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June 24, 2011

Libya and the War Powers Act

In a recent post, my colleague George Dargo suggested that the Obama administration has no reason not to comply with the terms of the War Powers Act regarding our support of NATO forced in Libya. One of the members of the Obama administration who has argued that the War Powers Act does not apply is Harold Koh, the Legal Advisor to the State Department. He recently addressed an audience of international law and law of war experts at the annual International Law Conference, hosted by the U.S. Naval War College.

Mr. Koh sought to highlight ways in which the Obama administration’s approach to many of these issues fundamentally differed from his predecessor. Among the topics discussed was congressional authorization for U.S. military involvement and support for rebels in Libya who are seeking to topple the Gaddafi regime. The War Powers Act requires the President to seek congressional authorization for U.S. forces engaged in hostilities for more than 60 days. The Obama administration has been under pressure from some members of Congress to seek this authorization for continued military action. The administration’s position is that the War Powers Act does not apply because the nature of our military involvement does not rise to the level of “hostilities” as defined by the War Powers Act.

Mr. Koh repeated that assertion in his address. In addition, he made the following points:

- The military involvement in Libya is not the kind of military action that Congress contemplated when it passed the War Powers Act.
- If Congress wants to prevent the President from supporting the rebel forces in Libya, then Congress must take some affirmative action.
- If Congress decides to withdraw U.S. military support for the rebels, then it should do so with the understanding that it is giving Colonel Gaddafi the green light to resume the slaughter of his own citizens.

The War Powers Act is certainly fraught with problems, not the least of which it that it requires the President to remove U.S. forces from hostilities unless Congress takes some affirmative action authorizing their continued participation. Mr. Koh, however, repeated several times that the Obama administration was not challenging the constitutionality of the War Powers Act; it was simply arguing, primarily for policy reasons, that the Act does not apply to the situation in Libya.

Mr. Koh might have been seeking to convince the audience that, because the administration was not attacking the constitutionality of the War Powers Act, its view of presidential power is more limited than Mr. Obama’s predecessor. I am not sure that is the case.

First, claiming that the President does not have to seek Congressional authorization and that, if Congress wants to prevent the President from committing military support to NATO’s effort in Libya, then Congress must take some affirmative step turns the law on its head. One of the primary purposes of the War Powers Act was to prevent the President from committing military forces and then escalating that commitment over time without congressional approval. Recognizing that the President should have some leeway, Congress gave the President a 60 day window to commit forces into hostilities, and then make the case to Congress at the end of the 60 days why those forces should remain engaged in hostilities. Mr. Koh ignores this very fundamental purpose of the War Powers Act when he claims that the situation is Libya is not the kind of military engagement contemplated by the War Powers Act. The President’s actions seem to be exactly what Congress was concerned about when it passed the Act.

Even more interesting and, perhaps, more troubling is Mr. Koh’s policy assertion that if U.S. forces were to disengage from Libya, then Colonel Gaddafi would be able to resume killing his own citizens. This may well be true, but it is hardly a reason why the President can ignore the legal requirement to seek congressional authorization. In essence, Mr. Koh claims that the President can ignore the requirements of the statute if the President believes that compliance would frustrate important policy objectives. This view of presidential power is not so different than the arguments made by the Bush administration lawyers that the President did not have to comply with the requirements of the Foreign Intelligence Surveillance Act (FISA) because FISA interfered with his Article II powers as commander-in-chief.

While Mr. Koh’s argument may be subtler, it may also be more disingenuous. At least the Bush administration lawyers openly asserted that, in certain matters of national security, the President had the authority to ignore laws passed by Congress. The Obama administration seems to me making that same argument under the guise of statutory interpretation.

Victor Hansen

June 22, 2011

Turner v. Rogers: A Basis for Cautious Optimism Despite the Opinion’s Flaws

From an Access to Justice and Civil Right to Counsel perspective, the Supreme Court’s decision in Turner v. Rogers provides a basis for cautious optimism despite the opinion’s flaws. It is unsurprising that the Court would decline to find a categorical right to counsel in a fact pattern it viewed as an extension of settled law. Yet, the Court’s actual holding found that Mr. Turner’s due process rights were violated because he “received neither counsel nor the benefit of alternative procedures like those we have described.” Any notion of a civil right to counsel invariably will require some difficult line-drawing. No proponent of such a right claims that all indigent litigants in all civil proceedings are entitled to counsel at the state’s expense.

Many of us recognize that the right to counsel should be viewed as a component of an overarching access to justice strategy. I find it helpful to think of a three-pronged strategy. Prong 1 requires the courts to re-envision their procedures, and the roles of the judges, court-connected mediators to maximize the provision of meaningful access to justice. Prong 2 urges the support of a variety of forms of assistance short of full representation by counsel, paired with careful evaluation of case outcomes to help determine which forms of assistance are sufficient to provide the help needed, and which are not. Prong 3 supports the expansion of a civil right to counsel, where basic human needs are at stake and nothing short of full representation with provide the needed assistance.

Viewed this way, the right to counsel is inevitably tied not only to the rights at issue, but the procedures in place. The more the courts provide meaningful access, and assistance programs are proven to be effective, the smaller the pool of cases in need of counsel may be. The more that procedures deprive litigants of meaningful access and steamroll their claims, the more that appointment of counsel may be required. The Court’s approach is not inconsistent with the idea that the procedures matter in assessing the need for counsel.

So too does the complexity of the case. The Court found the child support cases here to be “sufficiently straightforward,” suggesting a different result as the claims get more complex. The Court adds to the calculus that the opposing party here was unrepresented by counsel. It is not necessarily antithetical to the call for an expanded civil right to counsel to consider the capabilities and circumstances of both parties, suggesting a different result in some settings where the opposing party is a well-funded represented party as opposed to an indigent, unrepresented one. The greater the imbalance of power between the parties, the greater the need for counsel will be.

None of this is to ignore the Court’s pronouncements that might instead set the march toward increased Access to Justice and an expanded Civil Right to Counsel backward. It is disappointing that the Court would characterize (in dicta) its jurisprudence as holding that the right to counsel under federal law exists “’only’ in cases involving incarceration.” Lassiter itself contemplated the possibility of counsel being constitutionally required in cases concerning the termination of parental rights.

The Court disappoints further by relying so heavily on the distinction between criminal and civil and its perceived role of the state. If our courts are to respond to the needs of the public who must turn to the courts – or are forced by others to appear in court – where basic human needs are at stake, we cannot continue to rely on mechanical distinctions that fail to comport with our values and our sense of fairness. If incarceration resulting from civil contempt might lead to a longer imprisonment than incarceration resulting from criminal contempt, it is small solace to those in peril of losing their liberty that their right to counsel turns entirely on the civil/criminal distinction. Moreover, most parents would prefer to serve thirty days in jail than lose custody of their children in a private custody dispute or have their families rendered homeless through eviction, yet the mechanical application of the criminal/civil distinction prioritizes the lesser harm for access to counsel.

Nor should we be comforted by the Court’s reliance on the distinction between cases brought by the State and those brought by private parties. The Court saves for another day the question of contempt proceedings for child support payments owed to the state, but the deprivation of liberty applies equally to defendants owing money to the state or someone else. Homeless families will find little solace in the realization that they were rendered homeless in proceedings in which the government was the landlord, as opposed to a private landlord, including one that might receive government subsidies. In the area of child custody, in the words of one state supreme court justice, a parent is deprived of the care, custody, companionship, and control of the children whether the State takes custody through termination or dependency proceedings or her former husband does through private litigation. The State plays too large a role in regulating the legal relationships and establishing the processes for enforcing our basic rights to hide behind such a distinction.

In the long run, the impact of the Turner decision will be less about its language and more about its application at the state and local level. If the disappointing portions of Turner lead states to roll back their existing provisions for counsel by declaring their procedures sufficient under Turner, or if what is meant by adequate procedures is little more than a rubber stamp, the decision will prove to be a devastating one indeed. If, instead, the decision prompts state courts, legislatures, access to justice commissions and bar associations to engage in a careful examination of the procedures where basic human needs are at stake, and provide counsel where the procedures are lacking, the law is complex or the litigants are on the wrong side of a power imbalance, the decision might prove to be the touchstone for reforms that further access to justice and lead to an expansion of a civil right to counsel.

Russell Engler

The War Powers Debate: Is the U.S. Engaged in “Hostilities” in Libya?

How many angels can dance on the head of a pin? When does the use of the armed forces of the United States trigger the War Powers Resolution of 1973? Why have we not intervened in "hostilities" within the meaning of that resolution with our military operations in Libya?

Learned counsel for the State Department and the White House appear to know the answers to such questions with reasons that would make medieval scholastics blush with embarrassment.

There are no caveats in the War Powers Resolution. The words are perfectly clear -- certainly clear enough for a former lecturer in constitutional law -- or even for a former dean of the Yale Law School -- to be able to comprehend and apply in the manner that Congress intended.

George Dargo

June 10, 2011

Should We Abolish the Estate Tax?

Here’s a simple yes or no question: Do you personally favor or oppose completely eliminating the estate tax—that is the tax on property left by people who die?

After you have answered that question consider this. Suppose you receive an unexpected call from a lawyer who tells you that she represents the estate of your great Aunt Leona, who recently died. She goes on to tell you that, in her will, Aunt Leona left you a bequest of $100,000 in cash. Do you think you would you be required to pay federal income taxes on that amount?

When I ask my new tax students this question most assume that federal income taxes would be owed. But most students' assumptions are wrong, because under federal income tax law property received by bequest or inheritance (and even that received by gift) is excluded from the definition of income. So you would get the whole $100,000, free and clear of federal income taxes.

What about federal “death” taxes? Federal law does include what is known as an “estate tax,” which is a tax on the aggregate value of everything a person owned at death. Would that tax reduce the amount you received from Aunt Leona’s estate? No, because that tax is paid by the decedent’s estate after her death. You would receive your bequest in full after the payment of any federal estate tax that was due. But chances are overwhelmingly good that Aunt Leona’s estate would owe no federal estate tax anyway. The tax has for many years applied to only a very small fraction of estates. And that fraction keeps getting smaller.

In keeping with this trend, late last year, Congress passed, and the President signed, a law under which no federal estate tax is owed unless the estate exceeds $5 million in total value, less any substantial gifts made during lifetime. Decedents can also leave an unlimited amount to their surviving spouses without any estate tax becoming due. Those spouses can then generally leave up to $10 million in assets to the next generation without their estates being liable for any federal estate tax.

To put this in perspective, in 2007 there were probably no more than 600,000 total households in the U.S. with a net worth in excess of $10 million. Based on today’s total U.S. population of about 308 million people, this means that far less than 1% of the U.S. population will be exposed to this tax. Although the 2010 law is more generous than most prior laws in exempting wealth from the estate tax, the federal estate tax has for many years affected only 2% or less of estates.

Consider again the question posed at the beginning of this post—do you favor or oppose the complete elimination of the estate tax? In annual polls commissioned by the Tax Foundation and conducted by Harris Interactive in 2006-2007, 66%-68% of people favored completely eliminating the estate tax altogether when that question was posed exactly as stated in the first sentence of this post. Note how this poll question, given by an organization that describes itself as “a nonpartisan tax research group,” was phrased as all-or-nothing: the “complete elimination” of the estate tax.

Consider some more data. In 2010, Michael Norton of Duke University and Dan Ariely of Harvard Business School devised a survey wherein they asked a “nationally representative online panel to estimate the current distribution of wealth in the United States and to ‘build a better America’ by constructing distributions with their ideal level of inequality.” The results: most of those surveyed vastly underestimated the actual percentage of wealth owned by the top 20% of Americans—those surveyed guessed it was 60% when in reality it’s 85%. The survey takers estimated that the poorest 40% of the population owned about 10% of the country’s total wealth. The real number is three-tenths of 1%. Perhaps even more striking, over 90% of those surveyed (including Republicans) preferred wealth distribution like that of Sweden (35% of wealth owned by the top 20%) over the U.S. when asked which type of wealth distribution they would deem most just.

A common argument in favor of estate tax elimination is that it amounts to a “double-tax.” In other words, income is taxed to the recipient, and then when the recipient dies that income, now in the form of wealth, is taxed again by the estate tax. But there are at least three counterarguments here.

First, the person who “earned” the property (and presumably paid tax on it) is now dead, and the heir (the new owner) paid no tax. The money you received from Aunt Leona’s estate is no longer Aunt Leona’s, it’s now yours, and this is why so many people automatically assume that it is subject to the income tax. In fact, under the tax law’s general definition of income as all “accessions to wealth” it would be taxed if it were not for a specific exclusion written into the Internal Revenue Code for gifts and bequests.

Second, studies have shown that some 56% of estates of over $10 million consist of unrealized capital gains. This means that even the dead person paid no income tax ever on over one-half of what he is passing on. To give this some context let’s assume, for example, that Aunt Leona had left you a painting she bought for $100 that was now worth $100,000. She may have paid tax on the $100 she earned to buy the painting but would never have paid tax on the $99,900 in appreciation.

Finally, other income tax rules provide that the recipient can sell almost any property inherited at the value it was when inherited and pay no tax on the proceeds. In other words, when you sell Aunt Leona’s painting for $100,000, you can pocket the sales price free of tax.

So rules governing taxation at death are complex, but generally pretty favorable to the taxpayer. This brings us back to the question that we started with. Do you favor the complete elimination of the estate tax? Or does the question need context and the answer call for nuance?

Kent Schenkel

June 8, 2011


In April, researchers discovered that the latest generation of iPhones had the capability to keep a minute-by-minute log of everywhere you go. iPhone users were understandably outraged. In a column about the issue, New York Times technology writer David Pogue suggested this was much ado about nothing. Though Apple has since provided a fix for those who prefer their phones not keep track of them in this way, and there appears to have been no nefarious intent behind this aspect of Apple’s technology, there may have been more here to concern individuals than Pogue allows.

Pogue writes: “Now, I’ve been in this job long enough to know that there’s a privacy-paranoia gene. Some people have it, some don’t.” And he does not, because, he says, he has “nothing to hide.”

But that is not really the point, is it?

Pogue maintains that, if he were to review all of our personal information, Big Brother would be “bored to tears.” But this view trivializes the potential negative effects of information about you being stored in various information silos maintained by credit-card companies, banks, phone companies, cable companies, and Facebook.

Pogue is right about one thing: these private entities are not Big Brother. They collect user and customer information for purely economic purposes, to know more about the people who buy their products and services and to sell more of those products and services.

The Big Brother of George Orwell’s novel, 1984, was the government. And, under current Fourth Amendment precedent, the government today has relatively easy access to much of the information that these private entities have stored, and from that information could assemble an interesting picture of you—a picture that might accurately represent where you live and work, where you go, and who you spend time with.

Which is not to say that any agents of the federal government are, at this moment, busy compiling dossiers on each of us. It is to say, though, that the government could do that without much trouble. And when that information about you is viewed out of context, it may be that Big Brother would find it all very interesting, regardless whether you believe you have something to hide.

Lawrence Friedman

June 1, 2011

Postmortem Publicity Rights: Coming Soon to a Court Near You?

Most of us are aware that famous persons can control and profit from the use of their identities during their lifetimes. Indeed, many celebrities are said to make much more from the selling of their endorsements and likenesses than from the activities that made them famous in the first place. Essential to securing this type of revenue stream is legal recognition of one’s “identity” as a property right. Granting individual identity the status of property means that the non-owner must have permission to use it. This permits individuals such as Michael Jordan, Oprah Winfrey and Madonna to package and sell publicity rights while imposing any restrictions on the use of their names, likenesses or images they choose.

But what happens when the celebrity dies? Do the heirs and beneficiaries of dead celebrities succeed to their publicity rights, allowing them to market and profit from them? That turns out to be a complicated question. And it’s a question that has heated up considerably in recent years.

Some states, such as California, recognize postmortem publicity rights, and some, such as New York, do not. One issue that presents considerable difficulty is which state’s law controls. Descendible publicity rights also raise sticky federal estate tax issues. Valuation is sure to be complicated and contested (a “herculean task” according to some experts), and discharging the tax obligation virtually requires that the property rights be exploited.

Perhaps most interesting are the policy questions. In a recent op-ed piece in the New York Times, Boston College law professor Ray Madoff argues that postmortem rights of publicity are “getting out of control.” She points out that the identities of important historical figures, such as Rosa Parks and Albert Einstein, are now being used to sell products, and raises concerns about whether literary endeavors involving these figures will infringe on property rights held by their heirs and the companies to whom those rights were sold.

Madoff also contends that while the preservation of proprietary rights in the identities of the dead makes money for heirs and companies, it is unlikely that a famous person would be able to take action during life to prevent a postmortem sale of those rights. She cites a longstanding principle of wills law that a person cannot effectively decree that their property be destroyed at their death. Further, those rights may have to be sold to raise money to pay the bloated estate tax bill accruing as a result of this property interest. Professor Madoff concludes that Congress should enact a preemptive federal statute that provides for a property right that is limited in time and that allows an individual to prevent the endurance of publicity rights after death.

Although Madoff’s proposed solution has precedent in federal trademark and copyright law, don’t look for federal legislation in this area anytime soon. In the meantime, with so much money to be made off of the famous dead, and with the laws in this area being so unsettled, litigation is sure to proliferate.

Kent Schenkel