Within the Scope

Blogging on Administrative Law and the Public Sector

Wednesday, March 26, 2008

Habeas for the Rest of Us

Because habeas cases are generally only of interest to a small natural constituency – most typically, inmates, jailers and lawyers with a genuine civil libertarian bent I cautiously include some description of yesterday's U.S. Supreme Court decision in Medellin v. Texas on these pages here. Yet, because of the truly profound separation of powers and federalism questions that were raised in this case, the Court's analysis (and divisions) should be of broader interest.

José Ernesto Medellín, a Mexican national, was convicted of capital murder in Texas district court and sentenced to death for his participation in the rape and murder of two teenage girls. After his arrest, Medellín was not advised of his rights, under Article 36 of the Vienna Convention on Consular Relations, to contact a Mexican consular official. Under Texas law, Medellín waived his rights by not asserting them at trial. In the Case Concerning Avena and Other Mexican Nationals, the International Court of Justice (ICJ) held that the United States had violated the Vienna Convention on Consular Relations by failing to inform 51 named Mexican nationals, including Medellín, of their rights under the Vienna Convention. The ICJ found that those named individuals were entitled to review and reconsideration of their U. S. state-court convictions and sentences, regardless of their failure to comply with state rules governing challenges to criminal convictions.

In Sanchez-Llamas v. Oregon, a decision that was issued after the decision in Avena, but involving individuals who were not named in the Avena judgment, the U.S Supreme Court held, contrary to the ICJ's determination, that the Vienna Convention did not preclude the application of state default rules.

President George W. Bush then issued a memorandum stating that the United States would "discharge its international obligations" under Avena "by having State courts give effect to the decision."

The High Court later concluded that neither the IJC decision in Avena nor the President's Memorandum to the Texas courts constituted enforceable federal law that pre-empted the state rules of procedure.

As Chief Justice Roberts wrote for himself and four others:

The United States maintains that the President's Memorandum is authorized by the Optional Protocol and the U. N. Charter. That is, because the relevant treaties "create an obligation to comply with Avena," they "implicitly give the President authority to implement that treaty-based obligation"....

We disagree. The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.

Similarly, the Court's majority dispatched the Government's argument that the President could direct the state courts, by way of a memo, to apply the ILJ decision under the Executive's claim settlement powers.
[T]he Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State's police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws. The Executive's narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memorandum.
The Court's complete analysis, as well as the interesting separate opinions of Justices Stevens and Breyer, is accessible here.

Tuesday, March 18, 2008

In Today’s Introductions

Senator Steve Murphy (DFL-Red Wing) today introduced a measure that would transfer the functions of the Campaign Finance and Public Disclosure Board to the Legislative Auditor.

The bill, S.F. 3783, has been referred to the Committee on State and Local Government Operations and Oversight, and is accessible here.

Monday, March 17, 2008

Eighth Circuit: Incontrovertible Proof Must Underlie Video Game Restriction

In an interesting opinion issued today, a unanimous panel of the United States Court of Appeals for the Eighth Circuit upheld a lower court’s entry of an injunction barring the enforcement of Minnesota’s Restricted Video Games Act. Under the Act, a person under the age of 17 may not knowingly rent or purchase a video game that has been rated either “AO” (Adults Only) or “M” (Mature) by the Entertainment Software Rating Board. The Entertainment Software Rating Board is a non-profit, self-regulatory body established by the Entertainment Software Association to rate computer and video game content.

As the panel reasoned, because violent video games are a protected form of expression, Minnesota’s regulation of access to these games was subject to strict scrutiny. As Circuit Judge Roger L. Wollman summarized:
We have held that violent video games are protected free speech. Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003) (hereinafter Interactive Digital), a holding that the State recognizes is binding upon us, but one which it hopes might be overturned in an en banc review of this case. In light of Interactive Digital, any restriction on the purchase or rental by minors of violent video games is subject to strict scrutiny analysis. We will find the Act constitutional, then, only if it is “necessary to serve a compelling state interest and . . . is narrowly tailored to achieve that end.”
....

Whatever our intuitive (dare we say commonsense) feelings regarding the effect that the extreme violence portrayed in the above-described video games may well have upon the psychological well-being of minors, Interactive Video requires us to hold that, having failed to come forth with incontrovertible proof of a causal relationship between the exposure to such violence and subsequent psychological dysfunction, the State has not satisfied its evidentiary burden. The requirement of such a high level of proof may reflect a refined estrangement from reality, but apply it we must.
The pane’s complete analysis – including literary allusions to the Bible’s Jael and Shakespeare’s Macbeth – is accessible here.

Hail to the (New) Chiefs

In a press conference this morning, Governor Tim Pawlenty announced that he has appointed Eric J. Magnuson, Chairman of the Commission on Judicial Selection, as the Chief Justice of the Minnesota Supreme Court. Chairman Magnuson will succeed the Honorable Russell A. Anderson. Chief Justice Anderson, who announced his retirement from the Supreme Court last Monday, noted that his retirement from the Court will be effective June 1, 2008.

A release regarding the Governor’s announcement is accessible here and the remarks he made last week in reply to Chief Justice Anderson’s announcement are accessible here.

Following Magnuson as the Chairman of the Commission on Judicial Selection will be at-large Commission member Ronald J. Schutz. Mr. Schutz heads the the Intellectual Property litigation group within the law firm of Robins, Kaplan, Miller and Ciresi. A release on that appointment is accessible here.

Friday, March 14, 2008

Easy Listening – The Week of March 10

Not having any decisions that I wanted to summarize for you, I thought that I would highlight a few of the podcasts that I am enjoying these days:

n National Public Radio’s “Justice Talking” Examines Election Law: The NPR Series “Justice Talking” takes a look at the current debates over photo identification requirements for in-person voting and the reliability of electronic voting machines. The 51-minute audio clip is accessible here.

n C-SPAN’s Newsmakers – Focus on the Protect America Act and the Foreign Intelligence Surveillance Act: Assistant Attorney General for National Security Kenneth Wainstein, is interviewed by reporters Eric Lichtblau (of the New York Times) and Tim Starks (of Congressional Quarterly). The 35-minute audio clip is accessible here and a video clip is accessible here.

n American Enterprise Institute – Book Forum: Where To Next for Air Pollution Policy? In mid-February, the American Enterprise Institute hosted a discussion on Joel M. Schwartz and Steven F. Hayward’s book Air Quality in America. The panel discussion on the book includes a discussion of domestic air pollution trends, analyses of existing health studies and suggestions for the future direction of our air quality regulations. Both the audio clip of the forum, and the related power point presentations, are accessible here.

Wednesday, March 12, 2008

Right from the Top: Justices Speak About Quality Writing – And Why it Matters

Bryan Garner, of LawProse, Inc., has released an unbelievably useful series of interviews with Justices of the U.S. Supreme Court on legal writing. (Eight of the nine sitting Justices are interviewed on the topic, with, apparently, Justice David Souter declining an invitation to be a part of this series.)

Evangelizing that quality writing is an indispensable part of successful lawyering, Garner’s videos strike with the bracing force of a bucket of cold water. There is nothing subtle about Chief Justice John Roberts’ remark that oral arguments in a case are but “the tip of the iceberg,” and a focus there is a poor service to clients if the Justices must “hack through the brief with a machete….” { Gulp.}

The short videos, which would make a worthwhile set of coffee breaks for any lawyer who is committed to better craftsmanship, are accessible here.

Sunday, March 09, 2008

Reading Table: 3 Worthwhile Additions

Among the Administrative Law articles posted to the Social Science Research Network this week are a trio of interesting items, any one of which would be worth some space on your reading table. The articles include:

n Admin Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, from Professors Brian D. Galle and Mark Seidenfeld, of the Florida State University College of Law. Galle and Seidenfeld contend that the “modern doctrine towards requiring in all cases clear congressional authorization for preemption or other expansions of federal power is mistaken,” and in many cases, yields a “negligible, or downright counter-productive” result. More strikingly still, the duo maintain that when assessing the constitutional values implicated by federal regulations which preempt state law, “agencies are in many contexts better suited to consider federalism concerns than is Congress, or, for that matter, the federal judiciary.” As Galle and Seidenfeld reason, the constitutional values at stake in such a conflict will often “depend on the kind of policy judgments at which agencies are most skilled.”

The complete article is accessible here.

n Privatization of State Administrative Services, from Professor Drury D. Stevenson, of the South Texas College of Law.

Professor Stevenson takes a critical look at recent privatization efforts and challenges popular notions that “contracts with the government can ever function with free market ideals” or that “harnessing free-market forces will enhance the efficiency and productivity of government agencies, by replacing the bureaucracy with profit-motivated workers.” Among his critiques is that “Government agencies and programs can be massive compared to the average firm, and there are few companies large enough to take on the work of an agency when it wants to privatize some of its functions.” Concludes Stevenson, “[i]n the end, it is not clear that we were any worse off having civil servants within the traditional bureaucracy perform the government’s tasks.”

The complete article is accessible here.

n Independent Agencies and the Unitary Executive Debate: An Empirical Critique, from Professor Adam Candeub of the Michigan State University College of Law and Keith S. Brown of the CNA Corporation.

Continuing their earlier work plumbing the database of more than 8,200 votes cast by members of the Federal Communications Commission, Candeub and Brown argue that the highly-personal policy agendas pursued by members of independent commissions tends to blunt both the reach of Presidential and Congressional power – and with it, sources of democratic accountability. Write Candeub and Brown: “Congress is at least accountable to some of the voters; commissioners are beholden only to their political sponsors, as well as their sponsors in industry and other special interests…. These ‘micro-institutional’ features emerge as the drivers of agency behavior, not the President or Congress (at least directly).”

The complete article is accessible here.

Saturday, March 08, 2008

Slim Fast for Fiscal Years '09, '10 and '11

Yesterday, Governor Tim Pawlenty unveiled his plan to address the state's projected $935 million deficit and to re-allign various budget categories. The plan addresses line items in the current 2008-2009 biennium and the "fiscal tails" for the "out years" of the next biennium.

For agency personnel (and others), who would be interested to learn about specifics of the Governor’s plan – a one page summary of the proposal is accessible here; a 43-page program-by-program summary of the plan is accessible here; a press release accompanying the Governor’s remarks is accessible here; and a recording of the Governor’s remarks to reporters is accessible here.

Friday, March 07, 2008

Our Comma Delimited Social Compact

Ross E. Davies, Professor of Law at George Mason University School of Law, posted to the Social Science Research Network on Wednesday a fascinating article on the various versions of the Second Amendment that are in circulation – notably historical versions of Second Amendment that contain no commas, one comma, two commas and three commas sub-dividing the constitutional text. Indeed, Davies’ article points to differently punctuated versions of the amendment that were circulated and ratified by the various states.

The proper parsing and punctuation of the amendment could be an important feature of the March 18 U.S. Supreme Court oral argument in District of Columbia v. Heller. In advance of the argument in this landmark gun control case, Davies asks: “Does the Court have, for example, the power to say a three-comma version of the Second Amendment is part of the Constitution, and the no-comma, one-comma, and two-comma versions are not?”

An abstract and a copy of Davies' article are accessible here.

Thursday, March 06, 2008

Ohio's Hourly Wage Requirement for Petition Circulators Struck Down

In an interesting opinion issued yesterday, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit struck down an Ohio statute which provided that professional petition circulators could only be paid on an hourly basis.

Because the appellant, Citizens for Tax Reform, was able to establish that the hourly wage requirement made it far more costly to produce the number of signatures needed to qualify a proposed constitutional amendment, when compared to paying petition circulators on either a per-signature or per-volume basis, the appellate panel held that the Ohio law unconstitutionally burdened political activity protected by the First Amendment. (The Ohio law made collecting signatures for pay, on a per-signature or per-volume basis, a felony.)

Yesterday’s opinion glides past other rulings, notably from appellate panels in the Second, Eighth and Ninth Circuits, which upheld similar – although admittedly less restrictive – regulations on petition circulator compensation.

The Sixth Circuit panel’s analysis, and its discussion of how those other cases were distinguishable, is accessible here.

Monday, March 03, 2008

Passing of the Mentor-in-Chief: William F. Buckley, Jr.

In the days that have followed his death last Wednesday, I have been taking in the tributes and eulogies that have been offered for the author and publisher William F. Buckley, Jr. Those remarking upon the passing of the Great Man have sung his praises and credited him with every conceivable honor – including the election of Ronald Reagan and America’s winning of the Cold War. While praises are certainly due – and perhaps because they are due – some the over-the-top hyperbole about his life hit me a bit hard. Why should we endeavor to inflate Buckley’s legacy, I wondered, when his real-life accomplishments as an author, magazine publisher, talk-show host and political organizer included enough successes to fill the lives of a dozen men? It seemed so odd and unnecessary.

Yet, listening to the procession of eulogies, Buckley’s real legacy became apparent. Many of those who spoke about Buckley’s life credited him as a singular source of encouragement during their college years. David Brooks, Paul Gigot, Laura Ingraham, Al Regnery – just to name a few – all remarked upon Buckley’s influence in this way. He was an eminent man who took time to notice their work and to spur them on.

That point certainly resonated with me. In 1983, I used the release of Buckley’s then-latest book Overdrive: A Personal Documentary, as a pretext to wheedle an interview with him for a show that I hosted on the college radio station. Buckley agreed, and could not have been more courtly and generous during that half hour. And the impact he had was breathtaking. A show that nearly no one listened to before was suddenly transformed into a campus cause célèbre … because he was on it. When his next book came out, a year later, I wrote him again. A week or two later, I had folks that I had not spoken to in years calling me to say that they had read my letter, along with a very funny riposte from Buckley, on the pages of National Review.

While I did not become a Brooks, Gigot, Ingraham or Regnery in later life, I do know a little bit of what they speak. Like them, a few small waves of Buckley’s hand made large ripples for me as a young man.

And better still, I think that this is something that Buckley knew about himself and fully intended. Who better to spot diamonds in the rough than a man who was a best-selling author at age 25 and a magazine publisher at age 29?

To my mind, therefore, Buckley’s lasting significance is not that “he stood athwart history, shouting stop;” but rather that he lived his life according to an earlier declaration, made in 1960, that in “moral and political crises, it is the responsibility of the youth of America to affirm certain eternal truths .…” And believing that credo until he died last week, at a very youthful 82 years of age, Buckley encouraged young people as the cheerful talent scout and Mentor-in-Chief.