Category Archives: Politics

Presidential power or “police state”: Trump relies on discredited 1950 case to defend Executive Order

Kyŏngsŏng At the heart of the legal battle over the President’s Executive Order banning refugees from Syria and individuals from seven predominantly muslim nations is a claim that his authority to do so should not be subject to judicial review. If his order on its face states that he has found their exclusion to be in the interests of the United States that should end the matter, at least according to DOJ lawyers in the recent State of Washington litigation.

mythically There is a lot that is wrong in this position including its failure to recognize that the powers of a President NOT subject to judicial review are very limited and have almost never included a situation where he orders an Agency like the Department of Homeland Security to exclude aliens. The Administrative Procedures Act gives the courts wide latitude to review Agency actions, a principle rooted in the fact that Agencies are not creations of plenary executive power.

http://cowmanauction.com/annual-consignment-auction/ Nonetheless, to bolster a very weak case, the Government relied heavily in their argument in Washington on Knauff v. Shaughnessy, a 1950 Supreme Court case, where the Court upheld the exclusion of a German woman who had married an American soldier on security grounds. The case is considered long discredited (see Louis Henkin, The President and International Law, 80 AJIL 930, 937 n.20) but is trotted out by the DOJ whenever it tries to defend some unilateral exercise of power by the President. The Government doubles down on Knauff in their motion for an emergency stay to the Ninth Circuit.

Paradoxically the Government relies on Knauff while also relying on Kleindienst v. Mandel although the latter case can be said to have rendered the former no longer good law. The Government likes the Mandel case because it states that the standard of review of a Presidential order in immigration cases is very limited – to simply what the DOJ lawyer in the Washington hearing called “facial” validity. But that is at least some kind of review and Knauff stood for the proposition that the President’s power was in this area was, in essence, not subject to review at all!

It is worthwhile then to consider the following excerpt from the dissent in that case (Knauff v. Shaughnessy) by Justice Robert Jackson (whom the DOJ also quotes in another case in their brief):

Security is like liberty, in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected. Cf. In re Oliver, 333 U. S. 257, 333 U. S. 268.

I am sure the officials here have acted from a sense of duty, with full belief in their lawful power, and no doubt upon information which, if it stood the test of trial, would justify the order of exclusion. But not even they know whether it would stand this test. And anyway, as I have said before, personal confidence in the officials involved does not excuse a judge for sanctioning a procedure that is dangerously wrong in principle. Dissent in Bowles v. United States, 319 U. S. 33, 319 U. S. 37.

Congress will have to use more explicit language than any yet cited before I will agree that it has authorized an administrative officer to break up the family of an American citizen or force him to keep his wife by becoming an exile. Likewise, it will have to be much more explicit before I can agree that it authorized a finding of serious misconduct against the wife of an American citizen without notice of charges, evidence of guilt and a chance to meet it.

I should direct the Attorney General either to produce his evidence justifying exclusion or to admit Mrs. Knauff to the country.

Now this is where it gets interesting: J. Jackson two years after this case wrote his most noted opinion in the Steel Seizure case where he outlined what has become the modern test of the legitimacy of presidential power. He was clearly influenced by what he learned in the earlier Knauff case and pointed out that where a President acts alone without congressional support his power it at its lowest ebb. So if the Government wants to take a Knauff based approach to the current Executive Order it is in fact flying in the face of the Steel Seizure approach. Yet the Government also argues that it has the support of a statute – Immigration and Nationality Act! Well, if that is the case then it cannot rely on Knauff! And then it is back at least in the land of Mandel where it must allow courts some minimal right of review and thus it is required to provide some basis for its claim that the order is facially valid (i.e., that it meets the requirement of the INA that the Order is rooted in a valid concern for US interests.)

Of course, I think the APA and other approaches based on due process should be applied and I think the 9th circuit may agree given the blanket nature of the Order, the utter failure to provide any support for the ban and the highly suspicious statements about religion made by the President.

The common link between Steve Bannon and the alt-right – the “socialism of fools”

There is growing concern about the attention being given to far right organizations in the wake of the election of Donald Trump. But there is a good deal of confusion about how such groups are linked to the incoming Trump Administration.

One line of criticism bases itself on the fact that Steve Bannon, a top advisor to Trump who is set to join the new President in the West Wing upon inauguration, made the link clear when he said that his website, Breitbart.com, provided a platform for the “alt-right” (a euphemism for anti-semitic, fascist and white supremacist organizations and individuals). Bannon is now distancing himself from that remark and the focus on possible actual organizational links between Bannon and the fascist right is not likely to bear fruit.

Far more important are the ideological connections that are helping to foster a hostile environment since the election.

One key common ideological viewpoint shared by Bannon and the fascist right is their shared interest in and support for the ideas of Julius Evola, a leading intellectual of Italian fascism and an agent of Nazi Germany prior to and during World War II. Evola is not a widely familiar figure now but he deserves much closer attention. During the recent controversial conference sponsored by the National Policy Institute in Washington D.C. – complete with explicit Nazi salutes – the leader of the organization, Richard Spencer, referred to the attendees as “Children of the Sun.” This was an explicit reference to the youthful followers of Evola in fascist Italy. For Evola the sun evokes a notion of a pure culture that is superior to darker lunar cultures.

A more powerful idea of Evola’s intrigues much of the fascist right including Steve Bannon: that is Evola’s “traditionalism.” In comments that Bannon delivered via Skype to a conference held in the Vatican in 2014 he said the following:

“When Vladimir Putin, when you really look at some of the underpinnings of some of his beliefs today, a lot of those come from what I call Eurasianism; he’s got an adviser who harkens back to Julius Evola and different writers of the early 20th century who are really the supporters of what’s called the traditionalist movement, which really eventually metastasized into Italian fascism. A lot of people that are traditionalists are attracted to that.

“One of the reasons is that they believe that at least Putin is standing up for traditional institutions, and he’s trying to do it in a form of nationalism — and I think that people, particularly in certain countries, want to see the sovereignty for their country, they want to see nationalism for their country. They don’t believe in this kind of pan-European Union or they don’t believe in the centralized government in the United States. They’d rather see more of a states-based entity that the founders originally set up where freedoms were controlled at the local level.

“I’m not justifying Vladimir Putin and the kleptocracy that he represents, because he eventually is the state capitalist of kleptocracy. However, we the Judeo-Christian West really have to look at what he’s talking about as far as traditionalism goes — particularly the sense of where it supports the underpinnings of nationalism — and I happen to think that the individual sovereignty of a country is a good thing and a strong thing. I think strong countries and strong nationalist movements in countries make strong neighbors, and that is really the building blocks that built Western Europe and the United States, and I think it’s what can see us forward.”

In a single step Bannon artfully evokes via the concept of “traditionalism” both his support and interest in Evola as well as Vladimir Putin and also explains how he wants to “translate” that concept into the American context via nationalism. Thus, when Bannon now tries to distance himself from the explicitly racist and anti-semitic “alt-right” he does it via the concept of traditionalism-cum-nationalism. And there are no shortage of interviews or videos with Bannon where he goes on ad nauseam about his support for nationalism as against the alleged materialist globalism of Washington and New York elites.

That, in turn, leads to the only slightly more palatable rhetoric of Bannon’s new fuhrer – sorry – leader, Donald Trump. When Trump attacks the New York Times, Saturday Night Live or the cast of Hamilton he is invoking the anti-elitist, anti-cosmopolitan and, most importantly, anti-pluralist themes developed by Bannon since he himself abandoned his own “elitist” career as a Wall Street banker. As his remarks to the Vatican conference demonstrate, these themes are deeply rooted in the fascistic concepts of nationalism and traditionalism – an attempt to return the country to some mythical pre-globalist traditional America – an America that has never existed and cannot ever exist.

Unfortunately that approach struck a chord in the recent election with many unemployed and underemployed Americans who think that Trump can conjure up an economic miracle. Bannon himself has said the Trump era is as exciting as the 1930s – a period of massive industrial expansion in countries like the U.S., in part, but also, of course, in fascist Germany and stalinist Russia.

It is no wonder that the German socialist leader August Bebel referred to anti-semitism as the “socialism of fools.”

Don’t blame Bernie – of course the banks can be broken up

In a recent interview, a very confused New York Daily News reporter continually mixed up the Treasury Department and the Federal Reserve in the face of a very straightforward statement of presidential candidate Bernie Sanders that Congress can give the President power to impose changes on the structure of the financial system “under Dodd Frank.”

Well, the Treasury is an agency of the executive branch while the Federal Reserve is an independent hybrid public-private entity. The former is an extension of the power of the President while the latter has autonomy that limits, understandably, Presidential influence. Apparently in the minds of financial journalists the two entities can be conflated without consequence.

Sure enough Secretary Clinton jumped on the bandwagon and slyly and indirectly suggested on Morning Joe that Bernie Sanders does not “seem” to know enough about how the economy works to be qualified as president.

Now that we have cleared up the fact that it was the Daily News reporter who was confused not Sanders, let’s focus on the agency that a President does control, the Treasury. When Sanders said he wanted to use Dodd-Frank to break up the big banks one could consider that from two angles. First, does the current language of that law enable the federal government to break up the banks; and second, could Dodd-Frank be amended to give the federal government the power it needs to break up the banks. Since Sanders talked about going to Congress to empower the government to break up the banks it seems reasonable to conclude he means the latter, second method.* But he is taking the view that any such amendment would be consistent with Dodd-Frank, a necessary extension consistent with the spirit of what Congress intended to do.

I think he is right about that – Dodd Frank cannot be viewed in isolation or as a static statement by Congress. In fact, many aspects of the statute are clearly aimed at collecting information and monitoring the ongoing behavior of the financial system so that Congress can decide if further change to the financial system is necessary. This summary of the key features of Dodd-Frank authored by a major corporate law firm that advises banks makes clear the role of the statute in enabling Congress and the President to maintain ongoing live and dynamic oversight that could and should lead to further changes in banking structure.

One key feature of the Act? A Financial Stability Oversight Council (FSOC) which has several key roles including (according to that law firm): “identifying risks to U.S. financial stability that may arise from ongoing activities of large, interconnected financial companies as well as from outside the financial services marketplace, promoting market discipline by eliminating expectations of government bailouts, responding to emerging threats to financial stability.”

No wonder the authors of this report tell their banking clients in summation: “There will be much more to come once the studies mandated by the Dodd-Frank Act are completed. There also is every reason to believe that the rule-making process will be a long and winding road.”

In fact, in part, Dodd Frank did restructure the banks by implementing the so-called Volcker Rule which forbids proprietary trading by banking entities.

Recent controversies, post Dodd-Frank, suggest that such active oversight is warranted. JPMorgan, for example, had no idea that it was building up a huge bet on synthetic credit INSIDE the very part of the bank that was supposed to be reducing risk! The London Whale scandal would likely have led to a break up of the bank in a rational world and certainly should have led to the dismissal of its CEO. Arguably this was a form of proprietary trading and thus in violation of Dodd Frank (although the Volcker Rule provisions were not finally passed until after this particular scandal – just good luck?) Can anyone not believe that Sanders and the Minneapolis Fed President Neil Kashkari are raising alarms about a serious ongoing problem in the financial system?

Please note I am not taking a position here on whether all the banks should be broken up. I do think that the repeal of Glass Steagall did unleash serious problems and enabled a hidden bubble to build up inside large banks that blew up in 2007-08. For a full discussion of the normative debate about whether to break up the banks consider the comments expressed at a Brookings Institution conference by Kashkari of the Minneapolis Fed recently here.

*Given the opportunity to expand on his earlier comments to the Daily News on the Morning Joe program today (April 8) Senator Sanders confirmed that he intends to use both existing Dodd-Frank provisions and additional legislation. He pointed specifically to Section 121 of Dodd-Frank which allows the Federal Reserve with the backing of FSOC to impose structural changes on banks including restricting product offerings or terminating activities.

Chinese state cracks down on Berkeley labor education effort

A major blow to the idea that there can be engagement with the Chinese state unions as described in the Wall Street Journal.

Another account here:

Chinese state cracks down, but workers keep fighting | REDFLAG.

Sadly, some in the law school world operate under the same illusions as some in our democratic labor movement. See my exchange with NYU professor Rick Hills here and here.

A Fall 2016 seminar on “global tectonics” – call for papers

The theme will be the application of law to the problems created by what I call “global tectonics.” I intend to consider problems like the Ukraine, Boko Haram, Mexican drug violence and more. Students will be reading the globalization and rule of law literature and then examining these trouble spots where global social, political and economic tectonic plates are clashing. They will be asked to consider how or whether legal solutions to these situations are feasible. If you have any ideas for papers or other material for the seminar or would like to present work of your own please let me know. My campus email address is sdiamond@scu.edu.

Putin dances to the tune of fictitious capital

Today’s Financial Times has a front page story on the newest stage of the Russian crisis. Putin’s Russia is being hit by both western sanctions as a result of its invasion of its sovereign neighbor, Ukraine, as well as by a glut in the supply of global oil.

This chart indicates the significant downward move in oil prices:

ChartBuilder-1

As a result, the world market is marking down the value of the Russian economy and hence the ruble is tanking in value.

In response, Putin is now forced to pump large amounts of cash into the banking system to keep key financial institutions afloat. The latest infusion amounts to close to $8 billion for three major banks. While the regime is claiming the ruble crisis is over, the FT story includes the following: “This is only the beginning,” said a senior executive at a large Russian financial institution. “Everyone is bracing for what comes after new year.”

Indeed the news about the bank infusion sent the ruble down again Friday after a rally earlier in the week. The overall damage of recent months is clear in the chart below:

ChartBuilder

Meanwhile in a recent speech Putin continued to make noise about diversifying the Russian economy which is another way of admitting that a quarter century of post-Cold War political and economic development has largely been a waste for the majority of Russians (and for much of the former eastern bloc as a whole it might as well be said, Ukraine first and foremost).

Thus, the Cold War may be over but we are far from resolving the fundamental imbalances in the global economy. These have now become so severe that countries like China and Russia are increasingly willing to confront the West with provocative actions like the Ukraine invasion and the assertion of Chinese sovereignty in the south China sea area.

It is understandable that we sympathize with the victims of this kind of aggression but pushing counties like Ukraine to choose Nato membership over genuine autonomy, which has been US policy for years, only stokes the tensions with Russia and provides Putin with political capital that he uses to shore up his own domestic position. Sanctions, too, are a dual edged sword. It is true that Russia needs the world economy but authoritarian forms of capitalism have been very stable over time. As the crisis deepens inside Russia it is just as possible that it will lead to greater centralization of power by Putin and his military and bureaucracy.

In victory for women’s rights, California agency blocks anti-choice effort at two universities

In a clear affirmation of the longstanding right of women and girls in California to choose whether or not to terminate a pregnancy, the Director of California’s Department of Managed Health Care (DMHC) this week rejected a multi-year effort by the administrations of two California universities affiliated with the Catholic Church to limit coverage of abortions in their employee health care plans.

California has long led the nation in the protection of a woman’s right to effective reproductive health care. Since the early 1970’s case law, statutes and the state Constitution itself have made it clear that under California law all women and girls possess a right to choose whether or not to terminate a pregnancy. Thus, the California Constitution enshrines an express right to privacy as a result of an amendment that followed court cases recognizing a woman’s right to choose. This was followed more recently (2002) by the Reproductive Privacy Act (RPA) which guarantees a woman’s right to both terminate a pregnancy and to birth control.

These fundamental rights to reproductive health care are reinforced by statutes that require state regulated health care plans including insurance plans and HMOs to provide coverage for safe and effective means to terminate a pregnancy once a woman or girl has exercised her right to choose that outcome.

There is only one category of abortion that an HMO or insurance provider would not be required to cover: an abortion that is illegal under the California Reproductive Privacy Act (termination of a pregnancy of a viable fetus is illegal under the RPA).

(One aspect of the law that confuses many is the question of what is a non-medically necessary abortion. Some anti-abortion advocates characterize such an abortion as “elective.” In fact, there is no category called “elective” abortion under California law unless one is referring to the right of a woman to “choose” to have an abortion (for whatever reason) in the sense that she may elect to have an abortion. A 1967 California statute called the Therapeutic Abortion Act attempted to create a distinction between abortions needed to protect the life of the mother and other abortions. At the time this was an advance from an era where all abortion was illegal. But the California Supreme Court struck down that attempt to create different classes of abortions In People v. Barksdale (1972) as “impermissibly vague.” The effect was to recognize abortions generally as legal in California prior to the US Supreme Court decision in Roe v. Wade. The TAA remained on the books, however, until expressly repealed by the RPA when it went into effect in 2003.

(The choice to have an abortion is, thus, separate from what kinds of medical or surgical methods are safe and effective to carry out that choice. Any such safe and effective method is considered “medically necessary” under the Knox-Keene Act and therefore will be part of providing a basic medical service that must be covered by a plan licensed under the Act by the DMHC, as the letters to the major insurers from the DMHC make clear. A non-medically necessary abortion is an oxymoron. Confusion may exist because some insurers explain to their beneficiaries that a request to use a drug like RU-486 for treatment of a medical condition other than pregnancy is considered “experimental” and therefore not “medically necessary.”)

Despite this clear Constitutional and statutory framework, in place since the mid-1970’s, certain entities affiliated with the Catholic Church have attempted to put in place new categories or distinctions that would carve out certain abortions from those that are protected under California law.

A few years after a resounding legal defeat at the California Supreme Court in 2004 (in an attempt to overturn the Women’s Contraception Equity Act), the Catholic Church apparently used its influence at Loyola Marymount University to get the University and its insurers to engineer in secret approval by the DMHC of an HMO product that would have prevented coverage of what Anthem called “elective” abortions as well as a wide variety of birth control methods. This restriction was approved in a hidden administrative process inside the DMHC, which has regulatory authority over the HMO industry in California, during the Schwarzenegger governorship. For more detail on that effort see my earlier post here.

DMHC records obtained through a Public Records Act request suggest that that 2008 decision was made on the basis of a relatively thin legal analysis with no reference to the Constitution or the RPA. In any case, Anthem did not in fact sell any HMO product based on that 2008 interpretation by the DMHC. Only in 2013 did Loyola Marymount University and Santa Clara University, both Jesuit affiliated schools, announce their intent to buy health care plans from Kaiser and Anthem that would exclude some abortion coverage.

Their announcement of this intention included new categorizations of abortions called “medically necessary” and “elective.” The new plans would have eliminated whatever was considered an “elective” as opposed to a “medically necessary” abortion. As explained above, the concept of an “elective” abortion does not exist in California law. Tellingly, neither the Universities nor the insurers ever definitively explained what kinds of abortions these new categories would include and provided no legal basis for these distinctions. At one point, Santa Clara University proposed language that mirrored that of the Hyde Amendment, attempting to define any abortion that was undertaken for anything other than to save the life of the mother as “elective.” Again, there was no basis for this kind of discriminatory language in California law, as the DMHC has now unambiguously agreed.

Faculty at Santa Clara University objected to this effort by the University Administration and its Trustees and, with the strong support of the campus chapter of the American Association of University Professors (AAUP), convened a special session of its Faculty Senate, apparently for the first time in the 150 year history of the school, to affirm its objections to the University’s new policy effort. Specifically, faculty objected to the failure of the University to abide by its commitment to shared governance in attempting the policy change. A campus wide vote of the faculty overwhelmingly approved this objection.

Several faculty demanded that the University define these new categories so that employees could understand the implications for their health care and to provide an explanation why these categories had a legal and constitutional basis in California. Many university staff and several student groups supported these efforts.

The University was never able to answer that challenge. University officials said they were attempting to answer those questions in conversations with Kaiser and Anthem. But no clear answer was ever provided. Instead, in the face of continued faculty and staff efforts to block the policy change, the trustees of Santa Clara publicly backed up the Administration and even went so far as to suggest that they were morally obligated to stop coverage for abortion because women faculty and staff might be using abortion to engage in “gender selection” of their children. This claim outraged many on the campus because it was not only facially absurd and not backed up by any serious research (in fact, quite the opposite, see here and here) but a racial slur aimed at Asian American communities. Unfortunately, this kind of charge has been used more widely of late by many in the anti-abortion movement.

Several faculty members at both SCU and LMU began a concerted effort last fall to raise objections to the proposed new restrictions with the State of California. Working closely with several advocacy groups including Planned Parenthood Affiliates of California, the ACLU of Northern California, the Trust Women Silver Ribbon Campaign and the National Health Law Program, extensive discussions with the DMHC took place.

Finally this past week the DMHC agreed unequivocally that the proposal by the University administrations at LMU and SCU had no basis in California law.

The Director of the DMHC, Michelle Rouillard, admitted that earlier approvals of new products that would have ended coverage of legal abortions were wrong. Further, she stated, using new discriminatory categories and limitations like “elective” abortions was inconsistent with both the California Constitution and the Knox-Keene Act. The letter, sent to seven major insurers, can be found here.

There has been widespread media coverage of the effort by SCU and LMU faculty and staff to defend reproductive freedom here, here and here. The ACLU has posted a blog about the DMHC letters here.

My review of Human Rights and Transnational Solidarity in Cold War Latin America ed. by Jessica Stites Mor

Misguided approaches to the Cold War and the authoritarian regimes supported by both Washington and Moscow abound. My hope that this volume would do a better job were disappointed.

Human Rights and Transnational Solidarity in Cold War Latin America

Are corporations people, too? A post-Hobby Lobby look back at the history and law

In the wake of the recent Hobby Lobby decision by the US Supreme Court readers may be interested in my earlier take on the corporate personhood debate published on line at Dissent Magazine here.

The hidden history of the Equal Rights Amendment – my newest book, better late than never

thThe Center for Socialist History has just published my book The Hidden History of the Equal Rights Amendment which I had the privilege of co-authoring with the late Hal Draper.

I drafted a new foreword for the book but it is otherwise unchanged from the original ms. which Hal and I finished in the late 1980’s in the wake of the defeat of the ERA. There has been some research on the Amendment since and certainly some important developments with respect to the rights of women but the publisher and I thought it important to retain the argument as it was completed then, more or less contemporaneously with the end of that era of the women’s movement. We did, of course, try to get it published then but ran into roadblocks which I describe briefly in the foreword.

The history we examine in detail is very much in the news today as this essay by Louis Menand in a recent New Yorker suggests. Menand gets some important aspects of the story wrong, however. I have sent the magazine a short letter in response and will wait to see if they print it before laying out my comments here.