Author: admin

Earlier this week, University of Texas law professor Sanford Levinson and I filed an amicus brief in Trump v. New York, an important case currently before the Supreme Court. The case involves a lawsuit by New York and other state and local governments to the Trump administration’s plan to exclude undocumented immigrants from the population counts that determine the allocation of seats in the House of Representatives. As we explain in the brief, the administration’s position goes against the text and original meaning of the Constitution—both that of the original Apportionment Clause in Article I, Section 2 and the modified version enacted in Section 2 of the Fourteenth Amendment.

The brief expands on the points made in much shorter form in my recent Los Angeles Times  op ed about the case. Here is an excerpt from the brief, summarizing key aspects of our argument:

The Constitution requires the federal government to apportion congressional seats “among the several States” based on the number of “Persons” in each State. U.S. Const. art. I, § 2; seeid. amend. XIV. In an unprecedented decision, the President has made it “the policy of the United States to exclude from the apportionment base aliens who are not in lawful im-migration status….”  Because that policy flouts the Constitution’s text and original public meaning, any effort to enforce that policy by excluding undocumented people from congressional apportionment is unconstitutional….

[E]xcluding undocumented immigrants is at odds with the Apportionment Clause’s command that the government base congressional apportionment on the number of “Persons” living in each State. U.S. Const. art. I, § 2. “Persons” is a broad term and was equally broad at the founding. Then, as now, it referred to all human beings.

While that plain language is broad enough on its face to include undocumented immigrants living in a State, surrounding words and text from elsewhere in the Constitution reinforce that the Framers under-stood “Persons” as a broad and general term. For instance, the Apportionment Clause excludes “Indians not taxed” from the apportionment count. Because Indians were considered noncitizens with allegiance to their tribes, the Framers would have had no reason to expressly exclude them from the apportionment base if “Persons” excluded foreigners or those with an allegiance to a sovereign other than the United States. The Constitution’s use of “Citizens” in other provisions also underscores that the Framers distinguished between “Persons” and “Citizens”—a subset of “Persons….”

Appellants’ contrary arguments cannot overcome these points. Appellants never address the ordinary meaning of “Persons” or the “Indians not taxed” provision, which would be superfluous if the Framers understood “Persons” to exclude foreigners. Instead, Appellants rely on the Apportionment Clause’s language before it underwent stylistic changes in the Committee of Style. Because that language based apportionment on the number of “inhabitants,” not “Persons,” Appellants contend that the Framers intended to exclude foreigners. Appellants distort the meaning of “inhabitants.” According to the founding-era sources Appellants cite, inhabitants are those people who intend to stay somewhere indefinitely. Undocumented immigrants, by and large, intend to stay in the United States indefinitely. Appellants’ conjecture that some of these immigrants may be removed at some point cannot alter those persons’ intention to remain here. That intention is what matters.

I should perhaps note that Sandy Levinson and I differ on a great many disputed constitutional issues—probably many more than we agree on. But we are in complete agreement on this one.

The brief goes into some detail on such issues as why undocumented immigrants are different from tourists and foreign diplomats (who historically have not been counted for apportionment), and why there is nothing unusual or intrinsically objectionable about including people in apportionment counts who did not have the right to vote. Indeed, for much of American history, a substantial majority of those counted for apportionment did not have that right.

Conservative columnist George Will devoted his Washington Post column today to our brief, and he endorses our position:

from Latest – Reason.com https://ift.tt/3pMCF66
via IFTTT

President-elect Joe Biden is promising a return to normalcy in U.S. foreign policy following the turbulent Trump years, calling for “America to restore dignified leadership at home and respected leadership on the world stage.”

Be careful what you wish for.

Biden backed the wars in Iraq and Syria and drone-bombing campaigns in countries like Pakistan, which were carried out under the “counterterrorism plus” strategy that he supported as vice president. In the 1990s, he co-sponsored a bill with John McCain to send troops into Yugoslavia. He advocated a troop surge in Afghanistan, though he later came to oppose it.

He embodies the establishment view that the U.S. must take the lead in policing the world because, as the Biden campaign’s foreign policy adviser Antony J. Blinken put it, “the world simply does not organize itself.” A Biden presidency might entail a return to the Obama-era policies of aerial warfare, a heavy reliance on drone strikes, and maybe even a willingness to enter multinational military conflicts without seeking congressional approval, such as the Libya intervention that toppled Moammar Gadhafi and later launched a bloody civil war.

There’s a saying in Washington: “Personnel is policy.” New administrations often draw from think tanks for both. The Quincy Institute for Responsible Statecraft, formed in December of 2019 with seed funding from the foundations of both progressive billionaire George Soros and libertarian billionaire Charles Koch, is attempting to promote a more restrained foreign policy from inside the Beltway.

During his 2016 candidacy, Trump broke with the foreign policy establishment. As president, he spoke of ending America’s “endless wars,” and he installed a senior Pentagon adviser in the dwindling months of his presidency to accelerate a U.S. withdrawal from Afghanistan—although thousands of troops will likely remain.

But Trump’s more establishment personnel fought to constrain his noninterventionist impulses. There were high-profile resignations, and one outgoing diplomat even admitted to lying about troop numbers in northern Syria after Trump had ordered a withdrawal.

Biden is reportedly eyeing former U.N. Ambassador Susan Rice for secretary of state. For defense secretary, Biden is rumored to be considering Michelle Flournoy, an Obama administration alumna who co-founded the influential Center for a New American Security, which emphasizes the need for more military preparedness against China and Russia and a smaller but ongoing U.S. presence in the Middle East.

“In terms of a Biden foreign policy, we know who Joe Biden is. He’s very much…ascribed to a kind of liberal interventionism, this notion that the U.S. needs to take a big role on the international stage for the good of the world,” says Annelle Sheline, a foreign policy analyst at the Quincy Institute.

The think tank, which seeks to cultivate a roster of foreign policy experts who can guide future administrations toward military restraint, is named for the former U.S. President John Quincy Adams, who once said that America “goes not abroad in search of monsters to destroy.”

“[Adams] says America can become the dictatress of the world, but in doing so, she will lose her own spirit and her own freedom,” says Trita Parsi, the Quincy Institute’s executive vice president. “I think we have seen that as we have gone abroad and [fought] more and more wars, the security state at home has also become stronger and stronger. And many of the liberties that the American people have traditionally seen as traditionally [uncompromisable] have been compromised.” 

The Quincy Institute’s policy fellows argue that the U.S. should abandon the strategy of global military domination and accept the reality of multipolarity, or competing regional influences.

“The longer that the United States continues to…behave in ways that were more possible when it truly was the world’s only superpower, [the more we] are just going to continue to sort of fritter away American resources,” says Sheline. 

One of the institute’s core tenets is that American foreign policy “should derive…directly from U.S. interests, rigorously defined.”

“The United States needs to focus on protecting the territory of the United States itself,” says Sheline. “One of the major bad assumptions driving U.S. foreign policy is the notion that the [military] presence in the Middle East makes the United States more safe. And this is fundamentally untrue.”

Biden told CBS’s Face the Nation in February that as president he would keep some troops in Afghanistan indefinitely.

But Sheline says America doesn’t need troops on the ground in the Middle East at all because a naval presence is sufficient to safeguard America’s main strategic interests, which are keeping trade and travel routes open and preventing the rise of a regional hegemon that could threaten U.S. national security. She says there’s no player in the region likely to assume that role.

China has learned from U.S. military misadventures and seems unlikely to get involved militarily in the Middle East, Sheline says, while Iran is too weak to become the dominant force, and Russia operates through a series of self-serving, temporary partnerships.

“The U.S. would do well to take a page out of Russia’s book and to say, ‘Saudi Arabia, you’re not acting in a way that is supporting our interests. Maybe we will go talk to Iran,'” says Sheline.

One aspect of Biden’s foreign policy stance that the Quincy Institute agrees with is the president-elect’s pledge to re-enter the Iran deal that Trump walked away from.

“The nuclear deal was actually very good because it prevented a war with Iran and prevented the Iranians from being able to have a pathway to a nuclear bomb,” says Parsi. 

Once Trump pulled out, Iran began enriching uranium at ten times the rate allowed under the deal, according to Parsi.

Sheline says although Saudi Arabia and Israel have a stake in the U.S. continuing to treat Iran as an enemy, it doesn’t pose a significant threat to America.

“Iran is quite weak,” says Sheline, who points out that the country’s GDP is smaller than that of New Jersey. “This ongoing sort of animosity between the U.S. and Iran just doesn’t really make a whole lot of sense.”

As U.S. troops leave the Middle East, Parsi suggests that America should encourage countries to form a regional security organization, but that it’s crucial for the U.S. not to take a leading role.

“This is the instinct [in Washington D.C.], that whatever we do, [the U.S. has] to be in the lead on it,” says Parsi. “[U.S. leadership] will take agency away from the regional countries. And ultimately it’s the regional countries that will benefit from the security orientation. Their incentives to move in this direction should be stronger than ours.” 

While the Quincy Institute is unlikely to be the go-to foreign policy think tank of a Biden administration with its deep ties to the foreign policy establishment, Parsi says more politicians and bureaucrats will eventually come around to their vision for a more restrained foreign policy, quite possibly out of necessity, and that when it happens the Quincy Institute will have personnel at the ready to make the pivot away from military interventionism a reality.

“What we are calling for inevitably will happen because we are bleeding ourselves to death with these endless wars,” says Parsi. “We want the shift to be a proactive shift that is done before we have weakened ourselves too much.”

Produced by Zach Weissmueller.

Photo credits: Everett Collection/Newscom; Abaca Press/Pool/Abaca/Sipa USA/Newscom; Everett Collection/Newscom; Abaca Press/SalamPix/Abaca/Sipa USA/Newscom; Nancy Siesel/ZUMA Press/Newscom; State Department/Sipa USA/Newscom; Abaca Press/SalamPix/Abaca/Sipa USA/Newscom; Dani Salvà / VWPics/Newscom; Pete Souza/ZUMA Press/Newscom

from Latest – Reason.com https://ift.tt/330TXCQ
via IFTTT

New from me at the Washington Post on the law and politics of Donald Trump’s bid to persuade Republican state legislators to ignore the results of the November election and directly designate a slate of presidential electors pledged to vote for Trump’s reelection. It is a mad scheme that is doomed to failure and Republican leaders should denounce it. This is how you build support for a constitutional amendment to eliminate the Electoral College.

A taste:

At any rate, unlike the 2000 presidential election, the 2020 presidential election does not come down to a few dozen votes in a single state. Trump needs to flip not just one state but multiple states. Even if he were to persuade enough Republican-dominated state legislatures to go along with a plan to directly appoint presidential electors, he would still need to persuade governors, several of whom are Democrats, to accept the necessary legislation and certify new slates of presidential electors. Ultimately, those electoral votes will be counted in Congress, and the Democratic majority in the House of Representatives would play an important role in resolving any disputes over the validity of any state’s electoral votes.

Read the whole thing here.

from Latest – Reason.com https://ift.tt/35Lp7Qi
via IFTTT

In September of 2013, prison guards escorted a naked Trent Taylor, then an inmate at the John T. Montford Psychiatric Facility Unit in Lubbock, Texas, to his cell. That cell, he contends, was covered in “massive” amounts of human feces—on the ceiling, on the floor, on the walls, and on the windows. He didn’t eat for four days because he was anxious he’d risk contamination. Nor did he drink anything after observing that feces were “packed inside the water faucet.”

He next moved to a seclusion cell, one that came without a toilet, bed, or water fountain. Its only contents: sewage, built up from a clogged drain on the floor. When Taylor asked to use the restroom, the guards denied his request and told him to urinate in the drain. He would then have to sleep in his own urine, since the floor was already steeped in waste, and since he was without a bed. After 24 hours, he urinated on himself involuntarily, and slept, naked, in sewage.

Taylor sued those guards for violating his Eighth Amendment rights. In December 2019, the U.S. Court of Appeals for the 5th Circuit conceded his rights were violated—but awarded the defendants qualified immunity, the legal doctrine that makes it especially difficult to sue public officials for misconduct.

Earlier this month, the Supreme Court ruled 7–1 that was the wrong decision. It’s a welcome change from the high court, which over and over again has declined to consider a spate of cases surrounding qualified immunity and its deleterious effects.

Such shyness is rich when considering that it was the Supreme Court that created qualified immunity. It is the American public, however, that has had to reckon with the consequences. The doctrine shields public servants from federal civil suits unless their misbehavior was “clearly established” in previous case law.

That standard sounds benign. Quite the opposite, as it requires that any alleged wrongdoing be outlined with near-exacting precision in a court precedent within the same federal circuit or via the Supreme Court. A salient example: The 9th Circuit Court of Appeals gave qualified immunity to two cops who stole $225,000 while executing a search warrant. Though the judges agreed the officers “ought to have recognized that the alleged theft was morally wrong,” the two cops couldn’t have known for certain without a specific case on the books telling them so. Their victims were not afforded the right to sue.

The 5th Circuit decision—now overturned by the Supreme Court—was similarly confounding. Circuit Judge Jerry E. Smith acknowledged that the guards infringed on Taylor’s right to be free of cruel and unusual punishment. But because the exact amount of time he spent in those cells—six days—had not yet been spelled out somewhere in a previous ruling, the claim could not stand.

“The Fifth Circuit erred in granting the officers qualified immunity on this basis,” wrote the Supreme Court in an unsigned opinion. The newly-minted Associate Justice Amy Coney Barrett did not participate, and the lone dissenter was Associate Justice Clarence Thomas. The panel added that “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”

He will now have the right to sue those guards in federal court. “The respondents here claim they need breathing room to do their job well,” Kelsi Brown Corkran, the lead attorney on the case, tells Reason. “Apparently doing their job well was putting a suicidal individual in a feces-covered cell, where he had no access to water, where he had to sleep in sewage. What possible policy rationale could you come up with that would justify not holding prison officials liable under those circumstances?”

The Supreme Court concurred, invoking Hope v. Pelzer (2002), a precedent that established that qualified immunity can be overcome when the unconstitutionality of the misconduct at hand is “obvious.”

A review of past cases would show that a long line of constitutional violations have seemed similarly obvious, though not all plaintiffs have been so fortunate as to overcome qualified immunity. There was the Georgia sheriff’s deputy who shot a 10-year-old while aiming at the family’s nonthreatening dog; he received qualified immunity. There was the Los Angeles Police Department officer who shot a 15-year-old boy who was making his way to school; he received qualified immunity. There was the cop who kneed a subdued suspect in the eye “20 to 30 times”; he received qualified immunity. There were the two cops who unleashed a police dog on a surrendered man, and the cops who beat and arrested a man for standing outside his own house. They all received qualified immunity.

The majority of the American public opposes the doctrine. There have been several legislative attempts to fix it, although they’ve been dead on arrival. Rep. Justin Amash (L–Mich.) spearheaded the first effort in the U.S. House, co-sponsoring a bill with Rep. Ayanna Pressley (D–Mass.) to end qualified immunity. It eventually achieved tripartisan support. And while Republicans have been more resistant to change on this issue, Sen. Mike Braun (R–Ind.) unveiled a bill that would have significantly rolled back the doctrine. Neither piece of legislation ever received a vote.

President Donald Trump expressed during his tenure that he would block any attempts at reforming qualified immunity. Such an aversion seems to be at odds with the GOP’s promise to be the party of “limited government,” as qualified immunity is nothing more than a free pass for rampant government abuse at the expense of the little guy. It makes more sense, however, when noting the power of the law-enforcement lobby, which Trump courted. President-elect Joe Biden has said he is not ready to scrap the doctrine but would instead like to “rein [it] in.”

Though Taylor can now seek recourse, the ruling this month does not overturn the doctrine. Even still, it’s the first SCOTUS decision striking down a cop’s qualified immunity defense in 16 years—and hopefully not the last.

from Latest – Reason.com https://ift.tt/2IUEu0a
via IFTTT