Archive for July, 2013


Standards of Outrage

   Posted by: Robert    in Uncategorized

Lately, it seems like every time I turn around, there’s a new government surveillance program to worry about.  This whole series of revelations started back around the time that the Democrats needed any excuse to get off the topic of Benghazi and, ever since, has blossomed into a full fledged story in its own right.

In the past two months, we’ve learned that the government wiretapped a Fox News reporter, routinely gathers metadata about international calls (this wasn’t news), metadata about purely domestic calls (this was), may or may not have direct access to the data we store on the internet through a program called PRISM, and stores the contents of every encrypted message they happen to intercept (even the completely domestic ones) until such a time as they break its encryption, and has pictures of every envelope sent through the mail since somewhere around 2001.  Looking further back in time, anyone who’s watched an episode of CSI knows that the government can track your cell phone, often without a warrant.  Less well known is the fact that the government can read your email, without a warrant, as long as you store your email in the cloud1 and it’s been more than 180 days since you sent or received that message.  Automated license plate readers store the passing of every car in a database for police to access and the data is considered so non-sensitive that private insurance companies are allowed access.

Despite voluminous reporting on the subject, it’s hard to see the overall response as anything other than a collective shrug of the shoulders.  The liberal media, for its part, has been more interested in playing a game of “Where in the World is Edward Snowden?” than it has been in investigating anything that he had to say.  Conservative media, too, seems far more interested in Edward Snowden himself than in any of the information he brought to light.  In typical fashion, Democrats have no qualms about invasive government programs as long as it happens to be a Democrat running them.  Somewhat surprisingly, Republicans — even the smart, conservative ones — are satisfied that the government is legally allowed to do these things, which makes the whole thing a non-story.

If there’s really nothing to see, here, how about we go back to talking about Benghazi?

The fact of the matter is, the story here is huge.  But it’s a story that nobody wants to tell, and it’s a story that most people don’t want to hear.  We are, for the most part, content to believe that the only people who have something to fear from government surveillance are people who have done something wrong: Our enemies, terrorists, and criminals.  But law abiding citizens have plenty to fear, as well.  After all, if there was no benefit to collecting data on law abiding citizens, what possible reason could justify its collection?

To even ask the question in that way — to ask the government to justify why it is doing something — is to defy the current prevailing wisdom.  We almost never demand to know why the government does something.  Instead, we’re content as long as they stay within the bounds of the Constitution, as we’ve come to accept those bounds, and accept them at their word that whatever they’re doing is important.

As recently as six years ago, our news reporting was filled with hard questions about whether or not the government had become too powerful for anyone’s good.  Time and again, liberals expressed their outrage in volumes about how the government mistreated its enemies; cried about how Bush’s actions were, if not unlawful, then at least unbecoming of the most powerful nation in the world; and ran to the courthouse demanding that any law which supported the military’s activity be stricken.  It simply didn’t matter whether or not the government acted lawfully, it didn’t even matter if what they accused the government of doing even happened; the one and only question was whether what the government allegedly did was right.

As I plan to explore in my next series of posts, there is absolutely nothing right about what the government has done to privacy in America.  Its erosion has been a long term campaign, waged by both parties, each one picking up where the last one left off.  In many cases, the encroachment by the government has been lawful, but that doesn’t mean we should just shrug our shoulders.  Instead, we ought to be out in the streets, in front of the Capitol, and maybe even in court to demand that the government step back.  It’s time we got pissed.

  1. This includes using a web mail provider like GMail, Yahoo Mail, Microsoft Live, or any of the hundreds of others out there; checking your mail using the IMAP protocol; or if you  have some other way of synchronizing your email between more than one device. []

Initiatives, Cases, and Controversies

   Posted by: Robert    in Uncategorized

What an interesting resolution the Supreme Court found to the question of California’s Proposition 8 in Hollingsworth v. Perry.  Although a resolution on jurisdictional / standing grounds was always a real possibility, it had always struck me as one of the least probable outcomes.  Like many others, I expected the Supreme Court to reach the merits of the case to decide either, narrowly, whether the initiative process could be used to overturn the California Supreme Court or, broadly, whether the Federal Constitution requires acknowledgement of gay marriage.  The non-ruling has left many commentators discussing the implications of the decision with respect to Prop 8 (with the State, very quickly, jumping at the opportunity to begin ignoring it state-wide, despite it theoretically remaining in force outside the District Court’s geographic jurisdiction).  The implications for gay marriage, however, are probably the least interesting part of the ruling in the long term.  Far more important is what the ruling means for the ability of the people to check the actions of their government through the initiative process.

In his dissent, Justice Kennedy lays out the new and significant hazards posed by the Court’s ruling for the initiative process (citations omitted):

The very object of the initiative system is to establish a law-making process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimately resides in the people.”  The right to adopt initiatives has been described by the California courts as “one of the most precious rights of [the State’s] democratic process.”  That historic role for the initiative system “grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.” The initiative’s “primary purpose,” then, “was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.”

The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. See id., at 1160, 265 P. 3d, at 1030; cf. Alaskans for a Common Language, supra, at 914 (noting that proponents must be allowed to defend an enacted initiative in order to avoid the perception, correct or not, “that the interests of [the proponents] were not being defended vigorously by the executive branch”). Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure. And in light of the frequency with which initiatives’ opponents resort to litigation, the impact of that veto could be substantial. As a consequence, California finds it necessary to vest the responsibility and right to defend a voter-approved initiative in the initiative’s proponents when the State Executive declines to do so.

In other words, the State of California provides special standing to proponents of initiatives precisely to defend against the type of gamesmanship played by the State in this case.  By enforcing a law that it refuses to defend in court, then refusing to appeal its loss (if “loss” is even an appropriate term, under the circumstances), the State can use a Federal District Court to strike down initiatives that it does not like without a single appellate court having any opportunity to review the case.  Such a result defies our usual understanding of Due Process, which typically includes so many appeals that we often wonder if a case is ever going to end.

The appellate process serves as a check on the human nature of judges and courts.  Even an ideal judge, with years of education and experience, who is committed to the law with no plausible interest in the outcome of a case (either personally or politically) is prone, as all humans are, to making mistakes.  The appellate process is a means to reverse those mistakes after they’ve happened, but before they can have a lasting effect on the parties, the law, or the nation.  In cases where a judge may not meet the ideal, the appellate process is all the more important.  Indeed, it is worth wondering, in a case such as this where there is no realistic opportunity for appeal, if the case should even have been heard in the first place?

In light of the Supreme Court’s decision in Hollingsowrth, it now seems clear to me that it should not have been.  What possible “controversy” can there be when the plaintiff comes to court asking for a law to be overturned, and the State, as defendant, essentially tells the judge, “Yes, we would like that, too.”  When all of the parties in a case agree, there is no plausible controversy to find.  That an interested third party has a different point of view should make absolutely no difference; Hollingsworth makes clear that only the named parties matter for federal Article III standing.  In addition to vacating the decision of the Ninth Circuit, the Supreme Court should also have vacated the District Court’s opinion and instructed that the case be dismissed for lack of Article III jurisdiction.

Even if the Supreme Court had dismissed the whole case, the initiative process would still be in trouble.  States could provide a pro forma defense of undesirable initiatives to create a false “controversy” which a court could adjudicate and then, as they did here, bow out of the appellate process as soon as their “opponents” win.  Perhaps that could be corrected somewhat with a state constitutional amendment compelling state officials to appeal the loss on any initiative all the way to the Supreme Court, but how to enforce such a mandate is a critical and hard question that would need to be addressed.

Assuming that the mandate could be resolved, a pro forma defense is certainly not the sort of vigorous defense that makes for effective litigation.  In the realm of criminal defense, we have requirements for effective assistance of council which are particularly applicable to public defenders (attorneys who, it is often assumed, do not have the utmost interest in giving their clients the best possible defense, or the skill to provide such a defense even if they wanted to).  To eliminate the pro forma problem, we would need something similar in the initiative defense arena, but, as the only people interested in claiming ineffective counsel would be third parties who lack standing, there would be no means to develop or enforce such a system unless federal judges were to take it upon themselves.  Federal judicial interest in creating such a system is doubtful for a number of very good reasons.

The unfortunate reality is that states now have a judicially sanctioned playbook for eliminating initiatives that they do not like which initiative sponsors will find difficult, if not impossible, to overcome.  Indeed, the states now have a perverse incentive to want to litigate in federal court, where the decision of a single Federal District Court judge is enough to overrule the opinion of the state’s voters in a way which cannot be reviewed on appeal.  Because District Court rulings are technically binding only on the parties to that particular case, a state can (decline to) litigate the issue ad infinitum, in multiple courts, in front of multiple judges, with multiple plaintiffs, in a variety of circumstances, and needs only to get an un(?)favorable ruling in any single one of those cases to have an initiative federally, permanently, and unreviewably enjoined statewide.

The initiative system in California, and other states, was originally developed as part of a populist movement in which public distrust of the government led to an effort to enact laws in a more democratic manner.  Because the initiative process was a check on government power, it is intentionally difficult for the government to undo an initiative once it’s been enacted.  But now, because it will nearly always be possible to find some judge somewhere to rule against any law, defeating initiatives just became as easy as encouraging lawsuits and waiting.

Despite the apparent modesty of the Supreme Court’s ruling, their opinion in Hollingsworth has dealt a critical — possibly fatal — blow to one of America’s most well known direct democratic processes.  It is, in fact, a sweeping power grab for state governments by way of the federal judiciary.  While it’s impossible to know how the Court might have ruled on the merits of the case, it is doubtful that any merits ruling would have had such a profound and sweeping impact as their decision ducking the merits seems likely to create.