The University of Chicago Law School Faculty Blog

Three Views of National Security and the Constitution

Just as Gaul was divided into three parts, so too judges and constitutional lawyers interested in national security tend to fall into one of three broad camps:

(1) Executive unilateralists, who believe that courts and legislatures do and should defer heavily to the executive during wars and emergencies. Our book, Terror in the Balance, stakes out this view, which has only a few other defenders in the legal academy.

(2) Democratic process theorists, who are most worried about the separation of legislative and executive powers, and who want above all that executive action during emergencies should be authorized by Congress. (A variant of this view is Bruce Ackerman’s proposal for a “framework statute,” to be enacted before the next attack, that would structure executive emergency powers). For democratic theorists, the central text is Justice Robert Jackson’s concurrence in the Steel Seizure case, which suggests that the president’s powers are at their high-water mark when he acts with congressional approval, and at low ebb when he acts against congressional instructions.

(3) Civil libertarians, who typically want courts to examine emergency action to ensure that it does not violate constitutional rights.

The Democratic Party and the War on Terror

Now that the Democratic Party has taken control of Congress, will it cut back on President Bush’s aggressive war on terror strategy, and restore Americans’ civil liberties? The answer appears to be “No.”

The Democratic Party’s 6-Point Plan for 2006 lists the following items: Honest Leadership & Open Government; Real Security; Energy Independence; Economic Prosperity & Educational Excellence; A Healthcare System that Works for Everyone; and Retirement Security. Under Real Security, one finds:

Democrats are unwavering in our commitment to keep our nation safe. For Democrats, homeland security begins with hometown security. That’s why we led the fight to create the Department of Homeland Security and continue to fight to ensure that our ports, nuclear and chemical plants, and other sensitive facilities are secured against attack and support increased funding for our first responders and programs like the COPS program so we keep our communities safe. We want to close the remaining gaps in our security by enacting the 9/11 Commission recommendations.

US Involvement in the Darfur Conflict

On Wednesday, November 15, 2006, the Earl B. Dickerson Chapter of the Black Law Student Association at the University of Chicago Law School hosted a discussion on the merits of US involvement in the Darfur conflict.   Eric Posner, Kirkland and Ellis Professor of Law at the University of Chicago Law School, Jide Nzelibe, Assistant Professor of Law at Northwestern University School of Law, and Matthew Lippman, Professor at the University of Illinois, Chicago, discussed US involvement in Darfur within the legal framework governing international humanitarian intervention. You can listen to the panel discussion here.

Immigration Law Reform

A lively and interesting debate on immigration law reform has dispiritingly concluded with a new law that provides for, but does not fund, the construction of a wall along a portion of the border with Mexico.  Left unenacted were proposals to establish a guest worker program, to extend criminal penalties for unlawful presence on U.S. territory, to strengthen sanctions for employers who hire undocumented workers, and to amnesty noncitizens who have illegally lived and worked in the U.S. for many years.  Much of the debate has proceeded as though the answers to these questions depended on first principles.  We should either welcome immigrants or close our borders.  If we want to welcome them, then we should (for example) not create criminal penalties for unlawful presence.  If we want to close our borders, then we should not issue amnesties.  But this is all mistaken.  Whatever the right first principles, they do not cut between such low level policy alternatives.  A liberal immigration policy could welcome many people by raising quotas or reducing admission criteria while still criminalizing those who enter unlawfully; a strict immigration policy could simply reduce the quotas while offering an amnesty to those who are already here and cannot realistically be expelled.

Good immigration law and policy at the level being debated today depends much more on second-order issues of institutional design than first-order principles.  Good law depends on such empirical and institutional issues as whether it is cheaper to stop people at the border or pick them up in the interior; whether the type of immigrant we want to admit can be readily determined at the border (for example, academic credentials and work experience) or is better determined after a few years living in this country (for example, degree of assimilability); how important it is for immigrants to learn English and become assimilated; whether the government needs flexibility to remove people in light of changed economic and security circumstances; and so forth.

For a paper that provides a theoretical framework for addressing these issues, drawing on the economic literature on job market signaling, and the law and economics literature on ex ante versus ex post adjudication, go here.  The abstract is below.

The Humanitarian War Myth

More than 40,000 Iraqi civilians have been killed since the American-led invasion of Iraq in 2003, and the rate at which civilians die has been increasing in recent months. Many thousands of innocent Iraqis have been detained, and some have been abused by American troops. Many others have been tortured or killed by Iraqi police. Basic services have been lacking in large portions of the country for three years. Civil war looms, conjuring memories of the 16-year Lebanese civil war, during which more than 100,000 people were killed out of a population of fewer than 4 million.

Yet, if the United Nations were to have its way, the Iraqi debacle would be just the first in a series of such wars -- the effect of a well-meaning but ill-considered effort to make humanitarian intervention obligatory as a matter of international law. Today Iraq, tomorrow Darfur.

The Credible Executive

The recent riots in Hungary apparently occurred because the prime minister admitted that he (as well as other members of the governing elite) lied to the public about the health of the economy.  It is an odd feature of public life that everyone seems to think that politicians lie and yet are surprised when their lies are exposed (e.g., Clinton).  Extreme suspicion about the president’s truthfulness can undermine his ability to act, and even the super-powerful American presidency can be undermined by public distrust as virtually every recent president has experienced (Johnson, Nixon, Reagan and Iran-Contra, Bush I and “no new taxes,” Clinton, Bush II and WMD).  Is there any way for the president to enhance his credibility so that the public will support his policies and enable him to get things done?  In this paper, Adrian Vermeule and I discuss some mechanisms.  The abstract is below.

Google's For-Profit Charity

In a rare instance of real world experience confirming an academic hypothesis, Google has announced that it is setting up a for-profit charity.  In this paper, which I discussed a few days ago (below), my coauthor and I argue that the for-profit charity might be a sensible, underexploited institution.  In the course of the discussion, we ask why, if we are correct, there are no for-profit charities and we provide the obvious answer that the reason is tax discrimination.  But Google’s plan suggest that the advantages of the for-profit form are strong enough to outweigh the tax disadvantages.  The next step is for the government to recognize that tax discrimination on the basis of corporate form is unwise and to change the law.

For-Profit Charities

The recent Red Cross scandal is a reminder that charitable nonprofit organizations sometimes act poorly.  Meanwhile, many for-profit commercial organizations try to do good—by helping poor coffee growers, or providing hurricane relief, or supporting schools.  Yet the good-doing nonprofits enjoy tax benefits denied to the good-doing for-profits.  Why should this be the case?  It turns out that there is no reason for discriminating against commercial operations that provide charitable benefits.  Indeed, the incentive structures of a profit-making business could be used to enhance the efficiency of charities.  Hence the case for the “for-profit charity.”  Click here for the argument (an abstract of the paper is below).

Abstract:     
Nonprofit firms may not distribute profits to owners but instead must retain them or reinvest them. Nonprofits that are “charitable organizations” under Section 501(c)(3) of the tax code may receive donations from individuals who are allowed to deduct their donations from their income for tax purposes. We argue that the law should not link tax benefits to corporate form in this way. There may be good arguments for recognizing the nonprofit form and good arguments for providing tax subsidies to charities or donors to charities, but there is no good argument for making those tax subsidies available only to charities that adopt the nonprofit form. Consequently, the “for-profit charity” may well be a desirable institution. Currently, no such entity exists, but the reason is surely discriminatory tax treatment; the charitable activities of many commercial firms suggest that in the absence of discriminatory tax treatment for-profit charities would flourish. Current tax benefits for charitable nonprofits should be extended to for-profit charities, and to the charitable activities of for-profit commercial firms.

Hamdan and Common Article 3

Apply the Golden Rule to al Qaeda?

By ERIC POSNER
July 15, 2006; Page A9
Wall Street Journal

When the Bush administration claimed in 2002 that Common Article 3 of the Geneva Conventions did not apply to al Qaeda, it advanced a legal argument -- but the decision was really based on a common-sense policy judgment. The U.S. obtained no advantage from obeying Article 3, because al Qaeda itself clearly had no interest in complying either. However we treat them, they will torture and behead our soldiers.

The legal argument was that the very terms of Common Article 3, which bans various kinds of ambiguously defined inhumane treatment, apply only to conflicts "not of an international character," and the conflict with al Qaeda was international. Since the Supreme Court rejected this argument in Hamdan, the Bush administration now says that, as a matter of law, common Article 3 does apply to al Qaeda.

Chevronizing Foreign Relations Law

Last week the Court of Appeals for the Eleventh Circuit ruled that the act of state doctrine prevents former owners of property in Cuba from recovering damages from Club Med, which operated a resort on that property with the permission of the Cuban government.  Cuba had expropriated the property from the family in 1959.  Florida law would ordinarily permit plaintiffs to recover on theories of trespass and unjust enrichment, but under the act of state doctrine Cuba’s expropriation of the property must be considered valid for purposes of the dispute.  (A brief discussion is here.)