Law

The Filibuster that Matters

AP Photo/Jim McKnight
The Prospect 's Jamelle Bouie makes an important point about Rand Paul's rare Mr. Smith Goes to Washington -style filibuster on Wednesday. Before Paul started speaking to hold up the nomination of John Brennan to head the CIA, the Senate silently continued to filibuster Caitlin Halligan's nomination to the D.C. Circuit Court of Appeals. Paul's filibuster will get more attention, but the filibuster of Halligan is more telling. The most important difference? The Halligan filibuster will have practical consequences. Brennan was confirmed by a 63-43 vote the day after Paul started his filibuster. The filibuster of Halligan, conversely, continues with no end in sight. Preventing Obama from getting any nominees confirmed to nation's second most important appellate court is a very important win for the Republican Party as well as a defeat for the country. Apparently, the dysfunction of the Senate has to continue so that the Republican-dominated D.C. Circuit can continue to make the...

The Internet's Patriot Act

flickr/IronCurtaiNYC
AP Photo/Mark J. Terrill, File “I believe that it is very possible,” former Defense Secretary Leon Panetta told a rapt audience at Georgetown University earlier this month, “the next Pearl Harbor could be a cyber attack that would have one hell of an impact on the United States of America.” That’s a belief Homeland Security Secretary Janet Napolitano shares—in January, she urged Congress not to “wait until there is a 9/11 in the cyber world” to act on cyber-security legislation. Subtle warnings, these are not. Over the past 12 months, hackers have broken into the networks of major news organizations, including The New York Times , The Washington Post , and The Wall Street Journal in a string of audacious security breaches. The U.S. Government Accountability Office found that cyber-security incidents reported by federal agencies have risen 800 percent since 2006. Chinese hackers infiltrated the networks of nearly 800 U.S. companies and research institutions between 2000 and 2010,...

The Internet’s Patriot Act

flickr/IronCurtaiNYC
AP Photo/Mark J. Terrill, File “I believe that it is very possible,” former Defense Secretary Leon Panetta told a rapt audience at Georgetown University earlier this month, “the next Pearl Harbor could be a cyber attack that would have one hell of an impact on the United States of America.” That’s a belief Homeland Security Secretary Janet Napolitano shares—in January, she urged Congress not to “wait until there is a 9/11 in the cyber world” to act on cyber-security legislation. Subtle warnings, these are not. Over the past 12 months, hackers have broken into the networks of major news organizations, including The New York Times , The Washington Post , and The Wall Street Journal in a string of audacious security breaches. The U.S. Government Accountability Office found that cyber-security incidents reported by federal agencies have risen 800 percent since 2006. Chinese hackers infiltrated the networks of nearly 800 U.S. companies and research institutions between 2000 and 2010,...

Gun Control’s Long Game

AP Photo/Mike Groll
AP Photo/Mike Groll Y ou could be forgiven for thinking that recent news out of New York proves gun-rights supporters have lawmakers on the run. In mid-February, 500 outraged opponents of gun restrictions held a rally in Albany’s freezing temperatures to protest the state’s new gun-control regulations passed January 15. The president of a large state gun dealer said on January 21 that tens of thousands of assault rifle owners would boycott an April 2014 registration deadline mandated by the law. An anonymous source in Governor Andrew Cuomo’s office responded like a parent who’s given up doing anything about their acting-out teen: “Many of these assault-rifle owners aren’t going to register; we realize that.” That official called it right. Those who expect the New York SAFE Act— which bans the purchase of new assault weapons and requires registration of those owned before the law took effect—to keep new assault rifles out of New York immediately will probably be disappointed. Local...

Scalia's Weird VRA Spat

It is hard to overstate the importance of the Voting Rights Act of 1965. At the heart of the law that ended decades of disenfranchisement in former Confederate states is Section 5, the "preclearance" provision. Section 5 requires jurisdictions with a history of discrimination to get prior federal approval for any changes to state voting laws. The necessity of this provision was clear: without it, states had been able to nullify the commands of the 15th Amendment by passing measures that were formally race-neutral but were discriminatory in practice. Regrettably, the Supreme Court appears poised to eliminate one of the proudest achievements of American democracy. As Esquire 's Charles Pierce puts it , striking down Section 5 would constitute "the final victory of the long march against the achievements of the Civil Rights Movement that began almost before the ink dried on the bill in 1965." The most remarkable example of the contemporary Republican hostility to civil rights came ,...

Secret Wiretapping Cannot Be Challenged Because It's Secret

By delegating broad authority to the executive branch to engage in warrantless wiretapping of Americans, t he Foreign Intelligence Surveillance Act (FISA) raises serious potential constitutional issues. The Fourth Amendment, which forbids "unreasonable" searches and seizures and under which warrantless searches are presumptively unconstitutional, is difficult to square with the kind of powers claimed by Congress and the Executive Branch. Today, however, the Supreme Court decided to duck this crucial constitutional issue based on almost comically illogical reasoning. The Court's 5-4 opinion in Clapper v. Amnesty International was, appropriately enough, written by Samuel Alito, who is more consistently hostile to civil liberties than any justice in at least half a century. The Court ruled that the journalists, organzations, and human rights lawyers bringing the suit lacked the "standing" to bring a lawsuit challenging FISA on 4th Amendment grounds. The American constitutional system...

The Glocks Are Falling! The Glocks Are Falling!

flickr/ Wisconsin Department of Natural Resources
Flickr/Alex P. Yeremenko T he gun crowd is so paranoid about the erosion of their Second Amendment rights that they make Chicken Little look like an actuary. The president’s recent gun proposals include initiatives such as expanded background checks, a ban on certain military-type rifles, and limits on the size of magazines. But if you listen to the gun folks, even these tepid proposals are—to quote a past president of the National Rifle Association—“unconstitutional schemes to gut the Second Amendment.” Iowa Senator Charles Grassley accused Obama of thinking “the Second Amendment can be tossed aside.” Any skeptical glance in the direction of that Glock on their hip is worth a Second Amendment yelp. These objections are overblown. There is little question that Obama’s current proposals would withstand constitutional review. (I was one of about 50 law professors who signed a recent letter saying just that .) The reason is that a constitutional right is not violated every time it is...

An Empty Eighth Amendment Promise

Wikimedia commons
Warren Hill has an IQ below 70. Despite this, barring an unlikely intervention by the Supreme Court, he will be executed by the state of Georgia tonight. The likelihood of this outcome is a lesson in how Supreme Court decisions can't always be taken at face value. That Georgia is about to send a mentally handicapped man to the death chamber is, while dismaying, not in itself surprising. What is unusual about the case, however, is that the Supreme Court issued a ruling in 2002 that would seem to make what Georgia is about to do plainly illegal. In his opinion for the Court in Atkins v. Viriginia , Justice John Paul Stevens wrote that mentally handicapped individuals were categorically excluded from the death penalty by the cruel and unusual punishment clause of the Eighth Amendment. Given Hill's low IQ and the fact that even the state's expert witnesses have recanted their earlier testimony that he was not mentally retarded, the execution of Hill would seem to be a clear violation of...

Now Hiring: A Few Good Judges

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Flickr/Cliff C hief Judge David Sentelle’s recent opinion in Noel Canning v. NLRB holding President Barack Obama’s recess appointments unconstitutional is a trenchant reminder that the D.C. Circuit is, as is often said, the nation’s “second most important court after the Supreme Court.” It has also been, historically, a stepping stone to the high Court. The court now faces four vacancies among 11 judgeships with Sentelle’s February 12 assumption of senior status. But the Obama administration is the first in decades which confirmed no D.C. Circuit judge and has only submitted two names for consideration. The importance and complexity of the circuit caseload means it requires all eleven judges to deliver justice. For this reason—and to increase ideological balance on the court, which has four active and five senior judges whom Republican presidents appointed—Obama and the Senate must expeditiously fill the D.C. Circuit openings. Because of its location and the minuscule number of cases...

Anonymous Is Interested in You

Hacktivists continue to carve out new modes of political action.

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Michael Gottschalk/dapd O n January 25, Anonymous, the international hacktivist collective, declared war on the U.S government. In the past two years, more than 20 Anonymous acolytes have been arrested in a string of high-profile operations, most notably disrupting online service of PayPal, MasterCard, and Visa in retribution for blacklisting WikiLeaks, and hacking a defense intelligence firm’s server and using the company’s credit card records to donate $1 million to war-related charities. Aaron Swartz, a figurehead of the Free Internet Movement who was facing 35 years in prison for downloading the online academic library JSTOR, committed suicide last month. Now, in honor of its fallen brethren, members of Anonymous say they have hacked and downloaded reams of compromising government documents, and likened the stolen data to “fissile material for multiple warheads” aimed at the U.S. Department of Justice. It’s the latest escalation in an unpredictable rise. Without formal...

Checks and Balances on the Western Front

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AP Photo/Brennan Linsley T he release of the white paper justifying the Obama administration's targeted killings program—as well as the confirmation hearings for President Obama's CIA nominee John Brennan —has brought attention back to the role the executive branch plays in the abuses and overreaching that have come to define the "War on Terror." This is how it should be. While the president's power over domestic policy tends to be overrated, the president is the dominant force in military affairs. It's also true that Congress shouldn't be left off the hook. The legislative branch has substantial constitutional authority over military affairs. In the case of the War on Terror, Congress has repeatedly deferred to the White House, starting with the extremely broad Authorization for Use of Military Force against al-Qaeda in 2001. While the targeted killings memo did cite the president's Article II powers to defend the country, the most commonly cited authority for the administration's...

Can We Live Without the Assault Weapons Ban?

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So yesterday, Harry Reid hinted that he'll be introducing a gun-control measure that doesn't include a new ban on assault weapons. If we assume for a moment that other proposed measures eventually pass, but an assault-weapons ban doesn't, how bad an outcome would it be? Let's start by stipulating that it is utterly insane that in this country, anybody can walk into a gun shop and walk out a few minutes later with a military-style rifle whose sole purpose is to enable its user to kill human beings as quickly and efficiently as possible. They're not for hunting, and they're not for defending your home, unless you're Tony Montana. The fact that a lot of people find shooting them fun shouldn't carry any weight as a policy argument. And as we know all too well, they turn mass shootings more deadly. On the other hand, one of the arguments gun advocates make is that the kind of weapons that would be outlawed (for future sales, anyway) under an assault-weapons ban don't kill all that many...

License to Kill

WikiMedia Commons
In a major reportorial coup, NBC's Michael Isikoff has uncovered the "white paper" that the Obama administration used to internally justify extrajudicial killings in the "war on terror." Not only has Isikoff performed a valuable service by making the memo available to the public, this will also be the first time it had been made available to most members of Congress . The memo, unfortunately, will not reassure anyone who thinks that the Obama administration has continued much of the Bush administration's overreaching. The document lays out three conditions justifying killings ordered by the executive branch. First, an "informed, high-level official" in the United States government must determine that an individual poses an "imminent threat of violent attack against the United States." Second, the capture of the individual must be "infeasible." And, third, the operation must be conducted in a "manner consistent with applicable law of war principles." When these conditions are met, the...

How the NRA Is Helping to Pass Gun Control

We're in the early stages of a lengthy process that will involve hearings, competing bills, horse-trading, and the usual ugliness of life in the Capitol Hill sausage factory, but the contours of gun legislation are beginning to take shape. Though President Obama is out campaigning for the full package of reforms he has been advocating, there are indications that the assault weapons ban may get dropped in order to forestall a Republican filibuster in the Senate, and a bipartisan group is about to introduce a bill in the House on gun trafficking and straw purchases. (I'll discuss the assault weapons question in a later post). In other words, the actual legislative process is getting underway. And though it's by no means assured that some gun measures will pass Congress, if any do, we'll partly have the NRA to thank. That's because, I believe, the organization fundamentally misread the role it plays in the minds of the average voter. They've become more extremist in the last two decades...

Our Customers Don't Want a Pregnant Waitress

Fox Searchlight
Having a family shouldn’t cost you your job. It does, again and again—especially if you’re female. Which is one of the reasons women’s pay still isn’t equal. I’ll be writing about this in the months to come, but for today, here’s one way having a family can cost you your job: women still get fired for being pregnant. Although it’s been illegal since the 1978 Pregnancy Discrimination Act , women are still refused a job or let go if they’re pregnant. You’d be shocked, EEOC and employment law folks tell me, at how often employers say so point-blank: Come back after you have the baby . The guys don’t want to look at a pregnant waitress . Housekeeping is hard work; your pregnancy is a potential liability. Our customers are uncomfortable with a pregnant driver . All that’s illegal. It’s wonderful that we can talk about Sheryl Sandberg going home every day at 5:30 to be with her kids. And it’s wonderful that we can have the advanced conversation about women needing to stand up for themselves...

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