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Thursday, January 28, 2010

Partisanship and Separation of Powers

Once again, where one stands on the political spectrum seems to dictate where one stands on the question of whether President Obama was right to call out the Supreme Court for last week's decision in Citizens United. The divide is less partisan over whether Justice Alito acted properly in mouthing/mumbling "No, that's not right" in response. So, from the right, e.g., Calvin Massey, Randy Barnett, Ann Althouse; from the right, e.g., Eric Muller, Jack Balkin (who adds a historical perspective), and Norman Williams' comments here. Refreshingly, Jonathan Chait of TNR can't understand the squeamishness from the left about a Republican disagreeing with the substance of a Democratic President's speech.

As usual, this is all silly. Of course the President (and any member of Congress) are entirely within the bounds of their structural powers and the doctrine of separation of powers to criticize the Court for its decisions. Especially when there is not much Congress can do to undo the decision. The other branches have largely ceded to the Court responsibility for constitutional interpretation; they cannot also cede the power to speak out about the Court's work. In fact, Obama's precursor about "all due deference to separation of powers" was unnecessary. Separation of powers assumes a conversation among the branches--they have to talk to one another, sometimes quite sharply. Plus, as Norman notes, no one has threatened to act against the Court--no talk of impeachment or court-packing, or jurisdiction-stripping; just "you guys got this wrong and that's a problem." And, of course, Republicans have been running against the federal courts for years (although at this point they are running against a straw man because the Court that Republicans have demonized no longer exists); so why should Democrats not call out what the Court really is doing?*

Is there an argument that this did not belong in the State of the Union Address? I don't buy it. The state of the union is affected by what the courts do. If judicial decisions are, in the President's view, making the state of the union worse, he is obligated to make that point. And as Jack Balkin's post shows, Obama certainly is not the first President to do this in that very forum. Now certainly the decision in Citizens United is not comparable in its broad policy effect to what the Nine Old Men were doing to the New Deal when FDR called them out in 1937, so the effect on the state of the union is not as great. This makes Obama's shot somewhat gratuitous, perhaps, compared to, say, the Supreme Court invalidating the individual mandate should health reform pass. But that is a matter of policy preference.

  • I make this point as the somewhat-rare Democrat and Obama supporter who believes Citizens United was correctly decided.

Posted by Howard Wasserman on January 28, 2010 at 01:57 PM in Howard Wasserman, Law and Politics | Permalink

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Comments

"Of course the President (and any member of Congress) are entirely within the bounds of their structural powers and the doctrine of separation of powers to criticize the Court for its decisions." --- Is this really the dispute? I don't think so. Rather, the dispute concerns whether the President *should* have criticized the Court at a State of the Union address, and if so, whether he went about it in the right way.

Posted by: anon | Jan 29, 2010 11:11:26 AM

Howard:

Of course, both the President and Associate Justice Alito have the right to express their views. Isn't that what the 1st Amendment is all about?

Nevertheless, here's something that both the Dems and Republicans can probably chuckle about together and possibly agree upon. Osama bin Laden is blaming the U.S. for Climate Change. Of course, the SOB leaves out India and China, as well as his family's construction company (The bin Laden Group). The latter is one of the largest builders of refineries in the world. Just, accept America, you can't do any good!

The ensuing article was published today in the Washington Post. The link is http://www.washingtonpost.com/wp-dyn/content/article/2010/01/29/AR2010012901463.html
Bin Laden blasts US for Climate Change

By LEE KEATH and SALAH NASRAWI
The Associated Press
Saturday, January 30, 2010; 2:24 AM

CAIRO -- Osama bin Laden sought to draw a wider public into his fight against the United States in a new message Friday, dropping his usual talk of religion and holy war and focusing instead on an unexpected topic: global warming.

The al-Qaida leader blamed the United States and other industrialized nations for climate change and said the only way to prevent disaster was to break the American economy, calling on the world to boycott U.S. goods and stop using the dollar.

"The effects of global warming have touched every continent. Drought and deserts are spreading, while from the other floods and hurricanes unseen before the previous decades have now become frequent," bin Laden said in the audiotape, aired on the Arab TV network Al-Jazeera.

The terror leader noted Washington's rejection of the Kyoto Protocol aimed at reducing greenhouse gases and painted the United States as in the thrall of major corporations that he said "are the true criminals against the global climate" and are to blame for the global economic crisis, driving "tens of millions into poverty and unemployment."

Bin Laden and other al-Qaida leaders have mentioned global warming and struck an anti-globalization tone in previous tapes and videos. But the latest was the first message by bin Laden solely dedicated to the topic. It was also nearly entirely empty of the Islamic militant rhetoric that usually fills his declarations.

The change in rhetoric aims to give al-Qaida's message an appeal beyond hardcore Islamic militants, said Evan Kohlmann, of globalterroralert.com, a private, U.S.-based terrorism analysis group.
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"It's a bridge issue," Kohlmann said. "They are looking to appeal to people who don't necessarily love al-Qaida but who are angry at the U.S. and the West, to galvanize them against the West" and make them more receptive to "alternative solutions like adopting violence for the cause."

"If you're looking to draw people who are disenchanted or disillusioned, what better issue to use than global warming," he said. While the focus on climate may be new, the tactic itself is not, he said: Al-Qaida used issues like the abuse of prisoners by U.S. soldiers at Abu Ghraib in Iraq and the U.S. prison at Guantanamo Bay to reach out to Muslims who might not be drawn to al-Qaida's ideology but are angry over the injustices.

Bin Laden "looks to see the issues that are the most cogent and more likely to get popular support," Kohlmann said.

The al-Qaida leader's call for an economic boycott helps in the appeal - providing a nonviolent way to participate in opposing the United States.

"People of the world, it's not right for the burden to be left on the mujahedeen (holy warriors) in an issue that causes harm to everyone," he said. "Boycott them to save yourselves and your possessions and your children from climate change and to live proud and free."

Al-Jazeera aired excerpts of the message and posted a transcript on its Web site. The tape's authenticity could not be independently confirmed, but the voice resembled that of bin Laden on messages known to be from him. The new message comes after a bin Laden tape released last week in which he endorsed a failed attempt to blow up an American airliner on Christmas Day.

Of course, the Supreme Court has no jurisdiction here however maybe it can suspend bin Laden's privileges to practice before it.

Posted by: Itzchak Kornfeld | Jan 30, 2010 10:41:43 AM

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