kinds of discretionary actions by subordinates. …

Signing Statements: Constitutional and Practical Limits

Abstract: A constitutional issue largely hidden, except among specialized scholars, reached the public in 2006 when Charlie Savage of the Boston Globe wrote that President George W. Bush "has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution."1 Does the United States have two sets of laws, one performed publicly by Congress and the other conducted after the fact by executive officials? Is the second superior to the first? A dramatic illustration of executive claims had already occurred some months earlier, on December 30, 2005, when President Bush signed a defense appropriations bill that included a provision prohibiting cruel, inhuman, or degrading treatment or punishment of persons held in U.S. custody.2 The purpose of the legislation was to prohibit torture of detainees. In signing the bill, Bush stated that the provision would be interpreted "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."3 In the U.S. constitutional system, what form of law is supposed to govern? The text of a statute or executive interpretations (necessarily done in secret) about how to interrogate detainees? May a President, through a signing statement, nullify or dilute a bill that both Houses had just passed and presented to him? Does that assertion of authority give him, in effect, an item veto? What happens to the President' s constitutional obligation to "take Care that the Laws be faithfully executed"?4 If he found the bill constitutionally repugnant, why not veto it? Moreover, is this attention to signing statements excessive? Should not the focus be whether the President assures that the bill is faithfully carried out? If it is, the President's remarks in a signing statement are of little interest or consequence. On the other hand, if the President said nothing in a signing statement but later prevented the statutory program from being carried out, the constitutional violation is no less serious. On all of these questions a variety of remedies have been offered, including legislation designed to push the dispute over signing statements into court for an ultimate solution. That approach offers little hope for reasons to be given. This Article has four sections. Section I reviews the precedents established over the years that guide the President's duty to enforce the Take Care Clause.5 Courts and Attorneys General have been clear that Congress may direct executive officials to carry out certain "ministerial" acts that the President is constitutionally required to have faithfully implemented.6 In this area, executive officials look to the law, not to competing and potentially overriding presidential interpretations (whether in signing statements or elsewhere). Some statutes are mandatory. Others provide substantial discretion to the President, and his judgments are legally binding within the scope offered by the statutory language. Section II examines the range of positions offered on signing statements, by executive officials, scholars, and private groups. Section III looks at a very unique area: presidential implementation done not in public, as with signing statements, but in secret. This issue has emerged at various times, such as with the Iran-Contra affair, but this Section pays particular attention to the current controversy over the Terrorist Surveillance Program conducted by the National Security Agency after 9/11. Section IV evaluates pending legislation designed to remedy potential problems with signing statements. I. JUDICIAL AND LEGISLATIVE GUIDANCE Presidential signing statements have never been squarely and definitively addressed in court cases or congressional legislation, but numerous precedents over the years provide recognizable boundaries that both sanction and limit presidential discretion. …

Family Law Federalism: Divorce and the Constitution

Abstract: American divorce law was transformed by the Supreme Court in a series of decisions beginning with Williams v. North Carolina in 1942. These constitutional full faith and credit cases resolved a long-standing federalism problem by redefining the scope of state power over marital status. With these decisions, the Court shifted from an analysis based on the competing interests of different states to an approach that highlighted the individual interests of the parties involved. This change fundamentally altered state power over the family by extending to individuals greater control of their marital status. In the process, the Court cleared a path for innovations including unilateral no-fault divorce and divorce based on mutual consent and laid the foundation for a stronger national role in domestic relations law. Introduction In the American conception of federalism, families are a matter for local rather than national control. This premise was central in the popular and congressional debates before and after the Civil War on subjects such as slavery and women's emancipation,1 and the same trope complicates the present debate over legal recognition for samesex marriage. The premise appeared in Supreme Court opinions in the nineteenth century2 and reemerged in the jurisprudence of the 1990s when the Court reshaped the limits of federal authority under the Commerce Clause.3 The traditional association of "family" with "local" assumes that families can be meaningfully identified with specific geographic territories for regulatory purposes. While this notion has a powerful rhetorical and emotional appeal, it was already problematic in the middle of the nineteenth century and had become largely untenable a hundred years later.4 Throughout this time period, attempts to sustain state authority over the family generated enormous conflict of laws problems, particularly in the context of divorce and child custody disputes.5 The federalism problem at the core of the divorce debate was ultimately truncated by the Supreme Court in a series of decisions that began in 1942.6 Acting on the basis of constitutional full faith and credit principles, the Court severed the connection between state power and marital status, changing the shape of both divorce law and American federalism. In the literature on the Supreme Court's transformation of federalism in the mid-twentieth century and in the literature on the history of divorce,7 the intersection between divorce law and federalism has gone largely unexplored.8 This Article reconnects these subjects, analyzing the ways in which the Supreme Court reframed divorce law and federalism in the 1940s and 1950s.9 The Article traces the Supreme Court's important innovations into the "divorce revolution" ofthe 1960s and 1970s and examines the Court's transformation of constitutional full faith and credit from a federalist doctrine that centered on state interests to an individual rights discourse that highlighted the interests of ordinary citizens. 10 The Article argues that the divorce cases fundamentally altered state power to set the normative boundaries of family Hf e by extending to individual citizens the ability to choose which jurisdiction would control their marital status. The construction of this individual right, in the interstices ofthe Full Faith and Credit Clause,11 suggests an important tension between a strong theory of federalism and a strong conception of national citizenship. In this respect, these cases seem to anticipate the more extensive infusion of constitutional principles into family law that occupied the Court during the decades that followed. Despite the survival of old rhetoric assigning the family to local authority, the constitutional model that consigned the family to local control was effectively discarded fifty years ago. Family law in America today is extensively shaped by national law, with both Congress and the Supreme Court deeply engaged in setting policies, defining norms, and harmonizing the competing laws of different states. …

The Presidential Signing Statements Controversy

Abstract: INTRODUCTION Presidential signing statements have come out of obscurity and into the headlines. Along with salutary attention to an interesting issue, the new public visibility of signing statements has generated much overblown commentary. The desire to make these little-known documents interesting to the public - and to score points in the inevitable political battles over any practice engaged in by a sitting President - has produced a lot of discussion that misleads the public and has tended to obscure the significant issues surrounding the use of signing statements. Reflection may help put the discussion in a more useful perspective. We offer these views as the joint product of persons who have served under different Presidents and are identified as Republican and Democrat (one in each camp) and as enthusiasts for fairly strong and relatively modest views of presidential authority under the Constitution (also one in each camp). Presidents long have said what they think of the bills they sign into law and for two centuries have issued formal statements when they find something particularly noteworthy.2 Even though conflicts over signing statements have arisen from time to time for more than 175 years, the practice of issuing these statements remained little known and little noticed until the past few years.3 Recently, from the public's vantage, everything seems to have changed. Newspaper exposes two years or so ago made it appear that President George W. Bush had greatly expanded the use of these statements beyond the practices of his predecessors, and concern over this characterization prompted both a Senate hearing (while the Senate remained Republican)4 and an American Bar Association (ABA) resolution condemning misuse of presidential signing statements.5 The bar association's resolution followed a much talked-about report by a blue-ribbon ABA task force and highly publicized statements from its chair, Neil Sonne«, tying the ABA' s initiative to constrain signing statements to concerns about the Bush administration.6 Subsequent to the Republicans' loss of control in Congress, the controversy continued with no lowering of the sound level. The House of Representatives has held hearings on the use of signing statements;7 a bill has been filed to prevent the use of any funds for signing statements;8 the Congressional Research Service has produced a report on signing statements' constitutional and institutional implications;9 the Government Accountability Office (GAO), at the urging of congressional Democrats, has studied their actual implementation;10 and this symposium has been held. News reports and statements by politicians have cast the use of signing statements as a threat to our constitutional system and its division of powers among the branches of government.11 Mr. Sonnett and other ABA leaders, for example, declared that any use of signing statements to assert the unconstitutionality of elements of a statute, or to direct an interpretation inconsistent with clear congressional purpose, is a misuse of presidential power. 12 They proclaimed that the Constitution gives the President the simple choice of vetoing laws or signing them, adding that if the President signs a bill into law, he cannot qualify that choice.13 That was the theme sounded in the congressional hearings as well.14 And, following the release of the GAO report, the New York Times editorialized that President Bush had used signing statements to dramatically flout the law and the will of Congress, characterizing the administration's approach as one of "Don't Veto, Don't Obey."15 In our judgment, there is a lot more smoke than fire in this uproar - although there is some fire, and that is worth focusing on. While President Bush has used his signing statements to take exception to many more individual provisions of legislation than any of his predecessors16 and has tended to issue relatively lengthy statements, in fact they were often used by each of his three immediate predecessors, including President Clinton, whose frequency was quite similar to that of President Bush. …

Signing Statements and Divided Government

Abstract: A striking but largely unnoticed feature of the controversy spurred by George W. Bush's aggressive use of signing statements is that Republicans, with only a brief interruption, controlled both houses of Congress from 2000 until 2006.1 The question of why a Republican President would use signing statements to slap down a Republican Congress did not meaningfully register in either a July 2006 American Bar Association (ABA) Task Force Report, a series of Boston Globe articles that won the Pulitzer Prize, or congressional hearings held by Republicans in June 2006 and Democrats in January 2007. 2 The subject of this controversy, instead, has been whether the President has a legal duty to enforce laws he thinks are unconstitutional and, relatedly, whether the President is improperly expanding his power by "quietly claim[ing] the authority to disobey more than [800] laws enacted since he took office."3 I do not doubt the appropriateness of journalists, academics, and lawmakers focusing their energies on the related questions of whether Presidents can disobey laws they sign and, even if they can, whether President Bush is nevertheless going too far in pushing his vision of presidential power. Those questions should be front and center in this conversation. At the same time, I think the question of how the President's use of signing statements might differ in periods of unified and divided government is worth examining.4 In this Essay, I will focus on the use of signing statements to advance the President' s policy agenda. My central claim is that Presidents have far stronger incentives to use signing statements to advance their agendas in periods of divided government. I am not arguing, however, that our system of checks and balances would be improved by increasing the use of signing statements during periods of divided government. Even though I will call attention to ways in which Presidents have advanced their political agendas through unilateral action, I do not take a position on the larger question of whether Presidents have too much or too Utile power vis-a-vis Congress.5 My argument is straightforward: when the President and Congress are of the same party, Presidents can advance their policy agendas by working informally with Congress and federal agencies. In periods of divided government, Presidents have less control of agency heads and less influence in Congress. Pre-enforcement directives - like signing statements - can be used to constrain agency discretion, signal Congress about presidential priorities, and - like other forms of unilateral presidential action - shift the burden to those who disapprove of presidential policies to override instructions to agency heads. The fact that Presidents should make greater use of policy-based signing statements in periods of divided government does not mean that Presidents, in fact, have used signing statements for this purpose. Unlike executive orders, signing statements do not have much of a historical pedigree. Before Ronald Reagan sought to centralize presidential power through a host of 1 980s reforms, Presidents hardly ever attached a signing statement to legislation.6 More than that, even though Reagan's legal team saw signing statements as a useful mechanism for centralizing executive branch policy priorities,7 Reagan made only sporadic use of pre-enforcement signing statements. In short, because no President has systematically used signing statements to advance his policy agenda, there is little hard evidence to assess differences between policy-based signing statements in periods of unified and divided government. In explaining why Presidents should see policy-driven signing statements as a useful mechanism to advance their agendas in periods of divided government, this Essay will proceed in two parts. Part I will detail why Presidents have incentives to pursue their policy agendas through unilateral action. Executive orders, unilateral presidential war-making, and structural initiatives that allow Presidents to centralize and coordinate agency policymaking are well documented examples of this phenomenon. …

The Unconstitutionality of "Signing and Not-Enforcing"

Abstract: INTRODUCTION 113 I. THE PRESIDENT' S DECISION TO NOT-ENFORCE UNCONSTITUTIONAL PROVISIONS 115 A. Presidential Review 115 B. The Prohibition On Discretionary Presidential Review 117 II. THE PRESIDENT' S DECISION TO SIGN AN UNCONSTITUTIONAL BELL ..... 119 III. THE PRESIDENT' S DECISION T? SIGN AND NOT-ENFORCE 120 IV. THE ABA REPORT ON SIGNING STATEMENTS 124 V. DESIRABILITY 126 VI. THE POWER TO SIGN AND NOT-ENFORCE UNDER FUNCTIONALISM ...... 127 CONCLUSION 129 INTRODUCTION Last year, President Bush signed a bill reauthorizing the USA PATRIOT Act. In his signing statement, however, the President announced that he would not follow various provisions in the Act that interfered with his executive and national security powers.1 Throughout his presidency, President Bush has regularly engaged in this practice of signing a bill and stating that he will not-enforce the provisions in it that he considers unconstitutional.2 But President Bush has not been alone. All recent Presidents of both political parties have engaged in this practice,3 although President Bush appears to have done so more often than his predecessors.4 The constitutionality of this practice is a matter of significant dispute. Some commentators view the President's actions as an unconstitutional assertion of a presidential power to ignore federal statutes. Others, however, defend it on the ground that the President is required to interpret and enforce the Constitution just as the courts are. One natural way to view the controversy is as turning on whether one believes that the President has the power to not-enforce. If one believes that the President can notenforce laws he believes are unconstitutional, then he can sign and not-enforce. If he does not have this power to not-enforce, then he cannot sign and not-enforce. In this Essay, I argue that the presidential practice of signing a bill when one intends to not-enforce part of it is always unconstitutional, irrespective of whether one believes the President has the power to not-enforce. If one believes that the President lacks the power to not-enforce unconstitutional provisions, then, of course, the President cannot "sign and not-enforce." But even if one believes that the President has this power to not-enforce, the President still cannot sign and not-enforce. If the President concludes that the Constitution forbids him from enforcing part of a bill, then he must also conclude that it forbids him from signing that bill. He cannot treat the Constitution as binding him when he enforces the law but as mere guidance when he decides whether to approve a bill. A decision to sign a bill and not-enforce part of it impermissibly treats the Constitution as a matter of presidential discretion rather than as supreme law that always binds the President. In making this argument, I employ an originalist-formalist conception of law, which I believe provides the proper approach to the Constitution. Under such an approach, one attempts to discern the original meaning of the Constitution and does not seek to read the Constitution in a flexible manner in order to accommodate modern practices or what one might deem desirable results. In recent years, originalist-formalist theories have received greater scholarly attention and have had a significant influence on the Supreme Court.5 While I argue from an originalist-formalist perspective, I also briefly examine signing and not-enforcing under a nonoriginalist-functionalist approach. Because that approach tends to reject categorical rules in favor of flexible, multipart balancing tests, it is not surprising that it does not necessarily forbid all presidential decisions to sign and not-enforce. …

Signing Statements and Statutory Interpretation in the Bush Administration

Abstract: Over twenty years ago, Attorney General Edwin Meese touched off a contentious debate by proposing that judges take presidential signing statements into account when interpreting statutes. To facilitate this proposal, the Attorney General persuaded West Publishing Company to include presidential signing statements in the legislative history it published in the U.S. Code Congressional and Administrative News (U.S.C.C.A.N.).1 Attorney General Meese's position was fairly straightforward: the President is a significant actor in the legislative process. The Constitution authorizes the President to recommend to Congress "such Measures as he shall judge necessary and expethent."2 Moreover, a bill may not become a law unless it has been presented to the President and has been either approved by him or passed by Congress over the President's veto.3 Constitutional formalities aside, the President is a vitally important actor in the legislative process. The President exercises a great deal of agenda-setting power, especially when the President's party holds a majority in Congress. The President is in a position to offer incentives and disincentives to help persuade legislators to vote in favor of the President's legislative priorities. The President, as head ofthe executive branch, controls much of the information that forms the basis of legislative decisionmaking. In these and other ways, the President is extremely powerful in the legislative arena. Thus, if a court is attempting to determine the legislative intent behind a piece of legislation, the published views of the President would seem to be potentially probative. This innovation was largely developed by a young Justice Department attorney named Samuel Alito.4 The controversy that the Meese and Alito proposal generated soon died down. More recently, the Bush administration has followed a practice that has brought signing statements back to broad public attention, but for different reasons. The Bush administration has used signing statements to issue an unprecedented number of constitutional objections to new laws - 1042 by the end of 2006.5 While there is nothing new in a President using a signing statement to convey his constitutional objections to a provision of a bill that the President just signed into law, the sheer number of such constitutional objections issued by the Bush administration has made the practice noteworthy. There have been two major objections to this use of signing statements. First, the American Bar Association, among others, has condemned the practice on the grounds that the President is constitutionally obligated to veto a bill if the President believes that the bill contains an unconstitutional provision.6 Second, President Bush's signing statements have often been taken to express a refusal to be bound by provisions of law he believes to be unconstitutional.7 Some commentators take the position that the President is bound by the duty to take care that the laws be faithfully executed8 to execute every statute regardless of his view of the statute's constitutionality.9 In this Article, I will not address these controversies.10 Rather, I want to address the issue raised by the Meese proposal but in the specific context of the Bush administration's signing statements. Should the judiciary or anyone outside the executive branch11 use President Bush's signing statements12 as a guide to the meaning of statutes? The short answer is no. One possible reason for a negative answer is that it is categorically improper to consider presidential signing statements as an element of legislative history. This argument was urged against the Meese proposal and takes two forms.13 First, formally, the President is not part of the legislature, and therefore, signing statements cannot be considered part of the legislative history.14 Second, pragmatically, signing statements are easily manipulated so as to reflect not so much the legislative intent as the preference of the President. …

Signing Statements as Declaratory Judgments: The President as Judge

Abstract: INTRODUCTION Even though there had been scholarly consideration of the use and abuse of presidential signing statements earlier,1 and even an analysis ofthe George W Bush administration's particularly aggressive approach to the use of this policy tool in its first four years in office,2 serious public attention and increased professional and scholarly assessments really began in January 2006 The ongoing conflict between Congress and President Bush over interrogations and conditions of detention at the Guantanamo Bay, Cuba, facility that housed those the administration termed "illegal combatants" had resulted in a very public agreement by the President to address abusive practices3 The President, in a White House photo opportunity with Senator John McCain, agreed to sign legislation that would address the problem4 However, his signing statement, issued on December 30, 2005, made clear that the administration intended to interpret and implement that legislation as it saw fit and not necessarily as Congress had intended or written5 That news broke just as Samuel Alito was preparing to face confirmation hearings in the Senate Judiciary Committee on his nomination to become an Associate Justice ofthe United States Supreme Court It became clear from materials released before those hearings that Alito, while at the Justice Department, had issued a now well-known memorandum on February 5, 1986, explaining how signing statements could be used by the White House to enhance presidential power6 Since then, scholars, legal practitioners, and legislators have spent considerable energy attempting to understand this policy tool and what its use and abuse mean for the separation of powers and the checks and balances under the US Constitution, as well as to determine its practical implications for public policy As interest and concern spread, it became apparent, even to the newcomers to the discussion, that the Bush administration had not been the first to use signing statements to react to the passage of legislation, but that there plainly had been a deliberate expansion of the use of the device, starting with the Reagan administration7 That said, from the first study of the George W Bush administration on, it became clear that this administration was making a more frequent, systematic, and expansive use of the instrument based on extremely broad claims of presidential power that asserted nearly unchecked authority in anything related to foreign or military affairs on the basis of an asserted prerogative power, as well as dramatic assertions of broad domestic power supported by the so-called unitary theory of the executive Indeed, in its first term, the George W Bush administration had advanced the unitary theory of the executive as the basis for more of its constitutional objections to provisions in legislation that the President nevertheless signed into law than any other justification8 Not surprisingly, the criticism and controversy surrounding the use and abuse of signing statements centered on the relationship between Congress and the White House, with particular concern for the Presentment Clause of the Constitution, Article I, Section 7 With the use of the signing statement as a kind of substantive line item veto, a practice already rejected by the Supreme Court,9 and a simultaneous recognition of the utter failure of Congress to pay attention to its own institutional operations and to defend its Article I powers,10 the focus of discussion was on the ways in which the contemporary use of the signing statement affected the checks and balances and the separation of powers it was designed to protect between these two institutions11 However, there is another set of questions worthy of attention that have to do with White House actions that move into the sphere of judicial powers under Article III Indeed, when one examines the use of signing statements since the Reagan years, it becomes clear that, in addition to its efforts to enhance its powers as against the legislature, the White House has also sought to enhance executive authority in part by acting as if it were a court …

Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964

Abstract: INTRODUCTION The recent resurgence of anti-Semitic incidents at American colleges and universities1 has revealed a significant ambiguity in anti-discrimination law and raised questions regarding the scope of prohibited racial and ethnic discrimination in American educational institutions. Title VI of the Civil Rights Act of 1964 (the "1964 Act") prohibits discrimination on the basis of race, color, or national origin in federally funded programs or activities, including most public and private universities but does not explicitly prohibit religious discrimination.2 Since anti-Semitism may be based on ethnic, racial, or religious animus, the question arises as to whether antiSemitism is covered and to what extent. Recent high-profile incidents of alleged antiSemitic behavior on American college campuses have focused attention on this question and on the efforts of federal agencies to answer it. The issue is complicated by the politically charged atmosphere in which these incidents arise, in which alleged harassment is often closely connected to speech activities relating to matters of significant public import, such as the Israeli-Palestinian conflict. Until late 2004, the U.S. Department of Education's Office for Civil Rights (OCR) largely avoided anti-Semitism cases based on two concerns, both of which have strong intuitive appeal. First, Jews are not considered to constitute a distinct "race" as that term is used in contemporary social science or in common public usage.3 Second, Congress elected not to prohibit religious discrimination in Title VI, and anti-Semitism is, among other things, a form of religious discrimination.4 Until 2004, OCR did not recognize that Jews also form an ethnic or ancestral group and that the scope of legislatively prohibited "racial" discrimination may not be limited by either social scientific or colloquial use of that term. In late 2004, OCR finally determined that Title VI of the Civil Rights Act of 1964 prohibits anti-Semitic harassment at federally funded public and private universities, except to the extent that the harassment is exclusively based on tenets of the student's religious faith.5 In other words, OCR policy now treats anti-Semitic harassment as prohibited racial or ethnic harassment except when it is clearly limited to religious belief rather than ancestral heritage. This new OCR policy has been controversial.6 Critics contend that OCR overstepped its jurisdictional bounds and that the federal government lacks the authority to prevent anti-Semitic incidents even at tax-payer funded educational programs and activities.7 The U.S. Commission on Civil Rights, in a divided vote, confirmed OCR's 2004 interpretation and urged vigorous enforcement of Title VI to protect Jewish students from harassment.8 By way of disclosure, the author served as head of OCR at the time that it issued its 2004 policy and director of the Civil Rights Commission at the time that it issued both its findings and recommendations on campus antiSemitism and its full report on that topic. This Article will argue that anti-Semitic harassment at federally assisted programs and activities, including post-secondary institutions, constitutes racial discrimination prohibited by Title VI when sufficiently severe, pervasive, and objectively offensive as to deny equal educational opportunities to Jewish students. This argument runs counter to commonly held intuitions for the two reasons that long delayed OCR's decision to extend civil rights protections to Jewish students: reluctance to characterize Jews as a race (with all of the nineteenth century pseudo-scientific and mid-twentith century anti-Semitic connotations with which that designation is laden)9 or to resist Congress's presumed intention to exclude religious groups from Title VI protection. Nevertheless, this Article will show that the scope of Title VI prohibition on racial discrimination encompasses anti-Semitism to the same wide extent as does the Fourteenth Amendment and the Civil Rights Act of 1 866 (the "1 866 Act"). …

The On/Off Switch

Abstract: The only point I want to make is very simple, but its implications are immensely important. The writers of a Constitution that carefully separated powers out of fear of executive authority and who, even then, saw that it could only be ratified after a Bill of Rights was added, could not have intended that the President be given unilateral control of an on/off switch for both of these sets of protections against executive power. I could stop there. I. ARTICLE II I am persuaded that a presidential signing statement, an interpretation of a new law, is just one of a number of forms by which the President can direct executive branch activity, with certain advantages and disadvantages to each. I take seriously the argument that the President, under an extension of the principles of Marbury v. Madison,1 has a responsibility to direct subordinates not to enforce at least some statutes on the grounds that they are plainly unconstitutional. I wonder whether this logic would not take us, as well, to the obligation of executive subordinates not to enforce any presidential directives or statutes they regard as unconstitutional - a consequence that nobody recommends. I am not at all sure that a distinction can be drawn between his protection of Article ? powers, such as the appointment power,2 and his protection of the Bill of Rights. I recognize that the precedents have drawn no such distinction, although the former seems to pose more of a conflict of interest. Still, no chain of reasoning in terms of premises that start with the normal priority of the Constitution over statutes3 can convince me that the President was given independent control of an on/off switch labeled "war" or "no war" against individuals or groups - a switch that empowers him to set aside vast portions of the Constitution and, in particular, those portions that were intended to control his powers. That simply cannot be. If, as history and policy both dictate, the executive enjoys highly exceptional powers and independence in times of "war," Congress and the courts have to control that switch. My argument thus does not require concluding that, in times of armed conflict between the United States and another state, the President lacks extraordinary powers. My argument does not even require me to insist that any such conflict be something recognizable as very similar to a past war before Congress can agree, in a way that is likely to bind the courts, that the President has the extraordinary powers that Lincoln and Roosevelt exercised. My argument is simply that, except for a short period of time after a dangerous emergency arises and before Congress can act, the President cannot exercise war powers except with the consent of Congress. The reason is very simple. In the Constitution, the Framers allocated to Congress powers which were very carefully withheld from the President4 and the Framers gave the people liberties which were very carefully protected from the President.5 There may be rare situations of war or other emergency where some of those fundamental understandings do not apply, but it would have been absurd for the Framers to allow a discretionary decision ofthe President that we were at war with some group of nonstate actors to overturn the most basic framework of the Constitution. Unlike many other constitutions, our Constitution does not contain emergency powers, other than the power of Congress to suspend habeas corpus in times of invasion or rebellion.6 Modern nations that do have emergency powers generally require legislative authorization of a state of emergency.7 They do not allow the chief executive to decide for himself when he is to have extraordinary powers.8 Perhaps very dangerous situations can create something like emergency powers, although the Framers did not find it necessary to do this explicitly. But if there are such extraordinary national security powers in the executive, the most rudimentary common sense - something the Framers excelled at - would require these powers to be triggered by another branch. …

Why the President Must Veto Unconstitutional Bills

Abstract: It has become customary for Presidents to sign bills they regard as unconstitutional Modern Presidents often sign such bills into law and, somewhat incongruously, issue concurrent signing statements that decry one or more features of such bills as unconstitutional1 We can call this practice "Sign and Denounce" Most defenses of Sign and Denounce perhaps rest on three claims First, Sign and Denounce seems an entrenched feature of recent presidencies, so much so that the practice has added a gloss to the Constitution Second, some assert that it would be impractical for the President to veto bills merely because one or more provisions were unconstitutional Bills are often products of complicated and time-consuming legislative wrangling and compromise and frequently contain provisions that a President regards as necessary for the continued well-being and safety ofthe nation It would be onerous and unrealistic to require the President to veto such bills when the bill's constitutional provisions are so critical2 Finally, some believe that if a bill contains unconstitutional provisions, those provisions are void by virtue of their unconstitutionality such that signing the entire bill is of no moment3 In other words, even if a President signs a bill containing unconstitutional provisions, such provisions have no legal effect precisely because they are unconstitutional In this short piece, I argue that the President has a duty to veto bills when he believes they contain provisions that are unconstitutional4 He acts contrary to his constitutional obligations when he ushers into law bills that he regards as unconstitutional He can no more Sign and Denounce then he can "Propose and Denounce," that is, propose unconstitutional legislation even as he denounces it as unconstitutional Sign and Denounce is one of those practices that should be consigned to the ash heap of history, like communism and bell bottom pants5 To see why this is so, we need some sense ofthe President's constitutional obligations The duty to veto arguably arises from one of three sources The first is a general, implicit sense, arising from the Constitution, that neither the President nor any other federal officer can violate the Constitution The Constitution clearly creates law and any officer created pursuant to that supreme law is barred from acting contrary to the Constitution that helps legitimize his or her actions For instance, the President could not raise an army on his own authority because the Constitution never grants him this authority Indeed, it would be inconsistent for a President to take actions violative of the very document that creates and sustains the institution ofthe presidency This implied obligation to refrain from violating the Constitution coheres with people's intuitions about the nature of constitutions and their understanding of the duty of agents more generally Agents are not to transgress the very agreement or contract that creates them and gives rise to their duties as an agent6 The second possible source of a duty to veto is the President's unique oath to "preserve, protect and defend the Constitution"7 Read narrowly, the oath forbids presidential transgressions of the Constitution The President cannot violate the Constitution because he would be acting contrary to his express duty to defend it This narrow reading of the oath reads it as establishing a presidential equivalent of the Hippocratic Oath: "Do no constitutional harm" Going further, the oath may require more than avoiding constitutional violations and may require a defense of the Constitution, regardless of the source of the threat In other words, the oath may impose on the President an affirmative obligation to thwart or prevent the constitutional violations of others Using whatever constitutional and statutory powers at his disposal, the President should obstruct and thwart constitutional threats, whether they emanate from the states, foreign nations, private parties, or Congress …

Introduction: The Last Word? The Constitutional Implications of Presidential Signing Statements

Abstract: It is not often in a republic more than 200 years old that a seemingly new constitutional topic emerges that proves worthy of widespread academic thought. Yet on February 3, 2007, legal and political scholars from around the nation converged on Williamsburg, Virginia, to participate in an unprecedented conference at the William & Mary School of Law: "The Last Word? The Constitutional Implications of Presidential Signing Statements." Never before had an entire academic symposium been devoted to this subject. Indeed, the time was not far gone when most Americans had never heard of a "signing statement." But 2006 had witnessed an extraordinary national conversation about this tool of executive power, its exponential growth in the hands of recent Presidents, and its implications for the future ofthe Constitution's system of checks and balances. This exploding attention to a previously obscure device reached a peak at the William & Mary Bill of Rights Journal's annual scholarly symposium. By then, the "signing statement" had become a household term, and its basic outlines were generally understood. In short, a signing statement is an official legal document issued by the President on the day he or she signs a bill. Filed in the Federal Register, signing statements lay out the President's interpretation of new laws and instruct the executive branch to interpret the laws in the same fashion. The device becomes controversial when Presidents use it to declare that various sections of the bills that they have just signed are unconstitutional and so do not need to be enforced as Congress wrote them. Moreover, the laws targeted in this fashion have most often been constraints on the President's own power as head of the executive branch or Commander in Chief, so this claimed power to-sign-but-not-enforce boils down to a claimed power to-sign-but-disobey. Or, as the practice's defenders prefer to say, it is a power to instruct the executive branch to "construe" such a law in a manner that would avoid the constitutional conflict that the President claims would otherwise exist - such as by reinterpreting a mandatory provision into a merely advisory one, or otherwise to discover in the statute an unwritten exception for the President to exercise at his own discretion. Presidents have issued signing statements challenging laws dating back to the nineteenth century. But the practice was rare until the Reagan administration' s second term, when attorneys in the Meese Justice Department proposed issuing them more often as a way to expand presidential power over the law.1 Since the mid-1980s, Presidents of both parties have used signing statements to challenge provisions in bills much more frequently. And under the Bush-Cheney administration, the practice reached an unprecedented level of intensity. By the time of this symposium, according to data compiled by conference participant Dr. Christopher Kelley of the Miami University in Ohio, Bush had used signing statements to target more than 1,100 distinct sections of bills - nearly double the roughly 600 such laws challenged by all previous Presidents in American history combined.2 Moreover, unlike his immediate predecessors, Bush had also virtually abandoned his veto power, signing every bill that reached his desk during his first term even as he used signing statements to eviscerate them.3 Observers outside the executive branch were slow to recognize what was happening. With the notable exceptions of Kelley and Professor Phillip Cooper at Portland State University's Mark O. Hatfield School of Government, most political and legal scholars gave virtually no thought to signing statements prior to 2006.4 Nor did the media or Congress pay any attention to the signing statements the White House had quietly filed during the first five years of the Bush-Cheney presidency. But that neglect came to an abrupt end in January 2006 after Bush issued a signing statement asserting that the President, as Commander in Chief, could set aside the so-called McCain Torture Ban,5 a putatively loopholes-free ban on cruel, inhumane, and degrading treatment by interrogators questioning detainees in the war on terrorism. …

If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice

Abstract: This Article analyzes whether President Bush's charitable choice executive orders, which permit religious organizations to apply for federal funds to deliver social services, are a permissible exercise of presidential power. Although Congress has enacted charitable choice provisions in some major statutes, including a 1996 welfare reform act, it debated but did not extend charitable choice throughout the entire federal human services bureaucracy, as the President's executive orders do. The core question this Article examines is whether President Bush's charitable choice executive orders constitute permissible gap-filling of ambiguous statutes under the Chevron doctrine or impermissible exercises of executive lawmaking under Youngstown Sheet & Tube Co. v. Sawyer. This Article analyzes possible statutory delegations to the executive branch, including human services statutes and federal procurement laws and concludes that they do not contain gaps that give policy-making discretion to the President. With regard to constitutional authority for the orders, recent Supreme Court case law makes clear that charitable choice programs are not constitutionally compelled. Article II of the Constitution, which gives the President the authority to take care that the laws are faithfully executed, is another possible source of authority, but its bounds are ill defined. Fans of a strong executive argue that presidential policy-making best serves constitutional values of accountability and efficiency. This Article tests these assumptions and finds that the charitable choice executive orders not only fail to further these values, but actually may undermine them. Accordingly, the Article concludes that the charitable choice executive orders constitute an unlawful aggrandizement of executive power. I signed an Executive order that said that all faith-based groups should have equal access to Federal money. . . . That's what the initiative said; it said, "Since Congress isn't moving, I will." - President George W. Bush1 INTRODUCTION When President George W. Bush took office in 200 1 , he immediately announced that he would expand the scope of charitable choice programs that provide public funds to religious organizations to tackle social problems.2 The political battle lines were soon drawn with proponents praising Bush for tapping into the redemptive power of spirituality and opponents prophesizing that the wall of separation between church and state would collapse.3 Yet despite the power of the bully pulpit, Bush's legislative proposals to expand charitable choice beyond the constraints of existing statutes floundered amidst congressional concerns that the bills permitted statesponsored employment discrimination against non-believers.4 Despite repeated attempts, Republican leaders in Congress could not push through the President's charitable choice proposals.5 Then, after the terrorist attacks of September 1 1, 2001, Bush's attention and that of the nation was inevitably drawn abroad. Yet the disappearance of charitable choice from the national headlines does not mean that charitable choice has disappeared. To the contrary, President Bush has forsaken Congress and delved into his executive toolbox - using executive orders, new rulemaking power, bureaucratic appointments, funding controls, the creation of a White House office on faith-based initiatives with sub-command posts in ten executive agencies, and other privileges of his executive authority - to refashion our nation's social service delivery system for the needy.6 The affected programs distribute over $7.7 billion a year, and thus, not surprisingly, millions of federal dollars are now flowing to religious organizations to pay for social services.7 Religious organizations have long played a central role in alleviating social problems, but charitable choice provides that churches need not set up separate, secular non-profit organizations to accept federal funds, a dramatic break from past practices. …

Saving Massiah from Elstad: The Admissibility of Successive Confessions Following a Deprivation of Counsel

Abstract: INTRODUCTION Fellers v. United States1 brought two issues before the Supreme Court. The first, quite elementary issue pertained to the substance of the Sixth Amendment entitlement to the assistance of counsel to protect against the government' s pretrial efforts to secure confessions.2 More specifically, the question was whether the guarantee of counsel is available only when officials employ "interrogation."3 The second, decidedly more complicated issue focused on the exclusionary consequences of a counsel deprivation.4 More particularly, the question was whether the doctrine of Oregon v. Elstad5 - a Fifth Amendment based, Miranda doctrine rule - governs in analogous Sixth Amendment situations.6 In a previous article, I analyzed the Court's decisive resolution of the substantive issue at length, promising to turn my attention later to the second, unresolved exclusionary rule question.7 This piece fulfills that pledge. The Sixth Amendment exclusionary rule question raised in Fellers is interesting and significant for a number of reasons. First, severe erosion of the protections afforded by the Miranda doctrine has made preservation of the Sixth Amendment safeguards against official efforts to secure admissions of guilt all the more critical. Second, the reaffirmation of a generous entitlement to pretrial assistance in Fellers could prove inconsequential if the evidentiary products of pretrial deprivations are liberally admitted at trial. Finally, the narrow question raised in Fellers affords a unique occasion to examine the somewhat murky underpinnings of the Elstad doctrine and the long-neglected justifications for Sixth Amendment exclusion. This examination yields useful insights into both the Miranda and Massiah doctrines and highlights critical differences between their respective "exclusionary rules." Part I of this Article includes a brief review of the Fellers case, summarizing the proceedings that occurred prior to the Eighth Circuit' s second opinion on remand from the Supreme Court. It then undertakes a detailed explanation of the Eighth Circuit's second effort to resolve Fellers' s claim. In Part ?, I explore and analyze the question that was remanded. After pausing to comment upon the Supreme Court' s decision not to confront the exclusionary rule issue, I explore the landmark opinion in Elstad and the insights into Elstad and Miranda exclusion furnished by a trio of Supreme Court opinions - those in Dickerson v. United States? Missouri v. Seibert? and United States v. Patane.10 I next discuss the underpinnings of Sixth Amendment based exclusion, documenting the unclarity and uncertainty generated by Supreme Court opinions and offering an explanation that is consistent with the essence of the pretrial guarantee of assistance afforded by the Massiah doctrine. With these premises all in place, it is possible to analyze the logic of the Eighth Circuit's remand opinion and to determine whether Elstad should, in fact, apply to Sixth Amendment deprivations. I. THE UPS AND DOWNS OF FELLERS V. UNITED STATES This preliminary section tersely describes the history of Fellers from the time of the indictment through the Supreme Court's reversal and remand. It then spends considerable time illuminating the Eighth Circuit's elaborate opinion on remand, an opinion that the Supreme Court declined to review. A. The Road from Indictment to Supreme Court Reversal John Fellers was indicted in federal court for conspiracy to distribute methamphetamine.11 The officers who went to Fellers' s home to arrest him explained that the indictment described his involvement with other individuals and named four such persons.12 Fellers responded "that he knew the four people and had used methamphetamine during his association with them."13 Later, at the county jail, officers delivered Miranda warnings.14 Fellers waived his rights, repeated the incriminating admissions he made in his home, and made a number of additional inculpatory statements. …

An International Human Right to Keep and Bear Arms

Abstract: INTRODUCTION Have all the rights in the Bill of Rights been translated into international human rights? One right that has not become an international human right is found in the Second Amendment of the United States Constitution. It provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."1 It is curious that no international human rights instrument protects the right to keep and bear arms for two reasons. First, self-defense is the only exception to the use of force set forth in the United Nations Charter in article 5 1.2 Second, representative democracy is intrinsic in every international human rights agreement that presupposes the people have the right to rise up and overthrow a non-democratic form of government. Part I of the Article analyzes the Second Amendment, which secures an individual right to keep and bear arms. This analysis shows the two main purposes of the amendment are to prevent government tyranny and secure the right to individual self-defense. Part II discusses international human rights agreements that support the prevention of government tyranny and that recognize some rights related to the right to individual self-defense. Part III discusses why an international human right to keep and bear arms is necessary. This part shows the international community is implementing more gun control laws, while government tyranny and crime against individuals are still prevalent worldwide, thus, people need arms as a means to protect themselves. Part IV describes what a treaty establishing an international human right to keep and bear arms should provide. This part describes what the purpose of the treaty should be, as well as what specific rights should be secured. Finally, it describes what level of gun regulation would be permissible for states that sign the treaty. I. THE AMERICAN RIGHT TO KEEP AND BEAR ARMS The Second Amendment must be analyzed to determine if it secures an individual right to keep and bear arms or just a collective right of a militia to keep and bear arms. I analyze the amendment's text, American cases interpreting it, and its historical understanding. A. Text The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."3 This text reveals an individual right to keep and bear arms exists.4 "Rights" in the American Bill of Rights belong to individuals.5 The government does not have rights,6 it has "powers" or authorities.7 Nothing in the text suggests the right pertains solely to the militia; instead, it applies to the people.8 The term "the right of the people" appears in the First and Fourth Amendments of the United States Constitution as well.9 Those rights-free speech, free exercise of religion, assembly, petition, and freedom from unreasonable searches and seizures-unquestionably are individual rights. 10 It would be strange to think the same words constitute an individual right in the First and Fourth Amendments and something different in the Second Amendment.11 Further, the rights in at least the first nine amendments are individual rights.12 The Tenth Amendment, placed at the end of the Bill of Rights, reserves remaining powers to the states.13 If the Second Amendment protected a statemilitia power it would have been more properly placed at the end of the Bill of Rights after the listing of individual rights and with the Tenth Amendment's reservation of powers to the states. 14 Since the Second Amendment speaks to "the right of the people" in the beginning of the Bill of Rights' listing of individual rights, a natural reading of it leads to the conclusion that it is an individual right.15 The use of the word "keep" also shows the Second Amendment secures an individual right. The plain meaning of "keep" arms is individual in nature; there is no indication in the text that the right is limited to keeping arms while engaged in military service or as a militia member. …

Stop Restricting Speech and Educate the Public: A Review of the ABA's Proposed Campaign Activity Canon of the Model Code of Judicial Conduct

Abstract: INTRODUCTION Imagine a candidate in an election for county judge. As part of his campaign, the candidate decides to attend local events to which he has been invited. The candidate attends both Republican and Democratic events in the neighborhood. In addition, his daughter makes appearances and speeches on his behalf at other local events sponsored by both political parties. For some reason, the sponsors do not invite his opponent, but the candidate still attends to further his campaign because he would like to win the election. The candidate wins the election, but ethical charges are filed against him. Apparently, attending campaign events while running for election is a violation of the state's Code of Judicial Conduct if the events are political. As a consequence, the judge receives a public reprimand for taking steps that would aid him in his campaign. The previous scenario occurred in Florida during the 2002 election, and the Florida Supreme Court upheld the Judicial Qualifications Commission's recommendation for a public reprimand.1 The judge was sanctioned for doing what the election required - explaining to the public why it should vote him into office. That information usually includes the candidate's position on current issues and promises for the future. Without this information, the public is left to choose candidates based on nothing but "personal appearances."2 However, a problem seems to arise when the sought-after office is that of a judge. Although all federal judges are appointed, judicial elections are a popular way of selecting state judges, with thirty states choosing this method over an appointment or merit selection system.3 Differing from other officials, judges "are expected to refrain from catering to particular constituencies" and are expected to be "independent" and "impartial."4 A judicial candidate who gives his position on current issues may threaten "this appearance of impartiality."5 Trying to tend to the problem between informing voters and maintaining impartiality, the American Bar Association (AB A) created a code to restrict campaign speech and behavior.6 The 1924 Canons of Judicial Ethics lasted almost fifty years, but in 1972, the ABA made changes to the rules and adopted the Model Code of Judicial Conduct.7 The ABA subsequently revised the Code in 1990. Since 1972, almost every state has adopted a variation of the Code.8 The state codes include sanctions for candidates who violate the provisions. Some of the various violations of which candidates have been accused seem trivial, but others are quite serious.9 The current codes, in the states and the Model Code, usually have five or seven canons. In the Model Code, Canon 5 pertains to judicial campaign activities, with the first clause being the "political activity" clause, which regulates candidate conduct in and for political organizations.10 The subsequent clauses are similar and regulate a candidate's speech. They are the "pledges or promises" clause and the "commit" clause, and they apply to statements the candidate is not allowed to make while campaigning.11 The 1972 Code contained an "announce" clause, which also applied to campaign speech.12 This clause, however, was later found to be unconstitutional by the U.S. Supreme Court and has since been removed from the modern version of the Code.13 Today's codes also contain a "misrepresent" clause. This clause prohibits candidates from misrepresenting information regarding either themselves or their opponents.14 The last significant provision is the "solicitation" clause, which controls a candidate's fundraising and solicitation.15 Although the Code was meant to "alleviate the tensions between the judge's role and the reality of political campaigns," some courts have started to view the restrictions "with increasing skepticism."16 The most influential decision was the Supreme Court's ruling in Republican Party of Minnesota v. White ("White F), which declared that Minnesota's announce clause violated the First Amendment. …

Recognizing the Grey: Toward a New View of the Law Governing Digital Music Sampling Informed by the First Amendment

Abstract: A trio of rappers from New York,1 working with a pair of producers from California,2 broke new musical ground in 1989 with the release of the album Paul's Boutique.3 The Beastie Boys and Dust Brothers wove together a complex tapestry of samples and highly referential raps4 the likes of which the music industry had never seen.5 Fortunately for the Beasties and their producers, they released the album at a time when the laws governing sampling were not clearly defined.6 Nor were they strictly enforced. With the subsequent tightening of laws governing the use of sampling in music,7 however, it became unlikely such an album would ever be seen again. Fifteen years later, an equally ground-breaking, sample-rich album surfaced. In early 2004, DJ Danger Mouse8 released The Grey Album, mixing the vocals of rapper Jay-Z's The Black Album with the instrumentation of The Beatles' self-titled album commonly referred to as The White Album.9 Producing just 3,000 copies of the album and intending it to remain "underground," Burton never thought he would need permission to use the other artists' material.10 But once the album found its way to the Internet, it reached an audience far wider than Burton had envisioned.11 The album met immediate critical acclaim, with Rolling Stone calling it an "ingenious hip-hop record that sounds oddly ahead of its time."12 With this wider audience and critical acclaim, it was soon no secret that Burton never received permission to use The Black Album or The White Album in his new composition. 13 For their part, Jay-Z and his record label, Roc-A-Fella Records, did not object to Burton's use of The Black Album; in fact, they tacitly encouraged the use of the album in remixes, going so far as to release a vocals-only version that made mixing it with other music all the easier. 14 But EMI, which represented the owner of the Beatles' sound-recording copyrights, Capitol Records, and Sony Music/ATV Publishing, owner of the compositions on The White Album, sent Burton letters claiming he was infringing upon their copyrights and ordering him to cease and desist in distributing The Grey Album.15 The music industry thus demonstrated that it was determined to protect its monopoly on the music by hook or by crook. Neither EMI nor Sony Music/ATV Publishing filed suit against Burton or those distributing The Grey Album online because they complied with the companies' ceaseand-desist letters and discontinued distribution of The Grey Album.16 Although music activists staged a one-day protest by putting the album back online, and links to download the album remain in a few hard-to-reach corners of the Internet, for the most part, the record industry succeeded in burying The Grey Album under a pile of dusty legal arguments.17 Given the record industry's threats of legal action, and given its greater ability to outlast any opponent it would be likely to face in such litigation, it is unlikely that such a sample-rich album will ever be seen again - that is, unless the law evolves to allow for more creativity and freedom in the art. This Note addresses what happened to the law governing the use of samples in music during those fifteen years between Paul's Boutique and The Grey Album, how it has succeeded, and how it may be improved. It begins by defining and contextualizing the musical technique known as sampling and by discussing the technology and the cases that have helped shape the law in recent years. Part I takes a closer look at the law governing sampling in music, including its constitutional and statutory bases. More specifically, this Note looks at recent developments in the case law as well as the goals the law seeks to achieve. In Part II, this Note revisits The Grey Album events as a case study in the law governing sampling. It addresses how the law succeeded and failed with respect to that work and why, given the current state of the law, such a work might not appear again. Part III considers how the law governing sampling in music is broken - how, in its current state, the law fails to meet its goals. …

Garcetti V. Ceballos: Stifling the First Amendment in the Public Workplace

Abstract: INTRODUCTION On May 30, 2006, more than 19.4 million public employees nationwide1 lost a battle in the war being waged against free speech. Upon deciding Garcetti v. Ceballos, the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."2 The subsequent chilling effect this decision will have on the most honest of civil servants has the potential to result in both public and private sector conduct going unreported.3 The First Amendment famously provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."4 The Court has repeatedly announced that First Amendment protection includes "the receipt of information and ideas as well as the right of free expression," because "public debate must not only be unfettered; it must be informed."5 Public employee speech must be considered an essential element of this protection because "[w]hen government employees are silenced, it is the public that is the principal loser."6 This Note advocates a return to the balancing test enunciated in Pickering v. Board of Education1 as opposed to the per se rule adopted by the Court in Garcetti. Part I discusses the factual background and legal argument made by the Court in Garcetti.8 Part II reviews public employee speech jurisprudence throughout the history of the Court.9 Part HI discusses the aftermath of the Garcetti decision, including the impact the decision will have on government whistleblowers, prosecutors, and public school teachers.10 Part HI also presents and rebuts the policy considerations in favor of the per se rule adopted by the Court.11 The Note concludes that the best way to protect the constitutional guarantee of freedom of speech for public employees is to reinstate the Pickering balancing test, which weighs the employee's interest in free speech against the employer's interest in operating an efficient workplace.12 I. THE CASE A. The Facts The factual background of Garcetti deserves recitation in order to gain an accurate picture ofthe speech that the Court deemed unprotected and the actions that resulted. In 1998, Richard Ceballos was employed as a deputy district attorney at the Los Angeles County District Attorney's Office.13 He served as a calendar deputy which gave him supervisory responsibility over two to three deputy district attorneys.14 A defense attorney in a case being prosecuted by the District Attorney's Office informed Ceballos that he believed that one of the deputy sheriffs may have lied in an affidavit necessary to gain a critical search warrant.15 The defense attorney asked Ceballos to investigate.16 After conducting an investigation, Ceballos determined that the affidavit "at the least, grossly misrepresented the facts."17 Following this discovery, Ceballos authored a memorandum addressed to the defense attorney, the parties in the case, and his supervisor, District Attorney Gil Garcetti.18 The memo outlined Ceballos' concern regarding the affidavit and recommended that the District Attorney dismiss the case. 19 After a heated discussion and pressure from the Sheriffs Office, the District Attorney chose to disregard Ceballos' recommendation and proceed with the case.20 Ceballos was then called to testify for the defense at a hearing on the defense's motion to traverse regarding the observations Ceballos made in the memorandum about the affidavit and the information uncovered during his investigation.21 Following the hearing, a number of retaliatory employment actions occurred, leading Ceballos to file suit.22 Ceballos was reassigned, demoted to a position as a trial deputy, transferred to another courthouse,23 and denied a promotion. …

A Well-Regulated Militia: The Founding Fathers and the Origin of Gun Control in America

Abstract: A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGIN OF GUN CONTROL IN AMERICA By Saul Cornell.[dagger] New York: Oxford University Press, 2006. Pp.277. $30.00 "Every thing of a controvertible nature," James Madison noted regarding his proposed Bill of Rights, "was studiously avoided."1 We may wonder what he would think of the 217 years of controversy that followed. For most provisions of the Bill of Rights, the controversies have focused upon their boundaries and limitations. What is an "unreasonable search," a "compelled" self-incrimination, an "establishment" of religion? In the case of the Second Amendment2 the dispute is far more fundamental, going to the very question of whether it has any meaningful existence. Here, the conflict has been one between variants of two viewpoints: (1) the "individual rights" view,3 which has two variants: (a) The "standard model," which sees the Second Amendment as guaranteeing a personal right on par with other Bill of Rights protections; (b) What I have termed the "hybrid" view, which sees it as guaranteeing an individual right but limited to private bearing of arms suited for military or militia use;4 and (2) the "collective rights" view which likewise has two variants: (a) The traditional "collective rights" approach, which sees the amendment as protecting only a state interest in an organized militia, i.e., National Guard units;5 and (b) What the Fifth Circuit has termed the "sophisticated" collective rights approach, which sees it as protecting individual activity but only if directly linked to organized militia missions.6 As the first view treats the Second Amendment as a meaningful restriction on legislative action, while the second treats it as fundamentally meaningless,7 the conflict is absolute. The history of the understanding of the American right to arms has followed an unusual course in which the advantage swayed back and forth between the two schools of thought. At its outset, the existence of an individual right was taken for granted by courts,8 commentators,9 and the general public10 throughout the eighteenth and nineteenth centuries. The collective rights view was first enunciated, by a state court, in 1905.11 1 In 1939, the United States Supreme Court declined to accept that approach in United States v. Miller;12 soon thereafter, however, two Circuits read Miller either as endorsing the collective rights approach13 or as setting only a threshold test that permitted them to go farther and accept such an approach.14 Most of the remaining circuits followed,15 and this reading of Miller became a matter of "received wisdom" to the point in which some decisions suggest the authors had not bothered to read Miller before interpreting it.16 Even as late as the early 1960s, Supreme Court justices and an article selected by the American Bar Foundation as the winner of its constitutional law essay competition were willing to acknowledge the essentially individual nature of the right protected by the Second Amendment, but that changed by the end of the 1960s. . . . It is fair to say that by the 1970s the collective or states' rights theory had won the day with most jurists and legal and lay commentators who opined on the issue. . . . Throughout the 1970s and 1980s, expressed opinion on the part of the elite bar, the bench, and the legal academy was firmly on the side of those who denied the existence of an individual right to arms.17 The tide was, however, changing once again. When first I published on the subject in 1 974, 18 there were but a few scholarly treatments in print and none of any particular depth.19 Over the next decade, scholarship in the field expanded, largely as a result of the efforts of Stephen Halbrook, the late David Caplan, and Joyce Malcolm.20 In 1983, Don Kates published a lengthy breakthrough article in the Michigan Law Review.21 Thereafter, scholarly treatment of the individual rights approach grew exponentially. …

The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment

Abstract: In the past year, there have been many revelations about the tactics used by the Bush administration to prosecute its war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This Article focuses on the revelation and widespread criticism of the Bush administration's operation of a warrantless electronic surveillance program to monitor international phone calls and e-mails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection infrastructure to further this effort. Fueling the controversy are undeniable similarities between the current surveillance program and the improper use of electronic surveillance that was listed as an article of impeachment for former President Richard M. Nixon. President Bush argues that the surveillance program passes constitutional inquiry based upon his constitutionally delegated war and foreign policy powers, as well as the congressional joint resolution passed following the September 11, 2001 terrorist attacks. These arguments fail to supersede the explicit and exhaustive statutory framework provided by Congress and amended repeatedly since 2001 for judicial approval and authorization for electronic surveillance. The specific regulation by Congress based upon war powers shared concurrently with the President provides a constitutional requirement that cannot be bypassed or ignored by the President. The President's choice to do so violates the Constitution and risks the definite sacrifice of individual rights for speculative gain from warrantless action. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. - President George W. Bush1 We join with you in the conviction that terrorism must be fought with the utmost vigor, but we also believe we must ensure this fight is conducted in a manner reflective of the highest American values. - Michael S. Greco2 INTRODUCTION President George W. Bush responded to revelations that his administration conducted warrantless electronic surveillance of American citizens by stating, "As President and Commander in Chief, I have the constitutional responsibility and the constitutional authority to protect our country. ... So, consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to Al Qaida ___ "3 President Bush attempted to defend this statement one month later by stating, "[0]ther Presidents have used the same authority I've had, to use technology to protect the American people."4 This latter statement is certainly accurate, though its truth is both eerie and unsettling. Most notably, the argument that authorization for the warrantless surveillance is provided directly from the constitutional powers granted to the President harkens back to President Richard M. Nixon' s statement that, "It' s quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation' s security are lawful, but which if undertaken by private persons, are not."5 The comparison between the actions taken by President George W. Bush and Richard M. Nixon are not merely academic but are unnervingly similar in substance, scope, and perceived authority. Both included warrantless electronic surveillance of American citizens. Both were justified by the relative administrations through an appeal to national security imperatives. Both resulted in public outcry and congressional inquiry.6 President Nixon acted in the context of a nation transfixed with the war in Vietnam.7 While the nation fixated on the deaths of over 50,000 Americans, President Nixon was preoccupied with the massive domestic protests that swept the country. …

Presidential Signing Statements and the Rule of Law as an "Unstructured Institution"

Abstract: Both inside and outside the academy, a debate is raging in the United States about the relative merits of what might be called presidentialist and pluralist interpretations of the separation of powers. Presidentialism imagines that the Constitution vests in the President a fixed and expansive category of executive authority that is largely immune to legislative control or judicial review.1 Pluralism sees checks and balances as the principle animating the separation of powers.2 It disputes the fixed nature of executive power.3 It sees questions of separation of powers interpretation as calling regularly for the careful calibration of each branch's authorities, all in the name of government accountability to the law and to the citizenry.4 Aggressive presidentialism was a pillar of constitutional understanding in the administrations of both Ronald Reagan and George H.W. Bush. The Clinton administration sometimes tended towards presidentialism in its handling of regulatory oversight, although its professed constitutional doctrine was more often pluralist in tone. Today, we are six years into the most radically presidentialist administration in history, the presidency of George W. Bush. It is an administration that has frequently announced the substance of its views on executive power through an unusual medium - statements that the President releases in connection with his signing proposed legislation into law. What I want to argue here, however, is an even subtler connection between the radical presidentialism of the current Bush administration and its practice with regard to presidential signing statements. In particular, I want to argue that the Bush administration's use of signing statements embodies a disturbingly thin and formalistic view of the rule of law that goes hand-in-hand with its vision of the separation of powers. The Bush administration's signing statement practice has been notable for two distinct reasons. The first is the extremity ofthe constitutional vision that these statements typically assert, especially with regard to the so-called "unitary executive."5 The second is their sheer volume, unmatched in the entire history ofthe executive.6 Given the various other ways in which the administration has professed allegiance to its radical view ofthe separation of powers, the substantive content ofthe Bush signing statements is not surprising. But the obvious question is, why so many? To appreciate the puzzle, we have to recall that these views, even if earlier GOP Presidents pushed them less aggressively, were certainly held also by leading legal thinkers under both Presidents Reagan and Bush 4L7 So why does President Bush 43 - as opposed to Reagan or Bush 41 - feel compelled so often to resort to signing statements in order to express his extreme constitutional theories? Bush's recent GOP predecessors, facing Congresses controlled by Democrats, certainly had less political room to work their will than he does. One might think that they would have been the more strident in asserting their prerogatives of unilateral action. Is it not odd that President Bush would be so insistent on his prerogatives in the face of Congresses entirely in GOP control from 2003 to 2006,8 and partially in GOP control from 200 1 to 2002?9 To grasp this phenomenon, I think we have to understand that presidentialism and pluralism can each operate not just as a constitutional philosophy, but also as an ethos, that is, as a fundamental element ofthe spirit with which the government conducts business. The Bush administration has operated until recently against the backdrop of Republican-controlled Congresses and a Supreme Court highly deferential to executive power. This political context has enabled the Bush administration not only to elaborate presidentialism as a theoretical stance but also to operate very largely within the premises of presidentialism, as if presidentialism really were what the Constitution envisions. …

Presidential Signing Statements and Congressional Oversight

Abstract: Two thousand and six was the year of the presidential signing statement. This constitutional cause celebre commenced on the penultimate day of 2005, when President George W. Bush signed a defense appropriations bill into law and simultaneously issued a signing statement cryptically declaring that the McCain Amendment - a provision in the bill prohibiting "cruel, inhuman, or degrading treatment" of any persons in U.S. custody anywhere1 - would be construed "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief ... [in order to] protect[] the American people from further terrorist attacks."2 What did this mean? In response to press inquiries, senior administration officials confirmed that the purpose of the language was to reserve the right to authorize harsher methods of interrogation in situations concerning national security.3 Thus, "never" became "maybe sometimes."4 Professor Marty Lederman quipped that the President's December 30th signing statement was "the commander-in-chief version of 'I had my fingers crossed.'"5 Senator McCain, among others, was not amused.6 Four months later, the signing statement again made front page news (and was the focus of myriad op-ed pieces) after Charlie Savage published an extended article in The Boston Globe chronicling President Bush's apparently unprecedented use of constitutional signing statements.7 In June, American Bar Association (ABA) President Michael Greco appointed a bipartisan, blue ribbon task force to review and report on the matter, which it in turn did near the end of July.8 In the meantime, the Senate Judiciary Committee held a hearing at which the administration's use of signing statements was attacked by Republican and Democratic senators alike.9 Then, in the immediate wake of the release of the ABA Task Force Report,10 the Chair of the Senate Judiciary Committee, Arlen Specter, took to the Senate floor to introduce a bill (Senate Bill 3731) entitled the Presidential Signing Statements Act of 2006.11 Both the ABA Task Force's recommendations and Senator Specter's bill had as their centerpiece congressional creation of a cause of action for a federal court' s declaratory judgment concerning the legal validity of future presidential signing statements.12 The ABA Task Force Report, crafted by a bipartisan committee, proved contentious in a most bipartisan manner, drawing fire from not only the administration's stalwart allies but from its critics as well.13 Although Senate Bill 3731 died with the 109th Congress, Senator Specter reintroduced a revised version ofthe bill during the 1 10th congressional session.14 But the debate to date has largely side-stepped the wisdom ofthe proposed resort to federal judicial declaration. Indeed, the successful push in August 2006 at the ABA' s annual meeting to amend the resolutions the Task Force proposed, prior to their adoption by the ABA's House of Delegates, left the fifth resolution undisturbed.15 That resolution called upon Congress to authorize suits for declaratory judgments on the legal validity of future signing statements.16 This Essay argues, however, that the proposed legislation would be ill-advised and counter-productive. Worse, it would exacerbate the underlying institutional infirmities that have brought us to the present precipice. The inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President' s constitutional obligations is premised on an unidentified, unjustified (and in my view unjustifiable) assumption about the relative roles of Congress and the Court. Specifically, the fifth ABA resolution and Senate Bill 3731 share the premise that the Court, rather than Congress, is responsible for ensuring that the President remains subject to the rule of law.17 This premise has matters backwards. Congress has far greater competence and legitimacy than do the courts to undertake the awesome task of compelling presidential compliance with the Constitution and laws of the United States. …

Presidential Signing Statements in Perspective

Abstract: Presidential signing statements that object to putatively unconstitutional statutory provisions, or interpret them to avoid constitutional difficulties, have long been common and occasionally controversial. After an outburst of sensational journalism last year,1 the American Bar Association (ABA) followed up with a report accusing President Bush of using these statements to threaten what it called "the rule of law and our constitutional system of separation of powers."2 In this brief symposium contribution, I hope to indicate why the ABA' s position is analytically untenable and irresponsibly hyperbolic, and also to raise a more interesting set of questions about the similarities and differences between the ways that courts and Presidents do and should go about the task of interpreting the Constitution and laws. I. THE ABA REPORT The key conclusion in the ABA Report is that the President has what the authors call a "constitutional obligation to veto any bill that he believes violates the Constitution in whole or in party3 When a President signs a bill but announces that he regards some provision in it as unconstitutional and unenforceable, or interprets the provision in a manner inconsistent with what the authors call "the will of Congress," the Report contends that he is exercising an unconstitutional line-item veto.4 The authors accuse President Bush of engaging in this lawless behavior on a massive scale.5 The Bush administration counters that the President is obliged to defend the Constitution against Congress and stresses its claim that Bush is not behaving differently in any significant way from many of his predecessors, including Bill Clinton.6 This claim appears plausible, and it may well be true, but it is not easy to assess exactly how much continuity actually exists.7 Comparing the Bush record with that of previous Presidents is a laborious undertaking, and some important data may not be publicly available. Absent a detailed study of the evidence, one might be tempted to dismiss the Bush administration' s protestations as a lot of patently self-serving rhetoric, especially when one looks at the ABA Report's star-studded roster of signatories: the dean of the Yale Law School; a former dean of Stanford Law School; a former chief judge ofthe United States Court of Appeals for the District of Columbia Circuit; a former Director of the FBI, who is also a former chief judge of a federal district court; a Harvard Law School professor; a professor from the George Washington University Law School; and a lecturer at Princeton University; along with a number of prominent practitioners and pundits.8 Could so many highly regarded representatives of the elite legal establishment be completely off base? If so, is it perhaps possible that the ABA Report was driven primarily by political animus against Bush rather than by any real study of the Constitution or concern for the rule of law? Maybe.9 It is not just Bush administration spokesmen and their conservative allies10 who have disputed the ABA Report. A number of prominent Democrats have attacked the Report as well - including Laurence Tribe and several former Clinton administration officials, the most prominent of whom is Walter Dellinger.1 x According to these critics, the ABA is fundamentally misguided in its claim that no President is permitted by the Constitution to declare that he will refuse to enforce unconstitutional provisions in bills that he signs into law. These critics regard the ABA Report's focus on signing statements as an attack on what Professor Tribe calls a "phantom target."12 So far as I am aware, the signatories of the ABA Report have not pointed out any flaws in the arguments of these Democratic critics. And I think it is safe to say that when Professors Tribe and Dellinger feel obliged to denounce an attack on the Bush administration, that attack probably occupies a region of ideological space populated by very few self-evident truths. …

"Sacrificing the End to the Means": The Constitutionality of Suspicionless Subway Searches

Abstract: INTRODUCTION The New York City subway system began transporting passengers in 1904.1 Today the system operates 24 hours a day, carrying on average 4.9 million daily passengers across 26 subway routes to 468 stations.2 Undoubtedly, the subway is an integral component of New York City's culture and history, and an engine of its enormous economy. It is also inherently difficult to secure. The subway transports a high volume of passengers in an enclosed space, has numerous access points, and does not require advance ticket purchase or passenger identification.3 In light of these vulnerabilities and because of its cultural and economic importance, it is patent that New York City's subway is a prime terrorist target. In fact, police have already thwarted several plots to plant explosives in the subway system.4 Thus far, New York City has protected its transit system from attack. Other cities, however, have not been so fortunate. In March 1995, religious extremists attacked the Tokyo subway system with nerve gas, killing 12 people and injuring 6,000.5 In 2004, terrorists detonated bombs aboard commuter trains in Moscow and Madrid, claiming approximately 230 lives and wounding more than 1,500.6 On July 7, 2005, bombs exploded on three subway trains and on a double-decker bus in London, killing 52 people and injuring more than 700.7 Two weeks later, a second series of four attempted detonations led to a partial evacuation of the London Underground.8 In that attack, the bombs' detonators failed to ignite the explosives and no one was injured.9 Most recently, in July 2006, terrorists detonated bombs aboard seven commuter trains in Mumbai, killing more than 200 people and wounding at least 800. 10 After terrorists attempted a second attack on London's subway system, New York City Mayor Michael E. Bloomberg authorized the New York City Police Department (NYPD) to begin random searches of backpacks and packages brought into the New York City transit system.11 Shortly after being implemented, the NYPD announced that it would enforce the container inspection program indefinitely.12 At security checkpoints in New York subways, police use a numerical formula to determine the frequency of passengers subject to inspection, such as one in every five to ten passengers carrying a bag.13 Selected passengers are asked to open their bags and manipulate the contents for a visual inspection before they go through the turnstiles.14 Those that do not consent to the inspection are not permitted to enter the transit system, but are allowed to leave without further questioning.15 Police may not search "wallets, purses or other containers that are too small" to hold explosives.16 They also may not intentionally look for other contraband, read any written material, or request a passenger's personal information.17 Inspections are typically accomplished in a matter of seconds.18 The public is notified of checkpoints by prominently displayed posters and announcements made at stations and on subway trains.19 Inspections take place daily, but given "available resources and the scope of the subway system, not all stations have inspections every day."20 To enhance the program's deterrent effect, the NYPD does not publicly disclose the number and location of stations where inspections occur each day, or the numerical frequency of inspections.21 On August 4, 2005, the New York Civil Liberties Union (NYCLU) filed a lawsuit against the City of New York and the Commissioner of the NYPD contending that suspicionless searches of subway riders violate the Fourth and Fourteenth Amendments.22 The NYCLU filed the lawsuit on behalf of five subway passengers, including the son of a retired police captain and a naturalized American citizen.23 The plaintiffs sought both declaratory and injunctive relief.24 In December 2005, after a two-day bench trial, U.S. District Court Judge Richard M. Berman found the container inspection program constitutional and dismissed the NYCLU' s complaint with prejudice. …

Second Class Citizen Soldiers: A Proposal for Greater First Amendment Protections for America's Military Personnel

Abstract: "Are [the generals] free to speak? How come every time a general retires he starts trashing the president's war policy, but doesn't say a word until he retires? In other words, do we have to wait for retirement to hear what these guys think?"1 MSNBC's Hardball host Chris Matthews posed these questions to House Majority Leader John Boehner in a September 2006 discussion on whether the United States had sufficient troops on the ground in Iraq to control growing civil violence.2 Matthews' s query, raised as a challenge to the Bush administration' s willingness to incorporate military advice into Iraq military strategy, highlighted one of the effects of free speech restrictions on members of the military. Regulations restricting the free speech of active duty military members, both inside and outside the Une of duty, are not new. Congress adopted the Uniform Code of Military Justice (UCMJ) in its modern form in 1950.3 The UCMJ governs all active duty military members, reservists, and, in certain circumstances, retired members.4 Several UCMJ articles either directly limit free speech or serve as a means to enforce organizational policies that limit free speech.5 1 Hardball with Chris Matthews (MSNBC television broadcast Sept. 27, 2006), transcript available at http://www.msnbc.msn.com/id/15045586. 2 Id. 3 Pub. L. No. 506, 64 Stat. 107 (1950) (codified as amended at 10 U.S.C.A. § 801-940 (West Supp. 2007); see also David A. Schlueter, Military Criminal Justice: Practice and Procedure 40 (6th ed. 2004). 4 MANUAL FOR COURTS -MARTIAL: UNITED STATES, Rule 202 (2005 ed.). Under the purview of "military," the UCMJ applies to members of the Army, Navy, Marines, Air Force, and the Coast Guard. The Coast Guard, under the Department of Homeland Security rather than the Department of Defense, is defined as a military service by law in 14 U.S.C.A. § 1 (West Supp. 2007). 5 Uniform Code of Military Justice [hereinafter UCMJ] art. 88, 10 U.S.C. § 888 (Supp. II 2002) ("Contempt toward officials"); UCMJ art. 92, 10 U.S.C. § 892 (2000) ("Failure to obey order or regulation"); UCMJ art. 133, 10 U.S.C. § 933 (2000) ("Conduct unbecoming an officer and a gentleman"); UCMJ art. 134, 10 U.S.C. § 934 (2000) ("General article," which includes service-discrediting conduct). These restrictions traditionally go unnoticed during times of relative peace but receive more scrutiny during conflicts. The last flurry of challenges to restrictive military speech policies occurred during the Vietnam War.6 As the Iraq War grows increasingly unpopular, a repeat of Vietnam-era military free speech debate threatens. The subject flared when a group of highly distinguished retired generals criticized the Bush administration's handling ofthe conflict in 2003.7 Former ground commanders in Iraq and even active duty military members, speaking on the condition of anonymity, publicly challenged former Secretary of Defense Donald Rumsfeld's ability to successfully lead the military and questioned administration strategy.8 The debate over free speech in the military is also highlighted by public scrutiny of other military-specific First Amendment restrictions. Focus on the highly contentious "Don't Ask, Don't Tell" policy on homosexuality catapulted the name of Navy Petty Officer 1st Class Rhonda Davis into national headlines when she was discharged from the Navy for wearing her uniform to a same-sex marriage support rally and announcing on a radio interview that she was gay.9 Christian groups, especially evangelical Christians, are also pressuring the military to ease restrictions on the content of prayers given at military functions.10 These arguments are countered with concerns over the separation of church and state and the freedom not to worship.11 The military response to charges of First Amendment violations is consistent. Defenders argue that the UCMJ and military policies implemented under it exist "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. …

Is Silence Sacred? The Vulnerability of Griffin v. California in a Terrorist World

Abstract: INTRODUCTION The Supreme Court's interpretation of the Fifth Amendment's privilege against self-incrimination (hereafter "the privilege") has been neither clear nor consistent.1 For one thing, as many commentators have noted, analysis of the privilege has been "tyrannized by slogans."2 The Court's privilege jurisprudence has been marked by broad, high-sounding rhetoric that has not always matched an equally broad interpretation of the right. For another, the Court has exhibited two distinct and inconsistent approaches to the privilege. One approach interprets it broadly as the linchpin of an accusatorial system that insures that the government bears the burden of proving guilt without any help from the defendant.3 The other approach, based on text and history, interprets the privilege more narrowly as a protection against coercive methods of interrogation only.4 While in practice the two approaches often produce the same result, they clash in one important context - when the government is allowed to use a defendant's silence at trial as substantive evidence of guilt. Under the Supreme Court's decision in Griffin v. California,5 that use is not allowed: a prosecutor's comment to the jury on a defendant's failure to testify violates the privilege.6 In its most recent foray in this area, its 1999 decision in United States v. Mitchell,1 the Supreme Court extended Griffin's no-comment rule to sentencing, refusing to allow the sentencing court to rely on a defendant's silence to prove facts relevant to sentence.8 The Court held, inter alia, that the refusal to allow use of a defendant' s silence to prove the prosecution's case was one of the hallmarks of the U.S. criminal accusatory process.9 Justice Scalia dissented, joined by Chief Justice Rehnquist, Justice O'Connor and Justice Thomas.10 Justice Scalia argued that Griffin lacked historical and textual support, had been a constitutional "wrong turn," and should not be extended.11 Justice Thomas also dissented, but he argued that Griffin should be overruled outright.12 As the Mitchell decision indicates, several reasons demonstrate the need to reevaluate the constitutional basis for the no-comment rule at this time. The first reason is the uncertain mooring of the privilege doctrinally, as represented in the opinions in Mitchell. The second reason is the narrow majority in Mitchell for extending Griffin, the explicit or implicit willingness to overrule Griffin by two members of the Court, and the recent departure and replacement of two Justices in the Mitchell majority. The third reason is the privilege's perpetually disfavored status as an anti-truth-seeking right.13 Finally, of course, this disfavored status is particularly dangerous in light of the modern threat of domestic terrorism.14 A re-evaluation of the no-comment rule may be significantly aided by examining the United Kingdom's approach to the privilege, particularly its approach to using a defendant's silence at trial. Unlike the situation in the United States, in the United Kingdom, where there is no written constitutional text, the fact-finder is allowed to use a defendant' s silence as proof of guilt. 15 While the United States and the United Kingdom share a significant history with respect to the privilege, a history that established the right as an integral part of both criminal processes, the histories diverge following the colonial period. From that point onward, the United States construed the privilege more broadly as a limitation on the powers of government.16 This uniquely U.S. experience - and one that continued into the twentieth century - explains, to some extent, the differences that exist today. The other explanation is the United Kingdom's experience with Northern Ireland terrorism, an experience that ultimately changed not only criminal procedures relating to terrorists, but mainstream U.K. criminal procedure as well. It remains to be seen whether the U.S. experience with terrorism will lead to similar changes here. …

A Child's Right: What Should the State Be Required to Provide to Teenagers Aging out of Foster Care?

Abstract: Teenagers aging out of foster care face harms that can be traced to their lack of preparation for adulthood. This Article argues that teenagers in foster care have a substantive due process right to services not only while they are in state custody but also after they age out of care. The lower federal courts have interpreted the Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services to mean that foster children-like prisoners and mentally retarded people held in state custody-have a substantive due process right to personal safety. What the courts have not considered is how these rights apply to foster teenagers. For teenagers, the primary risks of harm are associated with leaving care, not harm from within the system. Foster teens should have a recognized right to receive services to prepare them for adulthood, at least until age eighteen and potentially into adulthood. If they do not receive such services and then suffer harm as a result of the denial, they should be able to sue for a violation of their constitutional rights. We looked to the streets for meaning in our lives. We have to make a transition from that mind state. We have to understand our values and morals, or we're going to always do wrong. I try to get the young guys to visualize themselves in a leadership role after they get out. - Jeffrey Williams1 INTRODUCTION Jeffrey Williams ran away from foster care as a teenager. He was not prepared for adulthood at the facility where he had lived with his brothers. Before his eighteenth birthday, Jeffrey was incarcerated. One of his brothers was dead.2 Each year, between 18,500 and 25,000 children "age out" of foster care.3 Most states only provide such care until a child reaches age eighteen.4 An additional 5,200 or so children run away before they age out of care.5 These teenagers face harms unlike those facing other teens. These harms, like Jeffrey's, can be traced to their lack of preparation for adulthood. At age seventeen, the average foster teen reads at the seventh grade level.6 More than half of them in one study reported having been arrested.7 Indeed, a few years after leaving foster care: * Only slightly more than half of these young people have graduated from high school, compared with 85 percent of all youth eighteen to twenty-four years old. * One-fourth have endured some period of homelessness. * Almost two-thirds have not maintained employment for a year. * Four out of ten have become parents. * Not even one in five is completely self-supporting. * One in four males and one in ten females have spent time in jail.8 Teenagers often leave the foster care system with no ties: no job, no money, no place to live, and no help. In addition to facing "high rates of homelessness, . . . poverty, and delinquent or criminal behavior[,] they are also frequently the target of crime and physical assaults."9 The "worst" kids - those who, like Jeffrey, fight the system, run away, and get involved with drugs, crime, or both - are the ones who need help most, and they are the ones least likely to get it. This is not only because they resist the help they need but also because, increasingly, the system ties benefits to good behavior.10 Becoming an adult is difficult for the most privileged teenager. For those aging out of foster care, it can be nearly impossible to create a sustainable life. This Article argues that teenagers in foster care have a substantive due process right to services preparing them for adulthood while they are in state custody - and, potentially, even after they age out of care. The lower federal courts generally have interpreted the Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services n to mean that foster children have a substantive due process right to personal safety while they are in the custody of the state.12 Doctrinally, this right in foster children is an extension of a similar right recognized in prisoners13 and mentally retarded people held in state custody. …

Litigating Presidential Signing Statements

Abstract: Presidential signing statements have been variously portrayed as much ado about nothing,1 a cause for concern,2 and a constitutional crisis.3 Clearly in the latter category, the American Bar Association (ABA) Task Force on Presidential Signing Statements and the Separation of Powers Doctrine called presidential signing statements "contrary to the rule of law and our constitutional system of separation of powers."4 The ABA Task Force concluded that the President must veto legislation he believes is constitutionally objectionable, rather than use presidential signing statements to refuse to enforce statutes that he signs into law.5 In this view, such refusals effectuate unconstitutional line-item vetoes.6 Accordingly, the ABA Task Force urged Congress to enact legislation that would subject presidential signing statements to judicial review in order to halt this presidential practice altogether.7 Senator Arlen Specter took up the ABA Task Force's suggestion and introduced the Presidential Signing Statements Acts of 2006 and 2007,8 which would give either the Senate or the House of Representatives standing to seek a declaratory judgment about the legality of a presidential signing statement. It is easy to see why some members of Congress want the judicial branch to referee this tug-of-war between the executive and legislative branches. By pushing the issue to the judiciary, Congress does not have to expend political capital in repeated showdowns with the President over the scope of executive power. Moreover, once a clear-cut case involving executive inaction gets into federal court, the courts generally will order executive officials to act in accordance with the law.9 This Article explores whether Congress can litigate presidential signing statements, concluding that they are not justiciable even if Congress enacts a law granting itself standing. Furthermore, if the President follows through on his signing statements and declines to enforce the laws as written, those acts of presidential nonenforcement will face significant justiciability barriers. As a result, Congress must use political tools to force the President's hand if the President is refusing to enforce laws that he has signed. Part I of the Article discusses the ripeness and standing barriers Congress would face in seeking judicial review of presidential signing statements. Given these barriers, Part II explores ways in which Congress can piggyback on hypothetical litigation brought by private parties to challenge presidential signing statements, such as intervention and amicus briefs. While these are viable methods to give Congress a voice in this interbranch dispute, Part III discusses why such private lawsuits are unlikely to succeed because of various hurdles to justiciability, including standing. To illustrate these obstacles, Part III discusses six actual instances in which the executive branch did not enforce statutes that President Bush had previously objected to in signing statements. These acts of executive nonenforcement were uncovered by the Government Accountability Office (GAO) when it examined all of the presidential signing statements that accompanied appropriations legislation in 2006. 10 Part III also addresses threatened instances of nonenforcement contained in some of President Bush's more high-profile signing statements, such as his objections to statutes that require the head of the Federal Emergency and Management Agency (FEMA) to be qualified, ban torture against foreign detainees, and set forth how the United States should execute foreign policy in Sudan. This Part concludes that plaintiffs would likely not be able to challenge actual or threatened acts of nonenforcement because standing and other justiciability doctrines would pose insurmountable barriers. In short, Congress will have to exercise its political powers if it wishes to confront the President over his signing statements. I. BARRIERS TO JUDICIAL REVIEW In over 149 signing statements, President Bush has threatened executive nonenforcement of at least 800 statutory provisions that he deems inconsistent with the Constitution. …