Tuesday, September 30, 2014

Animus versus Moral Opposition: Material and Expressive Considerations

Guest Blogger

Neil S. Siegel

This post is part of the Symposium on Unconstitutional Animus.

Some participants in the debate over same-sex marriage are offended by the suggestion that any state ban is based upon animus.  Like Chief Justice Roberts during oral argument in United States v. Windsor, they ask incredulously, for example, “So that was the view of the 84 Senators who voted in favor of [the law] and the President who signed it?  They were motivated by animus?”

Others believe that most, if not all, state bans are based upon animus.  They applaud Judge Posner for calling out a state as “either . . . oblivious to, or think[ing] irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal.”  Baskin v. Bogan, 2014 WL 4359059, at *12 (7th Cir. Sept. 4, 2014).  Who is right depends in part upon the relation between unconstitutional animus and moral opposition to homosexuality.  

Some may think that the outcome of same-sex marriage litigation turns on this question.  For example, in a New York Times column in late July, Adam Liptak asked whether it may be difficult for the Supreme Court to invalidate state bans given the findings of certain lower courts that animus toward gay people played no role in the enactment of some such bans.

I responded in part that the Court does not define animus as limited to malice or intent to harm—it also understands animus to include expressions of moral opposition to homosexuality, evidence of which abounds in same-sex marriage cases.  The more important point, however, is that the Court’s doctrine requires the invalidation of state bans on same-sex marriage regardless of whether moral opposition is animus.

A proof of this assertion is straightforward:

Read more »

Monday, September 29, 2014

Persistent Questions About Animus

Guest Blogger

Susannah W. Pollvogt

This post is part of the Symposium on Unconstitutional Animus.

Animus is an enigma. 

On the one hand, it is an important constitutional concept that has proven critical to judicial recognition of the rights of sexual minorities.  On the other hand, it seems that no one really knows what animus is.

One might expect that, after the highest court in the nation has relied on a doctrine (animus) in an important and high profile decision (Windsor), there would be a modicum of doctrinal consolidation in the wake of that decision.  But this has not been the case.

Instead, the lower courts have openly expressed confusion about the meaning and function of animus, and advocates have continued to pursue other lines of argument in the pending state-level same-sex marriage cases, reluctant to lash their fates to the unsteady mast of Windsor.

In 2012, before the Supreme Court’s decision in Windsor, I identified three unanswered questions plaguing the doctrine of animus:

(1)  How does the Court define animus?  As malice or “desire to harm”?  Or something milder, like bias or moral disapproval?  Is animus even properly considered as an impermissible subjective mindset, or is it instead an impermissible objective function?

(2)  What does the Court accept as evidence of animus?  Blatant statements of bias surrounding the adoption of a law obviously play a role, but is such evidence necessary?  And, whether or not it is necessary, is such evidence standing alone sufficient?

(3)  What doctrinal consequences flow from a finding of animus?  Is animus a “silver bullet,” defeating a law regardless of whether the government offers other, superficially legitimate justifications?  Or is animus simply one illegitimate state interest, such that a law can be saved by other rationales?  Finally, is it possible that animus is the trigger of that most chimeric level of scrutiny, “heightened rational basis review”?

When the Supreme Court granted certiorari in Windsor and Perry, I thought—naively, to be sure—that the Court would either provide guidance on these questions or avoid the doctrine of animus altogether.  Instead, it did neither. 

Justice Kennedy, in authoring the majority opinion in Windsor, relied on the doctrine of animus, but without defining its contours.  Indeed, the dissenting opinions attacked the majority on the basis of the three questions identified above.  Regarding the definition of animus, Chief Justice Roberts contended that invoking the doctrine of animus was tantamount to labeling one’s opponents hate-filled bigots.  Regarding evidence of animus, Justice Scalia found stray comments in the legislative record insufficient to support this divisive charge.  Regarding the consequences of finding animus, both Roberts and Scalia pointed to precedent establishing that other rational bases could save a law despite a finding of impermissible motive. 

While Kennedy may not be in the habit of engaging dissenting opinions, the dissents in Windsor simply highlighted a larger concern: the persistent ambiguity surrounding the doctrine of animus—something Kennedy could have chosen to address.  But he apparently did not see the need to engage these controversies head-on—at least not in the context of deciding Windsor.

Thus, all the questions about animus that existed before Windsor remain open after Windsor.  Indeed, these three unresolved issues were explicitly named by Judge Holmes of the Tenth Circuit, concurring in Bishop v. Smith.  And another federal court recognized that animus was an issue in the state-level same-sex marriage cases, but declined to engage the question because “the Supreme Court has not yet delineated the contours of such an approach.”

Read more »

Symposium on Unconstitutional Animus

Guest Blogger

Susannah W. Pollvogt

This week Balkinization will be hosting a symposium on the issue of unconstitutional animus.  Participants will include Susannah Pollvogt (Washburn), Neil Siegel (Duke), Dale Carpenter (Minnesota), William Araiza (Brooklyn), Russell Robinson (Berkeley), and Justin Marceau (Denver).

Susannah Pollvogt is an Associate Professor at Washburn University School of Law.  She can be reached at: susannah.pollvogt at

Is Noel Canning a Victory for the Living Constitution? Constitutional Interpretation in an Age of Political Polarization


When Noel Canning v. NLRB was decided last June, several commentators noted that the 5-4 vote marked a victory for living constitutionalism (represented by Justice Breyer's opinion) and a defeat for originalism (represented by Justice Scalia's concurrence, which read like a dissent).

In fact, Breyer's opinion isn't particularly living constitutionalist. It is traditionalist. It is strongly rooted in past practice. It argues that we should not disturb conventions that are of long-standing. If living constitutionalism is the idea that the Constitution should be interpreted to keep abreast of changing times and conditions, Breyer’s Noel Canning opinion doesn't seem all that interested in *that* project. The opinion argues, instead, that there is a long history of interpreting the recess appointments clause in a particular way, and we should retain it unless there are strong considerations otherwise.  If you applied the logic of this opinion to same-sex marriage, you would quickly discover that Breyer sounds much more like a conservative traditionalist than a living constitutionalist.  Indeed, I can easily imagine parts of Breyer's opinion being quoted by conservatives to criticize liberals in later cases.  (You read it here first.)

Conversely, Scalia's opinion, although framed in the language of originalism and textualism, is the truly revolutionary opinion. Here (in marked contrast to many of his other writings) Scalia is skeptical of arguments from tradition. He argues that deferring to an imagined tradition tends to favor stronger parties (Presidents, who can act decisively) over weaker ones (Congress, which faces collective action problems). He asserts that there is no unbroken history of established practice. And even if there is such a history, (1) it may not be worthy of our respect because it reflects past usurpations of power; and (2) we should disregard it in favor of the text. Scalia’s argument in Noel Canning is radical, not in the sense of being left-wing, but radical in the sense of seeking to return to the root of things and argue them once again based on first principles.  But of course, that’s what originalism is—radical, not conservative.

Indeed, I would go much further.  A central claim of my recent scholarship has been that we are continually misled by accepting the familiar opposition between originalism and the idea of a living Constitution.  For example, I have argued that the originalism of the modern conservative movement *is* living constitutionalism-- it is the living constitutionalism of movement conservatives, who want to reform and redeem American constitutionalism, which they believe took a wrong turn in the middle of the twentieth century.  Like the great liberal Justice Hugo Black before them, contemporary conservatives have adopted the language of originalism and textualism to achieve their revolutionary goals. In Noel Canning, Scalia does not sound at all Burkean-- he sounds like a man who wants to shake things up.

Why is it necessary to shake things up? This brings us to another feature of the two opinions-- their relationship to contemporary politics, and, in particular, to the perhaps the most important feature of that politics--political polarization.  Breyer's opinion in Noel Canning is much less interested than Scalia's in making constitutional interpretation take account of changing conditions in constitutional politics. Once again, if you think that living constitutionalism is about adapting to changed conditions, then Breyer's opinion is much less living constitutionalist than Scalia's.
Read more »

Friday, September 26, 2014

Money Talks for Opportunistic "Free Speech" Havens

Frank Pasquale

I am thrilled to see my colleague Danielle Citron's book, Hate Crimes in Cyberspace, garner so many positive reviews and mentions. Katharine Quimby makes a great point about Citron's work in the Guardian today:
Until recently, [large internet companies] have not addressed "harassing content", arguing that they are "mere conduits". But that is changing. Citron is part of the movement promoting reform, as a member of a low-key, but influential body: the Anti-Cyberhate Working Group, made up of industry representatives, non-governmental organisations, academics and others. It originated in a campaign to combat antisemitism online, but soon widened its scope. Facebook has arguably changed most rapidly, with Google's YouTube also now acting, on occasion, to combat harassment. Twitter has been the slowest, and has come in for criticism in the British context. Of course, money talks – and is having an effect: Citron cites Facebook's decision to take down pro‑rape pages in May 2013, after 15 companies, including Nissan, threatened to pull their ads.
In other works: when it's cheaper to do nothing, online gatekeepers will push CDA immunities as the foundation of free speech online. But as soon as the cost of laissez-faire rises, they'll assert free speech rights and despotic dominion over their platforms. I'm sure their lawyers will bend over backwards to justify the chameleon rhetoric. The complexity of free speech law offers multiple affordances for doing so. But we should all be clear on the motivation: less the noble ambition to "connect the world" than the financial imperative of constant earnings growth.

The Invention of Low-Value Speech

Andrew Koppelman

Here’s a familiar rule of First Amendment law:  free speech protection does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. As recently as 2010, the Supreme Court declared in United States v. Stevens that First Amendment protections extend equally to all speech and expression except those “well defined and narrowly limited classes” of low-value speech, “the prevention and punishment of which have never been thought to raise any Constitutional problem.”

In an important new paper, Genevieve Lakier shows that this story is false.  In early American courts, all speech—even low-value speech—was protected against prior restraint, and almost all speech— even high-value speech—was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently.

The fake historical narrative was offhandedly invented by Justice Frank Murphy in Chaplinsky v. New Hampshire (1942).  The passage the Stevens Court quoted declares:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘‘fighting’’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

The passage closely tracks the following, from Zechariah Chafee’s important book, Free Speech in the United States (1942), which Lakier quotes:

“obscenity, profanity, and gross libels upon individuals . . . are too well-recognized to question their constitutionality, but I believe that if properly limited they fall outside the protection of the free speech clauses as I have defined them. My reason is not that they existed at common law before the constitutions, for a similar argument would apply to the crime of sedition, which was abolished by the First Amendment. . . . The true explanation is that profanity and indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step toward truth, which is clearly outweighed by the social interests in order, morality, the training of the young, and the peace of mind of those who hear and see.”

Lakier writes:

“Justice Murphy borrowed a great deal from this passage in constructing his opinion in Chaplinsky, as is evident from the opinion’s text. Nevertheless, there is a crucial difference between Chafee’s argument and Murphy’s recapitulation of the argument in Chaplinsky—namely, that Chafee never claimed the distinction he drew between what he called the “normal” criminal laws of obscenity, profanity, and libel and the abnormal and unconstitutional sedition statutes was based on historical practice.”

Her discovery of the Chafee passage is only one of the virtues of this terrific paper.  She also displays an impressive command of nineteenth century free speech law.

The Court today declares, as a basis for rejecting state attempts to prohibit such novelties as videos of animals being tortured, that the only permissible content-based regulations of speech are those that target speech that was historically unprotected. If that were true, then child pornography – a category unknown to the law until the late twentieth century – would likewise be protected.

Murphy was merely making an offhand claim to shore up the value judgment that underlay his holding.  The modern Court, in yet another exercise in phony originalism, elevates that claim to official doctrine, and purports to be relying on an ancient understanding when in fact it is doing nothing of the kind.  The value judgments in the present doctrine may or may not be defensible, but they need to be defended as such, not cloaked behind bad history.

Lakier’s piece should definitively put this dishonest bit of doctrine to rest.

Thursday, September 25, 2014

The religious roots of modern secularism

Andrew Koppelman

A few conversations about contemporary secularism, prompted by my new review of John Compton that I just posted, has prompted me to post on SSRN another book review I wrote for Dissent a few years ago, of Charles Taylor's important book, A Secular Age.  Some of the arguments I made there are evidently still relevant.

Taylor offers an invaluable map of how the modern religious-secular divide came into being. He concludes that modern Western secularism has its roots in Christian theology and that secularism and Christianity reveal a common ancestry in their shared commitment to human rights—a commitment that does not follow from atheism as such. 

Taylor’s history refutes what he calls the “subtraction view” of the movement toward secularism, according to which the decline of religious belief is simply the result of the falling away of superstition and the growth of knowledge.  Rather, modern secularism is a religious worldview, with its own narrative of testing and redemption, and shares the vulnerabilities of such views. The news that secularists also live in glass houses has implications for ongoing stone-throwing operations.

The Taylor review is here.

Wednesday, September 24, 2014

Why You Should Hope Greg Orman Wins

Gerard N. Magliocca

The most interesting Senate race this year is in Kansas, where incumbent Pat Roberts (R) is facing a strong challenge from Greg Orman, an independent candidate.  I have no particular opinion about Senator Roberts (though given that he's been there for eighteen years, perhaps that explains why he is in trouble) or Mr. Orman, who is a businessman and may be a stealth Democrat.

What intrigues me is the once-in-a-lifetime possibility for reform if Orman wins and if the Senate ends up with 50 Republicans and 49 Democrats.  In that not unrealistic scenario, Orman would hold the balance since his decision to caucus with Democrats would enable Vice-President Biden to cast his tie-breaking vote.  More important than which side he joins is the price that he demands.  Surely Orman could get sugarplums for Kansas, a cushy office, and an important committee assignment.  If he takes a broader view, though, then he could demand changes to the practices of the Senate that are within the discretion of the majority (secret holds on nominees, filibuster practice, the right of the minority to amend legislation, and so on).  This can never happen, though, if Senator Roberts wins.  

War Powers "As If"

Stephen Griffin

Now that the NYT editorial board has weighed in on President Obama's use of war powers re ISIS, I feel I can immodestly claim to have provided a better analysis of the current situation re war powers than anyone else in a Constitution Day talk given at Tulane.  The talk is both student and journalist-friendly, so please take a look if you wish.

To boil things down as much as I can, too much commentary has focused on treating Obama's use of war powers "as if" it was occurring in a judicial forum, rather than politically as a matter of interbranch deliberation. Doing the latter inevitably means taking into consideration that we are right before the congressional elections.  Deliberating before an election is rarely a good idea -- that's how we got the 2002 Iraq war resolution!  Yet the NYT scores the Congress for failing in its constitutional responsibilities, "shamelessly ducking a vote."  Yes, they should duck it.  They haven't got the time to do a proper review before the election, particularly if what we should be interested in is a new AUMF.  That will take time and more clarity about the situation in the Middle East and both are what Congress doesn't have right now.

As far as the legal commentary, too many legal scholars are too worried about what Obama is claiming re the previous AUMFs.  They seem to think that these claims might come back to haunt us as "precedents."  But we are not in a judicial forum (nor are we ever likely to be) when it comes to the use of military force.  It is therefore a conceptual mistake to think that the forms of judicial argument or what judges have said in past opinions like Youngstown can help us make sense of this situation.  We surely need to think as constitutionalists, but mindful of the constitutional order that applies to foreign affairs and in light of the fact that we are, after all, dealing with the "political" branches.  So talk of bad precedents and Congress acting irresponsibly is not helpful.  It won't help the country get anywhere it wants to go.

I do agree with much current commentary that we badly need a legal review of Obama's war authority with a view to drafting a new AUMF.  That would be all to the good.  So far I see no sign that Congress is truly interested in drafting one.  But as I say in my Tulane talk, there is no doubt that Obama could render a service to his country in his final two years in office by putting an AUMF on the national agenda when the new Congress is seated in 2015.

Monday, September 22, 2014

The New Deal Revolution Started in the 1850s

Andrew Koppelman

according to John Compton's marvelous new book, Evangelical Origins of the Living Constitution.  I review it for the Harvard Law Review Forum, here.

Friday, September 19, 2014

Interview on the Black Box Society

Guest Blogger

Lawrence Joseph and Frank Pasquale

In the interview below, Lawrence Joseph interviews Balkinization blogger Frank Pasquale about his forthcoming book, The Black Box Society: The Secret Algorithms That Control Money and Information. Joseph is Tinnelly Professor of Law at St. John's School of Law, and a poet and author of literary prose and essays. Pasquale teaches at the University of Maryland and serves on the Council on Big Data, Ethics, and Society.

Lawrence Joseph: First of all, I want to say that I consider The Black Box Society a monumental and stunning achievement--its truly extraordinary range of critical analyses and research, its clear and masterfully written style. You mention that the book took ten years to write. Could you explain your project and how it evolved over a time of unprecedented changes in global technologies and political economies?

Frank Pasquale: Thank you, Larry. This project began with a contrarian hunch about search engines. As Google grew in the early 2000s, the primary policy question seemed to be: “how do we get law out of the way of this company so it can keep organizing the internet?” I shared that optimism at first--but I was also concerned about the downside.

I started compiling stories about people who felt Google was treating them unfairly--by, say, disappearing their site from results, or giving prominence to scurrilous or salacious material. I looked at firms with similar business models, ranging from data brokers to social networks. All used technologies of search to order incredibly diverse content.

Data-intensive technology kept spreading. Not only product choices, but personal reputations were increasingly determined by algorithms, too. The way we see the world was filtered through them. And as results got more personalized, reputation and search became intertwined, mutually reinforcing: what a search engine knows about me helps it anticipate what I want, even on the basis of a few letters typed into a search bar. But the actual programming behind such critical determinations was hidden behind layers of trade secrets and nondisclosure agreements.

Since this was such a new area for law, there were hundreds of ideas one could write up in response to it. As I tried to prioritize, my guiding principle was: where are search and reputation technologies most important? Briefly, my answer was: force and finance. Two cataclysmic Septembers (2001 and 2008) seared them in my mind.

The force sector—from local police to DOD to DHS and their many private contractors—garnered extraordinary new powers after 9/11. The finance sector is our arbiter of opportunity, making money cheap for some people and expensive for others. As it broke down in 2008, it became clear that a government ever more minimalist and lethargic on the economic front could suddenly transform into a Hamiltonian Leviathan when elite firms faltered. Both the force and finance sector were using new technology to accomplish incredibly fine-grained surveillance, and were being transformed by computerization. That transformation, I worried, was simply entrenching current inequalities and inequities, rather than challenging them.

Read more »

Monday, September 15, 2014

Judith Baer, Ironic Freedom: Personal Choice, Public Policy, and the Paradox of Reform

Mark Graber

Professor Judy Baer is the best feminist theorist most readers of Balkinization have never heard of.  Her works, most notably Our Lives Before the Law and The Constitutional and Legal Rights of Women (with Leslie Goldstein) are classics within political science, but have far less cache in the legal academy.  This is a shame.  Professor Baer is an acute critic of both liberalism and feminism.  Her works confront the challenges to both in ways that deserve a broad audience.  Ironic Freedom: Personal Choice, Public Policy, and the Paradox of Reform is another exceptional work that will challenge liberals and feminists inside and outside the classroom.

The central concern of Ironic Freedom is the way in which arguments that promise women and members of other historically subordinated groups greater freedom have the potential to generate new forms of subordination.  Repeatedly, legislative or judicial decisions that permit women to take formerly banned actions foster social practices that compel women to take those actions.  Within weeks after New York declared persons had the right to marry a person of the same sex, many businesses in that state announced they would no longer offer domestic partner benefits to same-sex couples who did not marry within a short period of time.  Affluent couples have pressured desperate poor women to have their baby in states where surrogate motherhood is legal  “May,” Professor Baer detailed, in these instances and many others was partly transformed into “must.”

Ironic Freedom details the ways in which policies permitting a right to die, birth control, abortion, surrogate motherhood, prostitution, a volunteer army, equal employment opportunities, and same-sex marriage all generate coercive pressures that some woman are better able to resist than others.  In numerous areas of law, Baer details, the possibility exists that “permission will lead to coercion: that ‘may’ will become ‘must,’ or ‘can’ will become ‘should.’”  Liberal freedoms are not unmitigated blessings because being a woman, being gay, being young (or old) or being differently abled is not the sole marker for any person.  Whether legalizing prostitution increases liberty depends on the extent to which particular woman are free in practice choose whether to become prostitutes.  Legal birth control increases pressures on many women to engage in sexual behavior.  Some elderly poor are unable to resist subtle and unsubtle pressures to exercise their “right” to die.

Professor Baer provides an exceptionally readable introduction to the ways in which “may/must’ arguments function in contemporary discourse.  The chapters on each subject highlight how various “may/must” arguments implicate liberal and feminist concerns, and are not simply rationales for conservatives opposed to the right in question primarily on illiberal and antiegalitarian grounds.  The volunteer draft has resulted in a military in which poor persons and persons of color are overrepresented.  Some men are more inclined to pressure women to terminate pregnancies because abortion is legal.  Far more poor than affluent persons choose assisted suicide.  Professor Baer at the end of the day makes strong arguments for all of the liberties in question.  Nevertheless, she insists that liberals and feminists keep their eyes open when promoting liberalizing policies because all liberalizing policies have coercive dimensions, dimensions likely to be exacerbated when ignored.  Liberalization, in short, is only one step in a long, complicated and paradoxical process by which men and women in our society may become equally free and equal.

Ironic Freedom is particularly appropriate for classroom use.  The work is short, accessible and fascinating.  The text promises one terrific class after another.  The chapters explore the pros and cons of various policies from a variety of fascinating angles and do not resemble the disguised legal briefs that too often dominate the academic law market.  Most important, at a time when intersectionality is hot, this is perhaps the best introduction to the ways in which gender intersects with race, sexual orientation, class, and disability to make what appear obvious liberal and egualitarian policies a bit more illiberal and antiegalitarian than many of us would like to acknowledge.

Friday, September 12, 2014

Obama's Unconstitutional War

Bruce Ackerman

There wasn't enough space on the New York Times' op-ed page for me to elaborate a key legal issue in my critique of Obama's unilateral declaration of war against ISIS. My essay emphasized that in 2001 Congress rejected President Bush's initial demand for sweeping powers to launch a world-wide war on terror, and only authorized the use of force against groups and countries associated with “the terrorist attacks on September 11th.” But I didn't have room to explain the full significance of point.
The president initially demanded authority “to deter and preempt any future acts of terrorism or aggression against the United States.” (My emphasis). If Congress had accepted this language, President Obama’s claim that his war on ISIS was authorized in 2001 would have been on solid ground. But Congress refused precisely because it wanted to force future Presidents to return to the House and Senate for targeted approval of further military initiatives. 

 David Abramowitz makes this plain in a contemporaneous essay in the Harvard International Law Journal. (See "The President, the Congress, and the Use of Force, 43 Harv. I. L. J. 71 (2002). He was chief counsel of the House Committee on International Relations at the time, and explains Congress’ rationale for rejecting President Bush’s initial demand in a particularly cogent fashion:  “Given the breadth of activities potentially encompassed by the term ‘aggression,’ the President might never again have had to seek congressional authorization for the use of force to combat terrorism.” In claiming that Congress’ authorization of force against Al Qaeda supports his war against ISIS thirteen years later, President Obama fails to confront Congress’ self-conscious refusal  to grant the commander-in-chief any such power to launch future preemptive campaigns.  terror.

At the present time, the White House has failed to publish an opinion supporting the Administration’s current interpretation of the 2001 statute. If the Office of Legal Counsel or the White House Counsel does so in the future, it is imperative for it to explain how the Administration's current open-ended interpretation is compatible with Congress’ original refusal to grant presidents a free-hand to wage preemptive war against future terrorist threats.


Thursday, September 11, 2014

The Elasticity of War: The Ever Expanding AUMF

Jonathan Hafetz

President Obama may not have initiated the War on Terrorism, but he has certainly become attached to it. The administration now maintains that the President's announced campaign to use force against the Islamic State of Iraq and the Levant (ISIL) in Iraq and Syria is covered by the existing 2001 Authorization for Use of Military Force (AUMF), which was passed days after the 9/11 attacks and specifically targeted those individuals and organizations responsible for the attacks. The legal theory is that ISIL was originally part of al Qaeda and, while it subsequently split from al Qaeda, "is the true inheritor of Usama bin Laden's legacy." (Oddly, this theory suggests that the U.S. has been at war with ISLS for some time, even if no one knew it). Cloaking ramped-up operations against ISIL in the AUMF has multiple aims, including providing the required congressional approval under the War Powers Act; avoiding the limitations of relying exclusively on the President's Article II commander-in-chief authority; and escaping a contentious congressional debate shortly before the upcoming mid-term elections. But, putting aside its questionable interpretation of the AUMF, the administration's theory raises troubling questions about the entrenchment of permanent war in a liberal democratic state.

The AUMF, to be sure, has been read expansively before. Some notable examples include its invocation for the authority to: detain indefinitely individuals seized anywhere in the world (and not just in connection with the U.S.-led invasion of Afghanistan, which served as the backdrop for the AUMF's enactment); engage in warrantless surveillance of U.S. citizens, circumventing the restrictions imposed by the Foreign Intelligence Surveillance Act; and conduct lethal drone strikes not only against al Qaeda, but also against "associated forces," a term that appears nowhere in the AUMF's text but which has served as the basis for drone strikes in Yemen and Somalia. (Presumably, the fact that al Qaeda and ISIL are presently fighting each other precludes invoking this "associated forces" theory here).

But interpreting the AUMF to cover ISIL remains troubling. Last year, the President delivered a speech at the National Defense University in which he announced his goal of repealing the AUMF and ending the war on terror. Instead, Obama has revitalized the AUMF, not only by extending it to a conflict that is expected to occur on multiple fronts and last years, but also by demonstrating its continued elasticity. A much better course, assuming the underlying decision to wage war against ISIL is correct, would have been to seek a new and narrow force authorization from Congress specifically targeting that group--one that would have required the people's representatives to debate the issue publicly.

Going to war against ISIL through the rubric of the AUMF has significant implications. Among them is the deterioration of the levers of democratic accountability for waging armed conflict in an age of global terrorism. It suggests not only the relative ease with which the United States will go to war, but also the way in which new military actions are subsumed under a more generalized war against extremist groups. War is becoming increasingly open-ended, while also more able to avoid democratic checks, as each successive military operation gets subsumed within an existing--and ever growing--conflict. War doesn't end; it just expands, all without the friction that the separation of powers is designed to provide.

Passive Aggressive: Scalia and Garner on Interpretation

Andrew Koppelman

Antonin Scalia’s and Bryan Garner's coauthored treatise on legal interpretation, Reading Law: The Interpretation of Legal Texts, is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia. 

I elaborate in a review of the book in the literary journal Boundary 2, available here.

Monday, September 08, 2014

Beyond Levels of Scrutiny: Windsor and 'Bare Desire to Harm'

Andrew Koppelman

In United States v. Windsor, the Supreme Court left many people unsatisfied when it failed to identify the level of scrutiny to apply to laws that classify by sexual orientation. That question however was not even presented. The Defense of Marriage Act, which the Court invalidated in that case, makes no reference to sexual orientation, but it does speak of “man” and “woman.” It classifies on the basis of sex. Sex-based classifications are presumptively unconstitutional. The Court avoided this rationale for its result, probably because it did not want to reach the question of whether states could deny same-sex couples the right to marry.

The equal protection analysis upon which the Court did rely, the lesser-used “bare desire to harm” doctrine, had nothing to do with levels of scrutiny. It looked past that heuristic device to the underlying purposes of equal protection. This was a rare but appropriate response to an unusual kind of law, one that singles out a particular class and imposes an unprecedentedly broad disability upon it.

I elaborate on this argument in a paper forthcoming in Case Western Reserve Law Review, available on SSRN, here.