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December 20, 2010

"Zombie" Constitutionalism

Talk about bad and shopworn ideas ("zombies" to use Paul Krugman's nice formulation): the proposed amendment that would enable states to repeal any federal statute if approved by two-thirds of the state legislatures is a notion that came and went, in various forms, in the 18th and 19th centuries. First it was called Nullification, and then it morphed into the Secessionist craze whose 150th anniversary we are about to commemorate. The Civil War was supposed to have relegated those ideas to the proverbial dustbin of history.

This nutty notion -- if adopted -- would transform the entire structure and character of our constitutional system. The difference between the Constitution (which supporters of this amendment say they revere) and its predecessor -- the Articles of Confederation -- is that the federal government under the Constitution framed at Philadelphia in 1787 is an independent entity whose laws act directly upon the people and is not dependent upon the approval or disapproval of the states. To provide states with a mechanism for disapproving of federal laws would not only undermine the institution of Judicial Review, but it would fundamentally alter the architecture of American government as we have come to know it in the past two hundred years.

This is a very bad idea whose time came and went centuries ago. It should be so regarded.

George Dargo

December 15, 2010

Targeted Killings and Judicial Review, continued

My colleagues Victor Hansen and George Dargo last week debated the dismissal of a federal lawsuit brought by Nasser Al-Aulaqi in respect to the targeting of his son—an American citizen—by the President of the United States for supporting Al Qaeda in the Arabian Peninsula. Hansen and Dargo debated the merits of a secret court to review targeting determinations. Professor Hansen argued that the law of armed conflict and self-defense place limits on the President’s discretion to target individuals for assassination, while Professor Dargo maintained that, absent Congressional authorization, the President lacks the authority under Article II of the Constitution to target American citizens.

This is an important issue and an important debate; the weight of the United States government behind targeted assassination is not a policy to be taken lightly.

Traditionally, the President has been regarded as having the discretion to make strategic and tactical battlefield determinations, a consequence of his commander-in-chief power under Article II—a discretionary power triggered by a Congressional authorization to use force, or an exigent circumstance that warrants military action, such as an attack on the United States. Congress authorizes the conflict, but the President controls the military; accordingly, Congress could not direct the President to, for example, position troops in a particular location, or deploy forces in a particular way in the midst of an authorized armed conflict.

Closer to home, Congress does not need to declare a war on crime to authorize state or federal agents to take down a gunman who has opened fire in a crowded public square—those state and federal agents have the authority to respond to the exigency posed by that gunman. This is not to say, of course, that state and federal agents legally could plan to assassinate that gunman in advance, or that Congress could authorize them to do so, for it is far from clear that a “war on crime” is an armed conflict in the same way that the war against terror is an armed conflict.

Further, there is some question here whether Al-Aulaqi poses the same kind of threat as our hypothetical gunman. But, as Professor Hansen has argued, the judiciary does not have the competence to second-guess that targeting decision—that is, to make the determination, based upon an evaluation of confidential intelligence information, that Al-Aulaqi is doing more than simply inciting opposition to the United States.

At the end of the day, the most important question raised by the Al-Aulaqi case is whether targeted assassination, as a state policy, is morally justifiable. But I am not sure that is a question that can be answered by a court interpreting the due process clause. At the same time, we should all hope it is a question to which the President and his advisors devote no small amount of consideration.

Lawrence Friedman

Targeted Killings and Judicial Review

President Obama’s program of using drone attacks, often referred to as targeted killings or targeted assassinations, was recently challenged in federal court by the father of one of the alleged targets. Nasser Al-Aulaqi brought the suit on behalf of his son, Anwar Al-Aulaqi. Anwar Al-Aulaqi is a dual citizen of the United States and Yemen and he is believed to be an active member of Al Qaeda in the Arabian Peninsula. The lawsuit claims that the President’s unilateral decision to target Al-Aulaqi without some form of judicial process is a violation of his 4th and 5th Amendment rights and is a violation of the Alien Tort Claims Act. Last week a federal court dismissed the suit based upon lack of standing and the political question doctrine.

In its decision, the court did note that the case raised challenging questions, including whether the “Executive can order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.” A New York Times Op-Ed following the dismissal of the case called for the creation of a secret court similar to the FISA court now used to authorize wiretaps of foreign agents within the United States, to conduct a judicial review of the terrorist suspect targets chosen by the President before any targeting could take place. In the paragraphs below Professors Dargo and Hansen debate the creation of such a secret court.

Professor Hansen: I agree that some scrutiny is in order, but I disagree that the scrutiny should come from the courts. Such a review is outside of a court's competence and federal judges, even holding hearings in secret, are not competent to make -- or review -- targeting determinations. In dismissing the Al-Aulaqi case the court correctly noted, “To be sure, this Court recognizes the somewhat unsettling nature of its conclusion -- that there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable. But this case squarely presents such a circumstance.” Even having some kind of secret process reviewed by a FISA type court would not address very real concerns that the Executive may need to act quickly because of the nature of the threat. It would be unprecedented and unwise for courts to get involved in this level of targeting decisions. Should courts review all battle plans before execution to make sure that they are in compliance with the laws of war?

The primary limits on the President's authority in this context come first from the inherent right of self defense and from the laws of armed conflict. Certainly there is an open question as to the contexts in which the law of armed conflict should apply. For example, should its limits be tied to the territory where most of the actual fighting is taking place? Or should the law of armed conflict and the right to target an individual like Al-Aulaqi follow the individual terrorist and allow him to be targeted wherever he or goes? While there are no clear answers to these questions, the fact that these questions are being asked suggests that the law of armed conflict and the inherent right to self defense constrain the President's authority.

Congress and not the courts should be checking Presidential authority in this instance. Congress has the constitutional authority, the competence, and the power to place limits on such a program if Congress believes that the President is exceeding his authority.

Professor Dargo: I do agree that Congress should attempt to regulate this in some way. But your major approach -- to look at it through the prism of "the laws of war and armed conflict" -- I think is mistaken. As I see it, it should be viewed from the context of basic constitutional principles which govern the government and protect individual American citizens. Ours is a government of limited and specified powers, and even though those of the President are not as enumerated as those in Article I, this does not mean that the President's powers are unlimited. The basic principle is that the federal government -- any of its branches -- can only act upon authority which has been granted to it and not by some unlimited and vague assertion of necessity. Under Article I, Section 8 (necessary and proper clause), the Congress can give powers to the Executive in order to enable it to carry out its implied powers -- for example, to protect the country. That would at least give it some color of respectability under such landmark cases as Youngstown Sheet and Tube (Justice Jackson's concurring opinion). Then, of course, there is the rights aspect -- rights which are enumerated as a further check on the exercise of unlimited power. And the right in question, which is also part of the equation, of course would be Due Process. As the Times editorial notes, and the judge seems to say or imply, it makes no sense to require process to authorize electronic surveillance, but not to take away life. I just find that your approach -- viewing this through the lens of the laws of war -- does not adequately address the full dimensions of this issue.

Professor Hansen: No question that there are many dimensions to this issue. So let’s look at this issue in a more traditional battlefield context. Assume that during World War II, a U.S. solider decided to abandon his unit and join the German Army. Certainly, under the law of armed conflict and the inherent right to self defense, that solider could now be targeted and killed by U.S. forces without any resort to judicial review. If the law of armed conflict and the inherent right to self defense similarly applies in the Al-Aulaqi context, then the outcome should be the same. If, on the other hand the law of armed conflict and the inherent right to self defense do not apply (and that is an issue for debate), then the President has exceeded his authority. The point here is that the Executive’s authority is not unbounded. The check comes by way of the law of armed conflict and the inherent right to self defense. Congress, as the other political branch with the constitutional authority to oversee the Executive’s actions, not the courts, should act if it believes that the President has exceeded his authority.

Professor Dargo: We seem to be in agreement that Congress should establish some sort of mechanism for the purpose of authorizing executive action in this circumstance. The AUMF (Authorization for the Use of Military Force) adopted soon after the September 11th attacks are not sufficient for this purpose. To hold that the AUMF is sufficient would be to give a "blank check" to the President to conduct the so-called War on Terror against any persons, anywhere, anytime for any purposes he deems a threat to the security of the United States. I believe that Congress had no such intention back in 2001. Accordingly, in the absence of any other relevant authorizing power, then the President's action in ordering targeted assassination would be acting on the basis of his own Article II powers which, under Justice Jackson's formulation, would be a very weak reed indeed. For these reasons, I believe that targeted assassinations of American citizens in places like Yemen are beyond the powers of the President.

Professor Hansen: While I agree that the AUMF is not a “blank check” it is certainly not a “bounced check” either. If we say that in passing the AUMF Congress did not anticipate that the President would use the authorization to capture and kill those who pose a threat to the United States, I’m left to wonder what the AUMF authorized.

December 13, 2010

Is the Health Care Law Beyond the Commerce Power?

In his decision this week in Virginia v. Sebelius finding the Patient Protection and Affordable Care Act unconstitutional, United States District Judge Henry E. Hudson explains that Congress cannot, under Article I’s Commerce Clause, compel individuals to purchase health care insurance by assessing them a penalty if they choose not to do so. He distinguishes this case from Wickard v. Filburn. In that case, the Supreme Court concluded that Congress can regulate the activity of the individual wheat farmer, because such activity in the aggregate has a substantial effect on interstate commerce even if the wheat transactions of each individual farmer do not.

But wouldn’t there be a significant effect on interstate commerce—as Congress believes—if individuals declined to purchase health care insurance (assuming they are not otherwise covered)? Indeed, isn’t that the whole point of the new health care law—to avoid that effect by creating incentives, through the assessment of a tax penalty, for individuals to purchase coverage?

The answer to the second question is yes—but the answer to the first, according to Judge Hudson, depends on the activity in question. In his view, Congress’s commerce power only reaches activity in a market, not the decision not to participate in a market. Yet in Wickard, the Court allowed Congress to reach wheat farmers who chose not to sell the wheat they produced—just as in this case, where Congress is trying to reach individuals who have chosen not to purchase their own health insurance.

Not so fast, Judge Hudson tells us. In Wickard, the individual farmers could have avoided regulation entirely by choosing not to engage in the production of wheat, while in this case, he argues, individuals cannot avoid the regulation: they must either purchase coverage or pay the penalty.

This reasoning has a superficial appeal, but it ignores the fact that, unlike the farmer who chooses not to grow wheat, no individual living in the United States can help being a part of the health care market. If you choose (for whatever reason) not to have health insurance coverage, that does not mean that you are not participating in the health care market—and it does not mean the health care services you will inevitably receive at some point in your life have no economic value. Rather, you have simply chosen a different way to structure your particular health care transaction—namely, by relying upon the rest of us to pay for the consequences of your decision not to have coverage.

In the end, you may have chosen not to pay for health insurance coverage, but you have not chosen to avoid an economic transaction. Surely Congress has the authority under the Commerce Clause to regulate the aggregate effect on interstate commerce of all those individuals who have chosen to engage in that particular economic transaction.

Lawrence Friedman