Suing the President

Yesterday, the House of Representatives voted to proceed with a lawsuit against President Obama.  The President has, in my opinion, overstepped his constitutional authority on more than one occasion, whether by failing to enforce laws or unilaterally rewriting laws.  And it is this habitual line-stepping on which House Republicans base the lawsuit.

Obama responded by calling the suit nothing more than a “political stunt.”  And the President is right.

House Republicans see the lawsuit as an acceptable middle path: it’s not as aggressive as impeachment (which may stir the Democrat base into action during the midterm elections) but it’s more aggressive than doing nothing (which may alienate the Republican base).  It’s a symbolic, political slap-fight.  So the House has capped off the "least productive" year in Congressional history—I say this tongue-in-cheek because, hey, maybe Congressional productivity shouldn’t be measured by how many pages Congress adds to the United States Code—by pursuing a lawsuit that will hardly be productive.  And so I fault the House, both for plodding down a course that will likely lead nowhere and for failing to take alternative actions if the House actually believes the President’s conduct is egregious enough to file such a suit.

First, the suit has significant legal hurdles.  The House seems to lack standing to bring the suit at all.  I have seen the argument made that the House has standing, in part, due to the nature of the aggrieved congressmen.  If, rather than bringing the lawsuit as a group of bitter congressmen, the group brings the lawsuit on behalf of the institution as a whole (i.e., by voting on a resolution like yesterday’s), it might then have standing.  But I have not (yet, anyway) read a compelling argument as to the nature of the House’s injury-in-fact.  Is House Republicans’ argument simply that a law Congress passed—specifically, the Affordable Care Act—hasn’t been executed properly?  On that logic, wouldn’t the House then be able to sue the President whenever a law has been improperly executed?  That’s an arrow that has been stuck in the House’s quiver for over 200 years.  I am not, however, as well-versed in standing jurisprudence as others on here, so I would be interested in hearing if my understanding is wrong.  

Second, as to the alternative measures, the House could, if it so chose, try to impeach the President.  And I think you could make a straight-faced argument that members of the House have an obligation to pursue impeachment if they believe the President’s conduct is impeachable.  Isn’t that what our system of checks and balances is all about?  And don’t members of the House have a duty to uphold the Constitution?  While impeachment may not be the most politically advantageous, and it may not lead to a conviction in the Senate, it is part of the House’s job to keep the President in check through its power to impeach.  The House owes a duty to its constituents to protect them from the aggrandizement of power in the executive.  Sure, the House has some discretion, akin to prosecutorial discretion.  But how much?  If the House believes that egregious Constitutional violations have occurred, perhaps it shirks its own duties by failing to impeach.  (The impeachment option, too, adds to the House’s legal obstacles: although the House’s having that alternative, in itself, does not preclude it from pursuing other remedies—such as a lawsuit—the availability of another remedy may be enough for a court to avoid deciding the issue.)

There may be some political cache in filing the lawsuit.  And, given my views that the President has, in fact, overstepped his bounds, I hope that I am wrong and the suit ultimately curbs his authority.  But it sure seems like a big waste of time.

The Bloody Business of Executions

Earlier this month, the Ninth Circuit granted a conditional stay of the execution of Joseph R. Wood III based upon his claimed First Amendment right to government information.  Wood faced execution for murdering his ex-girlfriend and her father in 1989.  He wanted to know the manufacturer of his lethal injection drugs; the qualifications of those who will administer the execution; and the documents relied upon by the state to adopt its newest execution protocol. Normally I love a good First Amendment discussion--and this case would certainly provide one, with its novel right-to-information argument--but that's not what caught my eye.  Rather, it was Chief Judge Alex Kozinski's dissent from the denial of rehearing en banc. Kozinski eloquently and compellingly stated what is wrong with capital punishment today: "If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf."

Many of the current challenges to death sentences focus on the method of lethal injection. The condemned prisoners argue that the drugs used to relax their muscles and stop their hearts will cause a painful death, and are thus cruel and unusual punishment. Kozinski concluded that "the enterprise is flawed."  These drugs were developed to help heal (or at least provide comfort to) sick people, not to kill people.  The state uses them to make executions seem peaceful, to mask the reality of death. Kozinski suggested bringing back the use of firing squads.  "If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all."

I agree with his reasoning.  Death by lethal injection seems too much like an ordinary medical procedure.  It allows citizens like me to ignore what the state is doing--killing someone on my behalf.  If the end of the line of a death-penalty case involves a squad of men with shotguns, then perhaps states will rethink the need for executions at all.  There are plenty of other reasons to abolish the death penalty: moral opposition (which can be a basis for legislation, but it's falling out of favor these days), judicial economy (so much time and effort goes into deciding death-penalty appeals), effectiveness (does the possibility of execution really deter criminals more so than life without parole?), and error (how many innocent people has the state executed?).

As for Mr. Wood, the Supreme Court lifted the stay, and he was executed on July 22. Attorneys for Wood tried to file an emergency request to halt the execution because Wood was still awake an hour after drugs were administered.  He snorted and gasped many times, and after two hours, he died.

Thoughts on Immigration

On the front page of today's Wall Street Journal, a uniformed man (presumably a Border Patrol agent) leans over the bank of the Rio Grande, extending a hand to a boy, no more than 15, holding a girl, no more than 6, as they climb out of the river. "New approach to spare child migrants a perilous trek," the headline proclaims. I instinctively liked this image of U.S. border policy.  Not one of fences and guns, but of awareness and compassion. We cannot begin to help the tens of thousands of Central American refugee children that have arrived at our Southern border without awareness of their history (and our own) and compassion for their futures (and our own).

My formative trip to the border took place in 2006, as I spent my spring break meeting people and exploring issues facing El Paso, Texas and Ciudad Juarez, Mexico. (For my college roommate's perspective on how this trip and her subsequent experiences at the border shaped her view on immigration policy, read this article.) Even then, I learned that there are no clear-cut, easy answers when it comes to the people at the border. The reasons that people from countries like Honduras, Guatemala, and El Salvador make the dangerous journey north are multifaceted.  Their countries are poor.  Violent gangs abound.  The global drug market--fueled by U.S. consumption--pours money into those gangs' coffers.  Governments and police forces are corrupt.  Hope is hard to find.

In an opinion piece in the Wall Street Journal earlier this week, Jeb Bush and Clint Bolick propose that the solution to "border disorder" rests on three pillars: returning these children to Central America, "aggressively remov[ing]" the incentives that cause them to come to our country, and creating a functional system for legal immigration.

 As to the first pillar, I do not see how we can return these children to Central America in a responsible manner. Will our government really expend the effort to reunite each child with his or her parents? Also, these children left their countries for a reason. Are we sending them back to an unconscionable fate? Their mothers made the heart-rending calculation that sending their babies on freight trains across thousands of miles--risking death, robbery, rape, and all sorts of other evils--provided more hope than staying at home. On the other hand, what can our government provide the children here? A childhood in a detention center? Intentionally lax supervision that allows them to eventually strike out on their own?

Next, removing the incentives that cause people to come to our country is not as simple as giving humanitarian aid to Central American countries. It would have to involve the drug market--reducing illegal consumption in the States to give less money and power to the gangs abroad. Clearly the war on drugs has not achieved this yet.  Perhaps education is the answer. Do people even know that their cocaine habit is funding femicides and gang wars in other countries?  Perhaps legalization is the answer. Take away the black market and the funding is cut off.

Finally, I agree with Bush and Bolick that a functioning path to legal immigration is key. The administration seems to be taking this step by allowing Hondurans to apply for refugee status from home. But this creates new questions--whose applications for immigration are granted? People who have relatives here? People who can pay their own way? People with college degrees who can encourage innovation and entrepreneurship? Young children? Single mothers? People who have no hope of success in their home countries? Will this be just another way to leave the defenseless behind?

I have no answers. That is hard to admit. I've been thinking and praying about these issues for the better part of a decade, and I cannot see a clear way forward. I would love to hear your thoughts on the issue.

Supreme Court Review

Earlier this week, I attended a Supreme Court Review at the National Constitution Center.  I enjoy the National Constitution Center's events; they bring in esteemed academics and litigators for thought-provoking seminars.  When I saw that Erwin Chemerinsky and Frederick Lawrence would discuss the most recent Supreme Court term, I had to go. This event was co-sponsored by the Anti-Defamation League, and no speaker presented a conservative analysis of the cases.

While both Chemerinsky and Lawrence were impressive speakers who had a clear grasp of the holdings in this term's cases, several comments irked me.  On several occasions, both speakers noted that the "five-Catholic-male majority" was unreceptive to the rights of the minority.  As evidence of this hypothesis, they cited the outcomes in Burwell v. Hobby Lobby and McCullen v. Coakley. According to the speakers, both of these cases involved female reproductive rights that were disregarded by the Supreme Court majority.

This line of thinking bothers me for several reasons.  First, I find it intellectually lazy to assume that a justice's religious affiliation and gender dictated his ruling in those two cases.  How has it become acceptable to denigrate a Supreme Court opinion simply because the majority involved Catholic men?  The Pope's recent exhortation, The Joy of the Gospel, decries the evils that can arise in capitalistic societies.  But the Catholic justices aren't criticized as being particularly anti-capitalist. It seems that this anti-Catholic criticism only applies to cases involving reproductive rights, however tangentially.

Second, the tangential relationship to reproductive rights is often blown out of proportion. The Hobby Lobby case involved the Religious Freedom Restoration Act and a for-profit corporation's ability to operate according to the religious beliefs of its shareholders.  It did not involve a ban on contraception.  Women working for Hobby Lobby or Conestoga Wood could still obtain several forms of contraception under their employer-sponsored health plans, just not the abortifacients that their employers found to be morally objectionable. Those women could still exercise their reproductive rights by using one of the other contraceptive methods, paying for their method of choice, or working for a different employer who covered every conceivable contraceptive method.  So female reproductive rights were never really in jeopardy in this case.  What was in jeopardy was Hobby Lobby's ability to run a business in accordance with the religious conscience of the owners.  That is the right protected by RFRA.  And that is the case that the Supreme Court decided.  To say otherwise is disingenuous.

Likewise, in McCullen, female reproductive rights were not the main issue.  That case involved a Massachusetts law that criminalized standing on a public road or sidewalk within thirty-five feet of a reproductive health-care facility.  Here, the rights in jeopardy were not those of the women accessing the health-care facility.  Rather, they were the First Amendment rights of those people that want to counsel patrons of those facilities.  The Supreme Court analyzed this case under free-speech principles, not privacy-rights principles.  And correctly so.  Chemerinsky noted that the five-Catholic-male majority disregarded the "gauntlet of harassment" that women must walk through to get to these clinics.  But the First Amendment means that we cannot just silence people who bear messages that we do not necessarily want to hear.  I don't get to enjoin the ACLU and Planned Parenthood volunteers that (politely but firmly) stop me on the streets of Philadelphia.

It's time that liberal academics stopped criticizing rulings due to the gender and religion of the deciders.

UPDATE: For excellent commentary on Justice Ginsburg's comment that male justices "have a blind spot" when it comes to women, see Brian Murray's post on his blog, Modest Commentary.

Why The World Needs This Forum

In this age of hyperbolic cable-news punditry, and error-filled, fatalistic social-media analyses of Supreme Court decisions, a voice of reason is needed. Young conservatives are not Tea Party Republicans, bigots, gun fanatics, xenophobes, or women-haters. Young liberals are not Obama-lemmings, enemies of religion, or responsibility-shirking free-riders. Young libertarians are not indecisive hippies.  We need to dispel those harmful stereotypes.    If we disagree with a political party's platform, we should propose a new one.  If we see an inconsistency in an accepted analysis of a legal issue, we should point it out.  If we find common ground with people that hold different views on different issues, we should move forward to a solution.

We aim to provide a forum for young professionals to discuss the important issues facing contemporary America.  We will entertain the opinions of people who disagree with us.  Through this civil, open-minded discourse, we will refine our arguments and find constructive, viable solutions to our country's problems.