I’m putting together my annual list of books to read. I rarely, if ever, actually stick to these lists; I get sidetracked like a dog smelling flowers by the side of the road. But it’s still a worthwhile exercise. I’m usually pretty good at the beginning of the year, at least. Anyway, I’d like to get recommendations: is there some book you particularly enjoyed, or thought I would enjoy, or hope will change my mind—or whatever it might be? Please email, comment, tweet, etc.
Prof. Somin has reiterated his view that the President’s legal obligation to enforce the law—that is, “he shall take Care that the Laws be faithfully executed”—really basically allows the President to enforce or not enforce whatever laws he sees fit to enforce or not enforce. Somin insists he’s not actually saying this, but in substance it is what he’s saying. Let’s take a look.
First, the language of the Constitution. This clause may be the most mandatory language in the entire document.* Not only does it use the word “shall”—the President shall take care, not “should” or “ought to” or “can”—but what he shall do is “take care.” Not just that he shall enforce the law, but that he shall take care to enforce it. And not even just enforce the law—but he shall “faithfully execute” the law. He isn’t supposed to just execute the law, but he shall take care to execute it faithfully. He shall execute it in good faith. He shall execute the law in a manner that is faithful—true to their letter and spirit; sincere; loyal.
That term “faithfully execute” is found elsewhere in the Constitution: the President must take an oath that he “shall faithfully execute the office of President of the United States.” His obligation to execute the law is thus equal to the very oath that he must take before entering the office of President. In short, the Take Care Clause is pitched at the highest register of constitutional obligation.
The word “faithfully” is one of those words that gives moderns fits. It’s a normative term. It’s not a precise, mathematical kind of term like “35 years of age.” It’s more ambiguous, like “liberty” or “privileges or immunities” or “freedom of speech.” These terms are, of course, legal terms—constitutional terms—notwithstanding, and thus are the supreme law of the land. And while courts may be reluctant to enforce this provision, that does not mean it lacks status as law. Whatever might be the distinction between law and a “political norm” (norm—from nomos, meaning law—means a rule, and a political rule, a rule for politics, is a constitution), the Constitution itself makes clear that it is the supreme law of the land.
This provision was written for the sole purpose of preventing the President from suspending enforcement of the laws of the United States. As the Virginia Declaration of Rights declared, “all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.” In this, the Declaration was reaffirming a provision in the English Bill of Rights of 1689: “That the pretended power of suspending…the execution of laws, by regal authority, without consent of parliament, is illegal.”
The case of Elonis v. United States has received a lot of attention because it touches on contemporary issues like Facebook postings and rap lyrics, but the First Amendment implications of the case are, in my opinion, overblown. Anthony Elonis posted thinly veiled—and quite frightening—threats against his estranged wife on Facebook, written in that sort of childish way that’s supposed to provide him with plausible deniability. For example, in one comment, he wrote “Did you know that it's illegal for me to say I want to kill my wife?” Other comments were phrased as rap lyrics, such as “Fold up your protective order and put in your pocket. / Is it thick enough to stop a bullet?” Although Elonis was not Facebook friends with his wife (who had indeed obtained a protective order against him), the two had mutual friends, so Elonis was aware that others would let her know what he was saying. They did, and Elonis was charged with communicating an illegal threat, in violation of federal law.
The question the Court must decide is whether he can be convicted of threatening simply because a person reading his language and knowing the context would interpret it as a threat, or whether the government must also prove that he actually intended it to be taken as a threat. This is a significant difference, Elonis’s lawyers argue, because if the first rule applies, then rap lyrics like Eminem’s raps fantasizing about murdering his ex-wife, or other types of statements, might be subject to prosecution, in violation of the First Amendment. Another, probably better example that Elonis’s lawyers gave was a tweet of a photo of rioters with the words “the tree of liberty must be refreshed with the blood of tyrants.” Would that qualify as a threat?
But while this seems to involve important questions of free speech, I think that’s mostly an illusion. As the government emphasized, even under the rule that says it’s a threat if a reasonable hearer would think it was a threat, the context must still be taken into account. The reason Eminem hasn’t been arrested for issuing threats is that a reasonable person, knowing the context, would know that these aren’t really threats. Also, the prosecutor is still required to prove the case beyond a reasonable doubt. That’s a high enough hurdle, the government argues, to preserve First Amendment values.
Most importantly, a rule that says that threatening language is protected by the First Amendment so long as the speaker didn’t subjectively intend it to be a threat would be absurdly easy to manipulate. Elonis claims that the purported rap lyrics in which he said, for instance, “Hell hath no fury like a crazy man in a kindergarten class, / The only question is...which one,” were just “therapeutic” and “venting” and “for entertainment purposes only.” A wan disclaimer like that can’t be enough to shield a person who engages in serious threats from being punished. As Justice Scalia pointed out in oral argument, it’s common law assault to threaten someone in such a way that she reasonably perceives herself as being seriously at risk. Any woman in the position of Elonis’s unfortunate wife would certainly have felt afraid, and rightly so. He should not be able to get out of jail free by saying he was kidding, or, worse, only “venting.” Venting through threats is no more constitutionally protected than is venting by blowing stuff up.
This point seems pretty well established given the news this week that Elonis sent a similar threat to a U.S. prosecutor last year that read, “I am rapidly approaching the date of my release. Accordingly, I would like to begin researching the ordinances of the municipality in which you reside. I simply do not wish to run afoul of any of them when I set fire to a cross in your yard,” followed by the emoticon “:-p,” and the words “I just thought you would appreciate my new found respect for the law.”
Context matters—everyone agrees about that. And it’s the context that distinguishes the ordinary kinds of communication, protected by the First Amendment, from those kinds of statements, like threats or defamatory comments, that are crimes. The law recognizes that a threat is a kind of injury, over and above the language in which it is communicated. If I were to move my hand swiftly toward your face, and you flinch, that’s an assault because you’ve been made to reasonably fear for your safety. When exactly the same act is carried out through language, the protection that communication normally receives should not cover up the criminality of the underlying assault. Holding Elonis responsible for his actions threatens no serious damage to the First Amendment.
I got a chance to visit the Center only about four years ago, and was delighted by the excellent displays and the beautiful integration of the site into the Independence Hall campus. It's a very cool thing to see, and I hope people will consider joining us for this exciting day.
Prof. Somin, like Prof. Obama, argues that the President is given very broad discretion in enforcing the immigration laws, and presidents necessarily choose which laws to enforce, so the decision to rewrite federal immigration laws by refusing to enforce them is legal. I don't think so.
The Constitution says that the President "shall take care that the laws be faithfully executed." Note how mandatory that language is. Not that he "should" or "will" enforce the law; he shall. And he's not just to enforce the law; he's to take care about it. And he isn't even just to enforce the law--he's to execute the law. Most of all, he is to do so faithfully. As in, in good faith. As in, in their letter and spirit. If you were writing a Constitution, and wanted to write language that would, as clearly as possible, forbid the president from choosing which laws to enforce and which not to, just to suit his own personal desires, this language is exactly what you would choose.
A president faced with limited resources who chooses to prosecute only the severest crimes the budget will allow, is faithfully taking care that the laws be executed. He's doing his best to see to it that the laws are enforced "to the best of [his] ability." Obviously choices must be made, and when made, will be made on accordance with policy. Nobody argues that the President has an "absolute duty to prosecute all violations of federal law." But he does have a duty--as absolute as any the Constitution contemplates--to take care that the laws be faithfully executed. And breaking the law--taking actions the President himself has repeatedly admitted are illegal--not as a result of budgetary problems, but simply because he disagrees with current law, is not faithful execution of the law. In fact, it is just about as clearly the opposite of that as you could get.
That's the import of the word "faithfully." In a world of limited resources, a president who says, "Well, I don't like the law, so I'm just going to use my resources to enforce other laws," can always claim he's just using his discretion. But that would not be faithful execution. Remember that the Clause in the Constitution that limits "prosecutorial discretion" is the Take Care Clause. The Constitution does not contemplate the president being legislator-in-chief. His job is to execute the law, and to do so faithfully. Prof. Somin writes that there's no distinction "between case-by-case decisions not to prosecute...and a generalized, systematic policy of not doing so in a category of cases." But this is just the fallacy of the beard. Obviously there won't be a bright line in such cases; the idea of "faithful" is too broad for that. But that doesn't mean we can't see an obvious violation for what it is. Here, the violation obviously falls on the other side. A systematic plan to disregard the law, not because it's unconstitutional, but simply because the president disagrees with the law and would prefer the law be different, is obviously not taking care that the laws be faithfully executed. Prof. Somin says we can't read the clause so strictly that "every president in the last century or more would be in violation"--and he's right; and we don't--but he reads the clause so broadly that no president would ever be in violation.
Something has to violate the Take Care Clause. If "a generalized, systematic policy of not [enforcing the law] in a category of cases" just because he doesn't like the law isn't a violation, what would be?
Now, there is one thing that I think the President could do here that would have exactly the same result as the President is seeking, and which is perfectly constitutional: the pardon power. The President is allowed unlimited discretion to pardon violations of the law, with no effective check or balance by the other branches. That's an executive power the Constitution doesn't limit (unlike the Take Care Clause, whose sole purpose is to limit "prosecutorial discretion"). Pres. Obama could pardon illegals all he wants. But--as is typical of this administration--he's chosen to go out of his way to choose the unconstitutional route, for political reasons, rather than the route our supreme law provides.
Of course, I don't expect any of this to matter. The Republican Congress has never really tried to rein in Presidential overreach. Indeed, as Prof. Somin rightly argues, Congress is largely at fault for it, by passing laws that give enormous discretion to the executive branch. But as far as the Constitution is concerned, Pres. Obama's decision to disregard the laws because he doesn't like them cannot be rationalized as faithful execution of the laws.
Update: Seemes to me Prof. Somin gives up when he says that the President would violate the Take Care Clause if he "chose targets for prosecution not based on the severity or importance of the crimes they committed but based on personal or political animus towards the accused." I see no difference in principle between that and choosing not to enforce the law out of political animus toward the law itself. Both are bad faith refusals to see that the laws be executed, and thus violate the Constitution. The only alternative to that view, it seems to me, is to read the word "faithfully" out of the Clause and thus allow the President unlimited authority to choose which laws to enforce and which to disregard, based on his own preferences. And that is the one thing the Clause plainly forbids.
Update 2: I won't belabor the point except to say that Prof. Somin just keeps begging the question by saying that the President violates the Take Care Clause when he acts in ways that are "not...law enforcement objective[s] at all, but a matter of personal antagonism between the executive and the defendant"--since the refusal to prosecute for similarly non-enforcement objectives is identically unconstitutional. Non-enforcement out of personal approval of the defendant. Or his conduct is just the other side of the same unconstitutional coin. Prof. Somin can't say that one is unconstitutional without admitting the other is, too.
A couple years ago, the Descendants soundtrack introduced me to the “slack key” guitar style native to Hawai‘i. A lot of my friends are unfamiliar with this beautiful, beguiling, unique musical style, so I thought I’d share a few of my favorites.
The story is that the guitar was introduced to Hawai‘i by Spanish and Portugese sailors in the 19th century. But the Hawaiians being very creative musical types started fiddling with the tunings and the finger-picking style they’d picked up from the Flamenco players, and adapting to it the styles of the hula and other influences. The result was a characteristically Hawaiian melting pot style, that can be as fun and lively as an American folk tune, or as mournful as a European ballad, all with a distinctively Hawaiian flavor.
I joined our friends on the Armstrong & Getty Show this morning to talk about PLF's recent victories in the Utah prairie dog case and the SDS Family Trust case against the Coastal Commission, as well as our ongoing challenges to Obamacare. If you missed it, you can listen to the podcast here.
I was on The Indepenents tonight discussing some of the spooky Hallowe'en-themed law out there. I mentioned the case of Stambovsky v. Ackley, the 1991 decision from New York's Appellate Division which held a house sale invalid because the seller did not disclose that the house was "haunted." The house had a reputation in the neighborhood for being haunted, and the court, in an opinion full of wry humor, held that since the seller had long claimed the house was haunted, she was not allowed to claim now that it was not. She was, in the legal terminology, "estopped" from denying it was haunted. That meant, as the court concluded, "as a matter of law, the house is haunted." You can read the decision here.
I also mentioned cases involving the free speech rights of psychics. In Spiritual Psychic Science Church v. City of Azusa (1985), the California Supreme Court struck down an ordinance that prohibited fortune-telling, on the grounds that it violated the First Amendment. The court specifically held that it was not "commercial speech," and that although the government can prohibit fraud, it could not just impose a blanket ban against fortune telling. But in Nike v. Kasky (2002), the California Supreme Court expanded the definition of commmercial speech so broadly, that fortune telling is now arguably commercial speech, and might be subject to censorship. I don't think that would or should fly, and in fact the Eighth Circuit held in Argello v. City of Lincoln that fortune telling is fully protected free speech. But that's just why that Kasky decision is so awful.
A friend recently asked what we God-damned atheists think or do at the thought of impending death. I answered, as master Epicurus teaches us, that death is nothing to us. But this video from the British Humanist Association answers the question more beautifully.
Today’s Google Doodle celebrates Jonas Salk, who developed the first vaccine for polio in 1954, and helped essentially eradicate the disease in the civilized world. Salk’s vaccine is not the one most commonly used today; that was developed by Salk’s great rival, Albert Sabin. The difference between the two is that while Sabin’s vaccine is a “weakened virus” vaccine, Salk’s was a “killed virus” vaccine—one in which the virus has been rendered completely inert. Vaccines work by prepping the human immune system to create antibodies; thus one takes a little bit of the disease, or something like it but less virulent, to make the body resist the full blown version. Edward Jenner gave his patients cowpox to make them immune to smallpox, for example. And most vaccines today are weakened virus vaccines—ones in which the virus is crippled, but still alive, when introduced into the patient.
In Salk’s eyes, the advantage to a killed virus vaccine is that it won’t transmit the disease itself, whereas a certain fraction of people given a weakened virus will come down with it. But there are a number of disadvantages. As Jane Smith explains in her masterful book, Patenting The Sun, killed virus vaccines are often less effective, and require booster shots. And in one tragic early incident, a batch of the Salk vaccine was prepared incorrectly, and the virus was not completely killed before being given to patients. Worse yet, the original Salk vaccine was not effective against one type of polio (although this was later fixed). And people given the Salk vaccine can still transmit the disease.
None of these complications are true of the Sabin vaccine, which is not only safe and effective, but targets the intestinal areas where polio first really develops. The Sabin vaccine requires no boosters—it’s permanently effective. Not to mention, the Sabin vaccine can be given orally, with a drop on a sugarcube, while the Salk vaccine required scary needles. Yet Salk remained all his life convinced that killed virus vaccines were preferable.
Salk was indisputably a hero. Polio epidemics regularly claimed tens of thousands of children in the United States; in 1952, there were some 58,000 cases. Today, a child in the developed world is more likely to be struck by lightning than by polio. But while Salk deserves great credit for his achievement, it’s a shame that it tends to overshadow the accomplishment of Albert Sabin, also a great scientist, whose discoveries are really the basis for polio eradication efforts today. The two men together deserve credit for saving countless lives.
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.