Eugene Volokh's Blog, page 2630
January 20, 2012
The Privilege Against Self-Incrimination and Foreign Prosecutions
Reader John Lunde points to the story about the criminal division chief of the Arizona U.S. Attorney's Office taking the Fifth Amendment in the Congressional investigation of Operation Fast and Furious, and asks: What if the witness is given immunity from prosecution — which normally blocks the invocation of the privilege against self-incrimination — but "still refuses to testify for fear of Mexican prosecution? Would that be a valid defense?"
The answer is that fear of foreign prosecution does not suffice to allow the assertion of a privilege against self-incrimnination, see United State v. Balsys (1998) (7–2) (Ginsburg & Breyer, JJ., dissenting), at least absent some deliberate attempt by the U.S. and Mexico to use this as a plan for gathering information for a Mexican prosecution. "Concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause," unless (for instance) "the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and ... the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries" (in which case "that prosecution was not fairly characterized as distinctly 'foreign'").
Occupy Wall Street and Popular Constitutionalism
The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of "popular constitutionalism" — a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.
Today, however, a group inspired by OWS is holding a series of "Occupy the Courts" protests, which do focus on constitutional issues, mostly attacking the Supreme Court's campaign finance decisions:
The "Occupy" movement will turn its focus on the nation's highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.
The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say....
The one-day event dubbed "Occupy the Courts" is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.
"Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights," the Occupy the Courts website states.
There is some irony in the OWS protestors campaign against "corporate personhood." OWS gets a great deal of financial and organizational support from labor unions and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court's Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.
Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from "the 1%" to "the 99%," including OWS activists themselves.
Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.
Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It's possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.
Margaret Thatcher and the Jews
In this recent column, conservative writer David Frum points out that Margaret Thatcher represented a heavily Jewish constituency, had numerous Jewish advisers and cabinet members, and won the Jewish vote in her electoral campaigns as leader of the Conservative Party.
These are not new revelations. As I pointed out in this post, which cites Thatcher's success with British Jews along with other examples, the US pattern of Jewish voters overwhelmingly supporting the political left is unusual relative to other English-speaking democracies. In Britain, Canada, and Australia, Jews either disproportionately vote for right of center parties or at least do so at roughly the same rate as the gentile population. Some of the conservative politicians supported by Jews in these countries are not as far to the right on economic and foreign policy issues as the US Republican Party. But that certainly wasn't true of Thatcher, or some of the others. These patterns undermine claims that there is some sort of general Jewish affinity for the left. Even in the United States, Russian immigrant Jews (about 12% of the Jewish population), vote overwhelmingly Republican.
As I explained in this series of posts, native-born American Jews' unusual voting patterns are in large part the result of the link between the Republicans and the Religious Right, which many Jews see as anti-Semitic, and as seeking to establish Christianity as a quasi-official religion. Many Jews also dislike that movement's extreme social conservatism. Jewish opinion doesn't differ much from the national average on economic policy, but Jews are much more socially liberal than gentiles. Conservative parties elsewhere in the English-speaking world have fewer Religious Right connections than the Republicans and are less socially conservative than they are.
Absent the Religious Right, American Jews would not suddenly all become loyal Republicans. But they would probably divide their votes between the parties much more evenly than is the case today.
UPDATE: As I noted in my very first post on the subject, I am well aware that Jews disproportionately voted Democratic even before the rise of the Religious Right. But that does not explain why they continue to be overwhelmingly Democratic today, even as many other groups that were part of the New Deal Democratic coalition have become much more evenly divided:
I should note that in my view the Religious Right factor is what explains the overwhelming dominance of liberalism among American Jews today. It does not explain their support for the Democratic Party in earlier periods (e.g. — from the 1930s to the 1950s), when the political situation was very different and Jews themselves were much poorer then they became later. Many other groups were overwhelmingly Democratic at the high point of the New Deal coalition (e.g. — Catholics, "white ethnics," etc.) but became far less so as they became more affluent and the political landscape changed. Strikingly, the Jews did not change similarly, and I believe that the Religious Right factor is a crucial reason why they didn't.
How Should the Supreme Court Rule on the Individual Mandate?
Commenter Brandon, a frequent critic of my posts on the individual mandate, offers the following question tonight in a comment thread:
Orin,
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur's piece quoted by Barnett). Not to mention your generally convenient use of "law professor hypotheticals," which get you nowhere in the real world of private practice (which I've been a part of now for more than 4 years). So perhaps you'd like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically, DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I?????? I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided. Thnx.- Brandon
I wasn't planning to blog on this. But because Brandon asks so nicely, I thought I would respond.
Now that the mandate case has reached the Supreme Court, the case triggers conflicting instincts for me. On one hand, as I've said before, I'm a federalism guy. I think limits on federal power play a critical role in our federal system, and I think Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society. The Commerce Clause was never intended to give the federal government a general police power. It was meant to just allow the federal government to regulate interstate commerce. That part of me would cheer if the Supreme Court struck down the mandate.
On the other hand, I'm also a Burkean conservative stare decisis guy, and I'm acutely aware of the Supreme Court's long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it's surprisingly hard to do that, and that unprincipled or unstable lines don't last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let's imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court's decision merely reopens the hornet's nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court's decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.
That explains why I have posted a lot of "law professor hypotheticals" about the implications of the mandate challenge. The more I see the theory driving the challenge as workable and principled, the more I favor it. I can't gauge how much the challenge triggers my Burkean objections without understanding exactly what it is and how it might work.
Now add another consideration. I also value the Supreme Court deciding cases independently of politics as much and often as possible. This is a sort of Wechslerian neutral principles idea that the Justices shouldn't be political actors in robes. Horribly out of fashion in the faculty lounge, to be sure. But the neutral principles part of me is pretty dubious about the mandate challenge because the challenge seems so transparently political. The Affordable Care Act is President Obama's signature legislative achievement. Everyone who opposes the constitutionality of the mandate just so happens to also oppose the mandate politically. And the most commonly-asserted constitutional argument against the mandate wasn't even thought up until around just before the mandate was passed, only to be readily embraced by the same folks that tried to stop the legislation in Congress but failed.
The obvious political valence of the mandate challenge gives me a lot of pause, and it adds a significant complication in my view of what the Court should do. On one hand, it's obvious that any decision striking down the President's signature legislation would have enormous political ripple effects. Given that the theory behind the challenge was largely made up to stop the mandate, and it's hard to imagine more than 5 votes to strike down the mandate, that would make the Supreme Court a political player in ways that dwarf recent examples. The narrative of the decision as deeply political would resonate with a lot of people. But my concerns go beyond that. Because I don't like it when the Court's decisions have an obvious political valence, I start to care about the vote count and the political resonance of the opinions. All other things being equal, I'd greatly prefer a vote line-up that didn't break along the obvious 5–4 political lines, and that is written in ways that echo partisan concerns. A 5–4 conservative/liberal split written in ways that echo the political framing of the challenge (and for some might be) the Justices reflecting their politics. I would prefer a line-up with cross-party voting, and opinions with more lasting and long-term legal gravitas; something that tells us that there is more than just politics afoot here.
Where do these and other sometimes-competing concerns lead? In my case, they lead me to conclude that I can't know what I would prefer the Supreme Court to do unless I know what the options are. I'm less concerned with whether the Court strikes down or upholds the mandate than how it does so. If I can dream about a perfect world, I would like to see a 9–0 decision that identifies a widely-shared neutral principle deeply rooted in precedent that also limits the scope of the federal government in a significant way, But that's a pipe dream. To borrow from Donald Rumsfeld, you go into Court with the Justices and the precedents you have, not the Justices and the precedents you might want.
The realistic options therefore are much more confined. When I imagine the realistic options, I can imagine both a hypothetical majority opinion striking down the mandate that I would prefer to a hypothetical dissent upholding it and a hypothetical majority opinion upholding it that I would prefer to a hypothetical dissent striking it down. It depends on how the opinions are written, what they would say, and whether they would identify clear lasting principles outside of the short-term political environment of the present. For example, is a hypothetical decision upholding the mandate a 5–4 Breyer opinion that dismisses federalism, or is it a 8–1 Roberts opinion that recognizes the great value of federalism but concludes reluctantly in a Sutton-esque way that the lack of a principle and the weight of stare decisis dooms the challenge? Is a hypothetical decision striking down the mandate one that is easily circumvented by a future Congress and is easily construed as a one-time-only way to stop legislation most Republicans oppose, or is a deeper principle adopted?
Anyway, sorry for the long post, which I'm sure will leave a lot of readers unsatisfied and which still leaves a lot out. That's part of the reason I wasn't planning on posting about this. Hopefully at least some readers will find it interesting.
January 19, 2012
"Appellate Group of the Year"
I'm pleased to report that my colleagues in the Mayer Brown LLP Supreme Court and Appellate Practice Group — with which I'm a part-part-part-part-time Academic Affiliate — were named the Appellate Group of the Year by Law360.com. It's a very well-deserved and hard-earned honor.
Article in High School Newspaper Criticizing Homosexuality = "Bullying"?
The Shawano High School newspaper decided to run dueling student opinion pieces on whether same-sex couples should be able to adopt children; the student article that answered the question "no" said, among other things, quotes Leviticus 20:13 ("If there is a man who lies with a male as those who lie with a woman, both of of them have committed a detestable act; they shall surely be put to death. Their bloodguiltiness is upon them."). The school district then publicly apologized for the column, as an "[o]ffensive article[] cultivating a negative environment of disrespect," and said that it is "taking steps to prevent items of this nature from happening in the future." And in a Fox interview, the school superintendent labeled the column a form of "bullying."
Now I've long thought that Hazelwood School Dist. v. Kuhlmeier (1988) was correct, and that public K-12 schools should be free to control what is published in the school newspaper. If a school wants the newspaper to be its voice, it should be entitled to dictate which subjects and which viewpoints it chooses to carry, even when it speaks through the speech of students.
But what troubles me here is the superintendent's willingness to label such speech as a form of "bullying," which is speech that schools often ban even outside the school's own newspaper, that schools often try to restrict even when it is said outside school, and that legislatures sometimes even try to criminalize. Indeed, the Shawano School District's bullying policy provides that "bullying" may lead to "warning, suspension, exclusion, pre-expulsion, expulsion, transfer, remediation, termination, or discharge. Disciplinary consequences will be sufficiently severe to try to deter violations and to appropriately discipline prohibited behavior."
I've long been troubled by anti-bullying policies and criminal laws, partly because "bullying" is a vague and potentially very broad term, which could easily be used to refer to political advocacy and expression of religious views. This incident, it seems to me, helps illustrate that some school officials indeed view the term "bullying" this broadly.
Sandefur Replies to Kerr
I, for one, think Orin's post below on Golan v. Holder is pretty funny. The Pacific Legal Foundation's Tim Sandefur, however, is not amused and offers a substantive response here.
Independence Institute brief on Medicaid mandate
On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here's the Summary of Argument:
By imposing the Medicaid mandates in the Affordable Care Act ("ACA"), Congress exceeded the scope of its enumerated powers. If allowed to stand, those mandates could be the death-knell for the Constitution's finely calibrated system of federalism. The states truly would be little more than agencies for Congress to "commandeer" at will.
The Founders created and the People ratified a Constitution protecting the States' role as limited "sovereigns." As this Court has ruled repeatedly, the states' sovereign "independence" entitles them to make decisions within their sphere based on their own policy judgments, free of federal coercion. As explained below, this rule and the closely-related principle of federal non-coercion is of particular constitutional importance in financing health and social services.
In sustaining the Medicaid mandates, the United States Court of Appeals for the Eleventh Circuit overlooked both Founding-Era constitutional principle and modern Supreme Court doctrine. It also overlooked aspects of the Medicaid mandates that particularly aggravate their coercive qualities. Insofar as the ACA authorizes withdrawal of all Medicaid funds from States that choose not to submit to the Medicaid mandates, that statute slashes at the heart of American federalism. It is unconstitutional and void.
Intelligent comments are welcome, although experience suggests that there will also be plenty of comments from twits who have not read the brief, yet proclaim their absolute certainty about supposedly fatal errors in its legal reasoning. Rob's summary of brief is available on his blog.
Congrats to Two GW Law Grads Clerking at the Supreme Court in OT2012
Pardon the parochial posting, but I wanted to (where I teach) for accepting offers to clerk for Justices at the United States Supreme Court starting this coming summer. Mark Taticchi '10 will be clerking for Justice Kennedy, and Ryan Watson '07 will be clerking for Justice Alito. In the last six years, since the beginning of the Roberts Court, GW Law grads have obtained clerkships from each of the five Republican-appointed Justices.
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