Category Archives: Law: Constitutional Law

In When Is a Search Not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping, Josh Dugan has written the most interesting article I've ever read on the Third Amendment to the US Constitution.

OK, it is in fact the only article I've ever read on the Third Amendment, and that alone made it interesting. But there's more.

Here's the key part of the conclusion:

… the Amendment prescribes practical rules for limiting the enforcement power of the most coercive and dangerous organ of government power: the military. The Amendment’s proscription against military enforcement of civilian law is evident in the founding debates and documents and is the best explanation for the Amendment in the larger constitutional scheme. This explanation also frees the Third Amendment from offering a redundant protection already contained in the Fourth Amendment. Far from being irrelevant to contemporary constitutional law, the Third Amendment could have an enormous role to play in today’s constitutional schema. As the military establishment grows and its role confronting terrorism expands within the United States, the Third Amendment provides the proper backdrop against which to analyze those military actions which intrude on an individual’s life and constitute traditional law enforcement functions, such as wiretapping. This test would categorically bar the military from enforcing the law against civilians during peacetime but would allow the military to do so without any further conditions, so long as the activities were approved by Congress, during time of war.

While the structural argument based on comparing the Third Amendment to the Fourth Amendment is on first glance plausible, it's new to me and I have to think about it more before I'm willing to commit myself to accepting it.

I do have to wonder about the history. I don't know enough to form a view as to how accurate it is, and would like to know a lot more about how, if the argument that the Third Amendment's ban on “quartering” was seen as addressing something general about military-civilian enforcement relationships rather than something fairly specific about military intrusion into the home, this reading got so quickly forgotten. Certainly the article's account of Story's position didn't seem to me to support the author's account nearly as much as he seemed to think it did…

But despite these doubts, it's a fun read for constitutional law mavens.

I see that President Obama had the Chief Justice re-administer the oath of office (correctly) this time in an 'abundance of caution' following the imperfect recitation of the oath the first time (due to mis-prompting by the Chief during the Inaugural).

I don't think there are in fact four federal judges in the country who would have held that Obama was not in fact the President at all relevant times were the issue to have gone to trial. Even so, I agree that the re-administration of the oath of office was a fairly costless way for Team Obama to pacify the wingnuts and ultra-orthodox strict constructionists who might have been baying at the moon on this issue.

I post now, after it's (almost) all over only to make two points:

• Those commentators (not naming names, sorry) who said the entire issue could never be decided on the merits due to the lack of probable plaintiffs with standing were in my humble opinion simply wrong. Any bill signed by the purported President would not in fact be law if the person signing it were not the office-holder. Ditto for any official act by anyone nominated by a non-President. There would have been armies of people with standing. Which makes me wonder whether Obama, in a further excess of caution, re-signed any first-day documents (such as the Cabinet nominations) post-re-administration of the Oath. In for a penny, in for a pound, I say.

• Other than the fact that it would have cast an unwelcome and unnecessary cloud on a Presidency that has enough to worry about already, it actually would have been a fun case to watch. Since I believe every judge would have been results-oriented on this one, the process of getting to that result might have produced some interesting anti-formalist doctrine that might have had knock-on effects in other areas.

Update (1/22): From Political Animal,

Just for the record, Obama really was president after the first oath, and everything he did yesterday was legit. In 1789, George Washington was president for seven weeks before he'd taken the oath, but he still had all the authority of the office.

That sounds like contemporaneous construction to me.

I don't usually like to throw questions out to the lazyweb, but this is the first week of classes which is always busy.

So here's my question: the Senate has started a whole round of confirmation hearings for Cabinet and other top appointments by president-elect Barack Obama. But as far as the Constitution is concerned, only the President, not the President-elect, can make nominations to government jobs. The Senate is of course free to hold hearings about whatever it wants, and there is no constitutional requirement for a committee to do anything prior to the full Senate's exercise of its 'advice and consent' power. But I don't see how the full Senate could vote on a nomination without there being an actual official nomination.

Legally, I can see two ways for this to work. Either the incumbent has already made a courtesy nomination, which I think is highly unlikely, or the Senate is front-running on the actual nomination, which will come as soon as Mr. Obama is inaugurated. In the first version, the full Senate can vote any time; in the second version the Senate can't actually vote until January 20, after the nomination officially happens. (There is of course at least one more possibility, which is that the niceties are not being observed. Yet even if there were a transitional statute that applied I don't see how it could trump the Constitutional provisions governing appointments of the leading Officers of the United States.)

NPR, at least, reports that,

Kerry has said he plans to hold a committee vote before week's end, setting up a scenario where the Senate could confirm [Sen.] Clinton before Obama is sworn in Jan. 20, and a new senator named to fill her New York seat.

If that's right, my second scenario is wrong. But then again, maybe that's not right.

Anyone know the actual facts?

Seems like I may have wasted my time writing that pardon post (Bush “Revokes” A Pardon (When Do Pardons Vest?))… The New York Times has a statement from the White House on the pardon revocation:

Based on information that has subsequently come to light, the president has directed the pardon attorney not to execute and deliver a grant of clemency to Mr. Toussie. The pardon attorney has not provided a recommendation on Mr. Toussie’s case because it was filed less than five years from completion of his sentence. The president believes that the pardon attorney should have an opportunity to review this case before a decision on clemency is made.

If we can believe what the Bush administration says (can we?) this suggests pretty strongly that we were at what I called “step one” — nothing had been signed or sealed. In which case, legally, it's a non-issue.

Update (12/26): Brian Kalt argues, with some reason, that maybe I gave up too easy. The key fact — as I suggested half-heartedly above, but couldn't quite bring myself to believe — is that the White House may have been misleading us about whether a formal pardon was actually executed. Here's part of what Prof. Kalt writes,

The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn't purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”

Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn't hold up.

Could this be another example of what Brad DeLong says: “The Bush Administration: Worse than You Can Imagine Even Though You Know It Is Worse than You Can Imagine”?

Extraordinary (in the sense of rare and nearly unprecedented) piece of news today: Bush withdraws 1 of 19 pardons he issued Tuesday.

To a Constitutional lawyer, the interesting question is whether it is even possible to revoke a pardon once it is given. It is long-established that in the eyes of the law, a full pardon makes it as if the offense — not just the conviction — never happened. The Supreme Court said 125 years ago that “the pardon not merely releases the offender from the punishment prescribed for the offence, but that it obliterates in legal contemplation the offence itself.” Carlisle v. United States, 83 U.S. (16 Wall.) 147, 151 (1873). [Note, however, that some courts hold, controversially, that a pardon does not preclude the imposition of attorney discipline based on the underlying conduct, because a pardon “cannot work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen.”]

So, pretty clearly, once a full pardon is signed, sealed, delivered, and accepted by the recipient, that's it: you can't take it back. (So called-conditional pardons, which may have a condition precedent are a different animal, but that's not what we're talking about here.)

The AP's story is very scanty on the legally significant facts, saying only that Bush “revoked” a pardon, and then discussing the reasons for the sudden turnaround. That could mean almost anything.

If Bush had not formally signed a pardon document, then there's no legal issue: what's been revoked is an intention to pardon, and the public announcement doesn't create any legal obligation to actually do so. The cases are clear on that point.

But if the President actually signed a pardon, then changes his mind, all of a sudden we're in interesting territory, reminiscent of Marbury v. Madison but involving a completely contrary opinion by Chief Justice Marshall.

Logically there are four steps in a regular (as opposed either a general or conditional) pardon:

1. The President makes a decision.

2. The President signs a pardon, and (perhaps) it is sealed to show it's official.

3. The pardon is delivered to the beneficiary.

4. The beneficiary accepts it.

Everyone agrees that after step four under US law the pardon is unassailable.

It seems to me also that there's basically no debate that by then end of step three, the pardon is final and cannot be revoked, even if the beneficiary hasn't yet decided whether to accept it or not. And, as noted above, after step one, there's nothing to revoke except a legally meaningless promise.

The interesting case — which may or may not exist here, we don't yet know — is whether a pardon can be revoked after its signed (and sealed), but before it's delivered. It doesn't happen very often, but it's not unheard of.

I'd argue that the answer to that question ought to be no — once a pardon is signed and sealed, that's it, the thing is done forever unless the recipient of the pardon rejects it. Here's why: First, persons can be pardoned in absentia, by general proclamation, or even posthumously, in situations where delivery is impossible, or at least unnecessary. (On the other hand, as discussed further below, no one is obligated to accept a pardon; some might see it as an admission of guilt, or in the case of conditional pardons might find the conditions unpalatable.) Second, it would be bad to create a now-you-see-it-now-you-don't pardon that some future President Blagojevich could sign but not deliver, tricking someone into acts of reliance to their detriment.

There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall's in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official's commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President's Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:

President Andrew Johnson's offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy's agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. … Indeed, President George W. Bush's administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.

So, depending on the facts and especially how advanced the paperwork was, Robert Toussie of Brooklyn, N.Y. may have an interesting case, or he may have nothing.

Incidentally, according to Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. Rev. 947, 979 n.105 (2003), Bush decided to let Clinton's pardon of Marc Rich go through, despite doubts as to whether the paperwork was final: “President Bush considered the possibility of revoking this pardon but decided against it “to protect that privilege, not only for me but for future presidents, as well.” (citing John Riley, Bush Won't Revoke Pardon of Financier, Newsday, at A14 (Jan. 30, 2001)).

It's interesting that Bush's concern eight years ago “to protect [the pardon] privilege, not only for me but for future presidents” seems to have attenuated. What would Cheney say?

Under the Supreme Court's decision in Tinker v. Des Moines Independent Community School Dist., students in public schools are allowed to wear political statements to school (the case concerned black armbands protesting the Vietnam war, back when we had student protests against wars), so long as they are not “disruptive”.

The application of this standard has caused considerable angst over the years, with school Principals sometimes allowing what to my eye is a 'heckler's veto' when they forbid some controversial statements because it could cause trouble. The cases as a group don't make a whole lot of sense to me (e.g. no to a T-shirt with a gun, yes to a pro-gay rights shirt, no (mostly) to the confederate flag, and so on). But that's not the point of this story.

One of my sons goes to public school. We were talking this morning on the way in, and we got around to whether people wore Obama or McCain buttons to school.

“We're not allowed to do that,” he said.

My lawyer brain lit up with a big blinking TINKER! sign.

“Why not?” I asked very calmly. (LAWSUIT! LAWSUIT! I'm thinking.)

“Because we're not allowed to have anything sharp, and the buttons have sharp parts [pins] on the back. Teachers can wear them, but we can't.”

“Oh. Would you be allowed to wear a sticker?”

“Sure.”

We often hear that law on the sharp end is different from law in the books. Here's a content-neutral prohibition — part of a general zero-tolerance policy on weapons and the like — that I imagine the school could successfully defend as a safety issue in almost any court. And yet it shuts down a whole range of political speech.