Eugene Volokh's Blog, page 2743
July 23, 2011
Prof. Michael McConnell on the Debt Ceiling and Social Security
Prof. McConnell has a post on this at the Hoover Institution's Advancing a Free Society blog. An excerpt:
As recently explained in much more detail by legal scholars Mark Scarberry and Nancy Altman, and by the aptly-named Thomas Saving, a former public trustee of the Social Security and Medicare Trust Funds, in an op-ed in the Wall Street Journal, reaching the debt ceiling will not affect the ability of the Social Security Administration to pay its obligations.
The Social Security trust fund holds about $2.4 trillion in U.S. Treasury bonds, which its trustees are legally entitled to redeem whenever Social Security is running a current account deficit. Thus, if we reach the debt ceiling (which I continue to think is a remote prospect, even if less remote than it seemed a week ago), this is what will happen. The Social Security trust fund will go to Treasury and cash in some of its securities, using the proceeds to send checks to recipients. Each dollar of debt that is redeemed will lower the outstanding public debt by a dollar. That enables the Treasury to borrow another dollar, without violating the debt ceiling. The debt ceiling is not a prohibition on borrowing new money; it is a prohibition on increasing the total level of public indebtedness. If Social Security cashes in some of its bonds, the Treasury can borrow that same amount of money from someone else....
President Obama is therefore wrong when he says that failure to raise the debt ceiling might result in not sending out Social Security checks. Many bad things might happen, but not that.
I know nothing about the subject myself, but I have great confidence in Prof. McConnell's work.
Chief Justice Roberts and Current Legal Scholarship
CQ's Kenneth Jost assesses "Chief Justice Roberts' Ill-Informed Attack on Legal Scholarship" on his blog. As had been widely reported and discussed, Chief Justice Roberts was dismissive of the value of much legal scholarship at the Fourth Circuit judicial conference in June.
"Pick up a copy of any law review that you see," Roberts said, "and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar."
As I told Jost for his post, I think there is something to Roberts' critique. Much legal scholarship has little relevance to the bar or the bench. At the same time, it would be a mistake to believe that practical utility is the only measure of legal scholarship. Empirical analyses of judicial behavior may not help judges resolve cases, but they can certainly aide in our understanding of the legal system. Much scholarship also has value for its own sake. [UPDATE: Even if some scholarship has intrinsic value, that does not necessarily mean it should be financed by law student tuition.]
Somewhat ironically, as Jost notes, this past term featured several opinions that relied heavily upon legal scholarship for their analysis, including Wal-Mart v. Dukes which extensively cited the work of the late Richard Nagareda.
Somewhat coincidentally, two legal scholars have a draft empirical study of the Supreme Court's use of legal scholarship over the past 61 years. It finds that the Supreme Court actually cites legal scholarship quite frequently — in approximately one third of its cases. As Jost notes, eight of the current Justices cited legal scholarship at least once in their opinions this past term. The one exception: Chief Justice Roberts.
D.C. Circuit Strikes Down SEC's Proxy Access Rule
Yesterday, in Business Roundtable v. SEC, the U.S. Court of Appeals for the D.C. Circuit struck down the Security and Exchange Commission Rule 14a-11, the "proxy access" rule on the grounds that the Commission acted arbitrarily and capriciously because it failed "adequately to assess the economic effects of a new rule." Wrote Judge Ginsburg for the court:
the Commission inconsistently and opportunistically framed the costs and benefits of the rule; failed adequately to quantify the certain costs or to explain why those costs could not be quantified; neglected to support its predictive judgments; contradicted itself; and failed to respond to substantial problems raised by commenters.
Under both the Exchange Act and Investment Company Act of 1940, Judge Ginsburg noted, the SEC is required to consider a rule's " effect upon efficiency, competition, and capital formation," and this it failed to do. The rule had been adopted by a split 3–2 commission vote.
Professor Bainbridge proclaims this "a solid win for the good guys," and rounds up blogospheric reactions.
July 22, 2011
Posner & Vermeule: Obama Should Raise Debt Ceiling On His Own
Law professors Eric Posner and Adrian Vermeule, authors of The Executive Unbound: After the Madisonian Republic, have an NYT op-ed arguing President Obama should announce he will raise the debt ceiling unilaterally if a deal is not soon reached.
Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president's role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed.
When Abraham Lincoln suspended habeas corpus during the Civil War, he said that it was necessary to violate one law, lest all the laws but one fall into ruin. So too here: the president may need to violate the debt ceiling to prevent a catastrophe — whether a default on the debt or an enormous reduction in federal spending, which would throw the country back into recession.
A deadlocked Congress has become incapable of acting consistently; it commits to entitlements it will not reduce, appropriates funds it does not have, borrows money it cannot repay and then imposes a debt ceiling it will not raise. One of those things must give; in reality, that means that the conflicting laws will have to be reconciled by the only actor who combines the power to act with a willingness to shoulder responsibility — the president.
Norwegian Terror Suspect Arrested [UPDATE: Motives May Be Nationalist and Anti-Islamic]
A suspect has been arrested in the Norwegian terror attacks. According to VGNett, his name is Anders Behring Breivik:
[image error]Terror Suspect Anders Behring Breivik. Photo published by VGNett.
UPDATE:
An automated Google translation of a story at VG Nett (the web site of a national newspaper in Norway) includes this passage (sorry, I don't read Norwegian, so I can't vouch for the translation):
Critical of Islam
In online debates marks Anders Behring Breivik as well read, and one with strong opinions about Norwegian politics. He promotes a very conservative opinions, which he also called nationalist. He expresses himself strongly opposed to multiculturalism — that cultural differences can live together in a community.
Breivik has had many posts on the site Document.no, an Islam-critical site that publishes news and commentary.
In one of the posts he states that politics today no longer revolves around socialism against capitalism, but that the fight is between nationalism and internationalism. He expressed clear support for the nationalist mindset.
Anders Breivik Behring has also commented on the Swedish news articles, where he makes it clear that he believes the media have failed by not being "NOK" Islam-critical.
Advice from Professor Robbins on Taking the Bar
My friend and Washington College of Law colleague Ira Robbins offers the following advice on FB to students taking the July bar. I'm pleased to pass it along. And, to everyone taking the bar next week, Good Luck!
To WCL grads taking the Bar exam next week:
1) Good luck!!
2) On the night between the two days of the exam don't spend any time checking to see how you did on the first day's questions. That's completely unproductive. You don't need to get everything right; you just want to pass. Better to get some sleep.
3) Don't celebrate finishing the bar exam by doing things that could get you disbarred.
4) Again — GOOD LUCK!!
Man Declared Mentally Incompetent Solely Based on His Religious Beliefs
That's what the Ohio Court of Appeals (State v. Daley, decided yesterday) said happened in the court below; the appellate court reversed the trial court's mental incompetence finding.
Daley was charged in March 2010 with retaliation, intimidation, aggravated menacing, menacing, and telecommunications harassment. The charges stemmed from allegedly threatening voicemail messages left by Daley on the telephone messaging system of an employee of the Cuyahoga County Support Enforcement Agency ("CSEA"). The charges also stemmed from an allegedly threatening letter written by Daley to the CSEA employee.
The trial court referred Daley to the court's psychiatric clinic for a competency evaluation and a hearing was held on same. The evaluating psychiatrist, Dr. Stephen Noffsinger, diagnosed Daley with psychotic disorder, not otherwise specified, and opined that Daley was not competent to stand trial because he was not able to assist in his defense. Daley declined an independent evaluation.
Daley testified at the competency hearing that he had been and was able to continue assisting his attorney in his defense. He also testified that his descriptions of the American legal system, such as his description of divorce court as the "high court of Satan," were not meant to hurt anybody, but were based on his religious belief that divorce is against the word of God.
At the conclusion of the hearing, the trial court found Daley incompetent to stand trial and ordered him hospitalized for restoration to competency. The trial court also ordered that Daley be treated with antipsychotic medication if needed....
Upon review, we do not find that there was "some reliable, credible evidence supporting the trial court's conclusion" that Daley was incompetent. Rather, Dr. Noffsinger's opinion that Daley was incompetent, formulated after an hour and ten-minute evaluation, was based solely on Daley's religious beliefs. Specifically, Dr. Noffsinger opined that Daley, a "radical Christian," "expresses such extreme intensity of religious belief in very unorthodox religious beliefs to the point to constitute psychosis." Noffsinger further testified that treating Daley would "change his psychotic symptoms of which are a religious theme[,]" so that his "intensity and [ ] preoccupation with his religious beliefs will be greatly decreased."
Daley's religious beliefs are constitutionally protected, however. Because the record demonstrates that Dr. Noffsinger's diagnosis was based solely on Daley's religious beliefs, we find that the trial court erred in finding him incompetent.
Credit for Oslo Attacks Retracted
A couple of hours ago, the New York Times reported that a terrorist group took credit for the attack:
A terror group, Ansar al-Jihad al-Alami, or the Helpers of the Global Jihad, issued a statement claiming responsibility for the attack, according to Will McCants, a terrorism analyst at C.N.A., a research institute that studies terrorism. The message said the attack was a response to Norwegian forces' presence in Afghanistan and to unspecified insults to the Prophet Muhammad. "We have warned since the Stockholm raid of more operations," the group said, according to Mr. McCants' translation, apparently referring to a bombing in Sweden in December 2010. "What you see is only the beginning, and there is more to come." The claim could not be confirmed.
Now Will McCants, the Times's source, reports that this claim of credit has been retracted:
This [claim of credit in Arabic] was posted by Abu Sulayman al-Nasir to the Arabic jihadi forum, Shmukh, around 10:30am EST (thread 118187). Shmukh is the main forum for Arabic-speaking jihadis who support al-Qaeda. Since the thread is now inaccessible (either locked or taken down), I am posting it here. I don't have time at the moment to translate the whole thing but I translated the most important bits on twitter.
Update: Abu Sulayman has now issued a retraction, stating clearly that "Helpers" was not involved in the operation and that his statement was not an official statement. He says those who carried out the attacks "must surely be known to all."
I assume that Abu Sulayman is implying that al-Qaeda (or an al-Qaeda-linked group) is responsible.
Credit for Olso Attacks Retracted
A couple of hours ago, the New York Times reported that a terrorist group took credit for the attack:
A terror group, Ansar al-Jihad al-Alami, or the Helpers of the Global Jihad, issued a statement claiming responsibility for the attack, according to Will McCants, a terrorism analyst at C.N.A., a research institute that studies terrorism. The message said the attack was a response to Norwegian forces' presence in Afghanistan and to unspecified insults to the Prophet Muhammad. "We have warned since the Stockholm raid of more operations," the group said, according to Mr. McCants' translation, apparently referring to a bombing in Sweden in December 2010. "What you see is only the beginning, and there is more to come." The claim could not be confirmed.
Now Will McCants, the Times's source, reports that this claim of credit has been retracted:
This [claim of credit in Arabic] was posted by Abu Sulayman al-Nasir to the Arabic jihadi forum, Shmukh, around 10:30am EST (thread 118187). Shmukh is the main forum for Arabic-speaking jihadis who support al-Qaeda. Since the thread is now inaccessible (either locked or taken down), I am posting it here. I don't have time at the moment to translate the whole thing but I translated the most important bits on twitter.
Update: Abu Sulayman has now issued a retraction, stating clearly that "Helpers" was not involved in the operation and that his statement was not an official statement. He says those who carried out the attacks "must surely be known to all."
I assume that Abu Sulayman is implying that al-Qaeda (or an al-Qaeda-linked group) is responsible.
President Obama Rejects Authority to Violate Debt Ceiling
At the tail end of an NYT story there is a bit of news for those interested in the debate over the constitutionality of the debt ceiling and whether the President could issue debt unilaterally if the ceiling is not raised. President Obama addressed the question at a town hall meeting at the University of Maryland this morning:
Mr. Obama for the first time addressed — and ruled out — the idea that the Constitution empowers a president to increase the debt limit to prevent default and, as he put it, "basically ignore" the federal law requiring that the debt ceiling be set by statute. The argument of "the constitutional option," which President Bill Clinton — like Mr. Obama a former constitutional law instructor — endorsed in an interview this week, is based on the 14th Amendment's provision that the validity of the United States debt "shall not be questioned."
"I have talked to my lawyers," Mr. Obama said, and "they are not persuaded that that is a winning argument."
Steve Benen thinks this still leaves the President some wiggle room; I'm skeptical.
In a related item, Jack Balkin explained here why former President Bill Clinton said he'd assert the authority to violate the debt ceiling, but Obama won't. Also, here's Laurence Tribe's latest, responding to this post from Neil Buchanan.
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