Category Archives: Law: Constitutional Law

The Bolton Affair, which until now was just an engrossing political slug-fest in which the Vice-President gambled his boss's political future has suddenly lurched into a Constitutional crisis.

The administration has put so many chips on the table for this one that losing would not only dent, but actually detonate, its image of invulnerability. Once blood is in the water the legislative sharks start to circle, and the administration's ability to cram legislation down congress's throat becomes reduced or non-existent. So far, that's just politics as usual. (Clinton's moment of defeat was the first week of his first Presidency, when he went back on his promise to let gays serve openly in the military. Everyone on the Hill understood that if Clinton would back down on a campaign promise when confronted by people sworn to obey him, he could be rolled like a drunk when it came to dealing with legislators with their own agendas. Health care died in the Oval Office before the Clinton administration was two weeks old.)

What is not politics as usual is that the Bush administration has suddenly escalated the Bolton stakes yet again — this time to a constitutional crisis level. Bolton is suspected of using NSA intercepts to spy on his colleagues or to undermine then-Secretary of State Powell. Nothing has been proved. The chair of the Foreign Relations Committee and Democratic Senators have asked to see copies of the same NSA intercepts that Bolton (a mid level appointee) was allowed to see, in order for the Senate to weigh those charges.

Now the administration has said Senators with a constitutional advise and consent duty can't have the same access to NSA intercepts that third-level state department people get. As Steve Clemons says, that changes everything.

It's possible there may be nothing in the intercepts. It would be classic Rove to build them up in the hopes that they become the sole issue — distracting everyone from the out-of-control maniac who allegedly ran down a Moscow hotel room chasing a low-level bureaucrat for the crime of being honest, banging her door and howling like a loon, and then later spending days trying to destroy her career. Build the intercepts up as the only issue, then give in, say that the administration went the 'extra mile' and see! Bolton has been 'cleared'! That would be classic Rove indeed.

So it's important not to let the intercepts become the entire show in this three-ring circus. But it's also important that the Senate not set a precedent that it can be treated like a potted plant.

It is time, again, to praise Is That Legal?

Eric Muller is a public intellectual in the best sense: engaged with real things. I especially recommend the series of posts on under-the-radar Christian propaganda in public schools that not-very-subtly attacks other religions — and is required (or extra credit) reading. The stuff is published and promoted by the Renaissance Learning company, and adopted by schools either because they share the worldview or, more likely, because it comes with convenient little tests that the elementary students can take. I hope Eric will organize these posts onto a separate, easily indexed free-standing page, but until then, if you have a child in public school, or care about the separation of church and state, see Part 1, Part 2, and Part 3.

And watch out for “Escape from Egypt” or “Journey to Japan” in your elementary school library.

PS. Eric's more recent series of posts attempting to correct rapidly propagating untruths about an element of the the new Pope's biography are good too.

Eleventh Circuit decision refusing on a 2-1 vote to overturn the district court's denial of a TRO.

SCOTUSblog has the details, Further Updates on Schiavo Case — CTA11 Decision and Amended Complaint,

Meanwhile, back in the district court, the parents have filed an amended complaint in which they have added claims under the Americans with Disabilities Act, the Rehabilitation Act, the Eighth Amendment, and (in Count Eight) what might be called a “converse Cruzan” claim, i.e., a claim that (i) there is no clear and convincing evidence that Ms. Schiavo would have wished that nutrition be withdrawn, and therefore (ii) Florida denied Schiavo due process by permitting Schiavo's legal guardian to withdraw food and water from a patient in a persistent vegetative state. (In Cruzan itself, the holding was that the state does not violate due process by prohibiting the withdrawal of life-saving interventions absent such clear and convincing evidence. The Court did not hold, however, that a state is constitutionally obligated to prevent the guardian from choosing such withdrawal in the absence of the clear and convincing evidence of the patient's desire to withdraw treatment. Indeed, Cruzan did not suggest any minimum level of protection a state must give to the interest in life (against the interest in bodily integrity)—that decision merely says that the state doesn't exceed the maximum allowable level of state-law restriction when it demands clear and convincing evidence that the individual would have preferred death to indefinite prolongation of the permanent vegetative state. Does anyone know of any such “converse Cruzan” claim in another case?)

In the comments to my prior Schiavo-related post a reader asks,

would like your opinion on the standard the judge applied regarding whether to grant the TRO. Clearly this would be the standard applied in any “normal” federal request for a tro. However, I am not so sure that Congress' silence on the standard to apply for such a request should have necessarily been a reason to assume that the normal federal standard should apply. This was not a normal situation, and not a normal statute. I think Congress intended for the parents to get their day in court to fully litigate the due process issues. If you look at the motions and their sparse discussion of these issues, its clear that although the judge was fairly logical, the legal issues have really not gotten “their day in court”. By applying the “likely to prevail” standard, I think the judge stymied what the true (albeit unarticulated) intent of Congress really was. I think Congress intended a much lower standard, probably that the claims are merely non-frivolous. well, silence is golden, and as the judge wrote the constitutionality of the new statute is questionable. but would like your thoughts.

OK. Here are my thoughts:

I think every decent federal district judge in the nation would have done the same thing with this complaint. We can all speculate about what “Congress” — a multi-member body — “thought”, but we can all agree on what the statute says. And it is jurisdictional only. That means the ordinary standards for everything else MUST apply.

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