Brookings: Topics - U.S. Constitutional Issues

Supreme Court Finds the Use of a Drug-Sniffing Dog to Investigate a Home Unconstitutional

John Villasenor — Wed, 27 Mar 2013 15:27:00 -0400

On March 26, the Supreme Court issued its decision [PDF] in Florida v. Jardines, a case involving police use of a drug-sniffing dog on the front porch of a home to detect marijuana growing inside. In a 5-4 opinion delivered by Justice Scalia, the Court held that “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

In 2006, following a tip regarding marijuana being grown in a house, Miami police brought a drug-sniffing dog to the front porch. After the dog indicated the presence of drugs, police obtained a warrant, found marijuana in the house, and arrested Joelis Jardines. At trial, Jardines claimed that the use of the drug-sniffing dog was a Fourth Amendment violation. After a trial court and then the Florida Supreme Court agreed, Florida petitioned and was then granted a Supreme Court review, and oral arguments were heard in October 2012.

The Court’s opinion in Jardines is narrowly crafted, focusing on the government’s physical intrusion into the constitutionally protected area immediately surrounding the home (called the “curtilage”) for the purposes of gathering evidence. The Court acknowledged the existence of an implicit license permitting visitors to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” “Complying with the terms of that traditional invitation,” explained the Court, “does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” However, there is no implicit license to introduce “a trained police dog to explore the area around the home in hopes of discovering incriminating evidence.” Since the officers were able to learn that marijuana was being grown in the home only by “physically intruding on Jardines’ property to gather evidence,” the search was unconstitutional in the absence of a warrant.

The majority opinion explicitly declined to consider whether the officers’ search of Jardines’ home violated his reasonable expectation of privacy; it was sufficient to find a constitutional violation based on what the Court characterized as “the traditional property-based understanding of the Fourth Amendment.” A concurring opinion from Justice Kagan and joined by Justices Ginsburg and Sotomayor went further. “Yes,” Justice Kagan wrote, the officers’ actions constituted a trespass. “Was it also an invasion of privacy? Yes, that as well.”

In some respects, the Jardines decision echoes the Court’s January 2012 decision in United States v. Jones [PDF], the GPS-tracking case in which Justice Scalia’s majority opinion also found a Fourth Amendment violation in the act of trespassing—in that case with respect to the physical intrusion involved in placing a GPS receiver on a car without a valid warrant. In Jones there was also a concurrence (two, in fact) suggesting that the information gathered by the government violated a reasonable expectation of privacy.

As technology continues to advance, it will become harder to rely on a property-focused view of the Fourth Amendment when assessing what constitutes a “search.” In fact it is actually the 2001 Kyllo v. United States case, and not this week’s ruling in Jardines or last year’s decision in Jones, that is in some ways more indicative of the types of complex questions the Court will grapple with in future privacy cases. In Kyllo, the Court considered the government’s use of a thermal imager in a car on a public street to detect the interior temperature of a home. There was no trespass in Kyllo, leaving the Court no choice but to evaluate the constitutionality of the government’s actions on the basis of what the technology itself could reveal. When the government “uses a device that is not in general public use,” the Court held in Kyllo, “to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Suppose that the police in Jardines had used the drug-sniffing dog—or, for that matter, an inanimate sensor—from the vantage point of a public sidewalk in front of the house? The majority opinion in Jardines doesn’t address this scenario. Justice Kagan and the two justices who joined her concurrence considered a trained drug-detection dog to be a device not in general public use, and on those grounds would have found its use unconstitutional in light of Kyllo. By contrast, Justice Alito and the three other dissenting justices disagreed that Kyllo was applicable in Jardines, noting that a dog is neither a new form of technology nor a device.

Technology is making it increasingly easy to access information that most of us would consider private without physically trespassing on private property. Mobile devices and apps, smart meters, and Internet histories can convey enormous amounts of information about activities both within and outside a home, all of which can potentially be accessed by third parties who never set foot in a home or its surroundings. Some of the most pressing privacy questions that will land at the Supreme Court’s feet in future years will involve exactly this sort of data, collected using technologies that are in general public use—and therefore outside the scope of the holding in Kyllo. When that happens, the Court will face the unenviable task of determining what, in today’s day and age, constitutes a reasonable expectation of privacy in light of technologies that are both highly sophisticated and widely used.

Authors

John Villasenor

Publication: Forbes

Strangeness at Guantanamo

Paul R. Pillar — Tue, 29 Jan 2013 00:00:00 -0500

Editor's note: This article was originally published by The National Interest.

During a hearing Monday to consider pre-trial motions before the military tribunal at Guantanamo that is handling the case of Khalid Sheik Mohammed and four other defendants charged with perpetrating the 9/11 attacks, the audio and video feeds that run from the courtroom to media rooms and are the only way for the outside world to follow the proceedings were mysteriously interrupted for several minutes. No one who is saying anything to the outside world seems to know the reason for the interruption. The colonel who is the presiding judge seemed not to know on Monday. A member of the prosecution team said she does know but, with the cameras and microphones back on, would not explain. The following day the judge seemed satisfied with whatever explanation he apparently got, but he wasn't talking either.

The mysterious electronic gap is a fitting sample of much that is strange about the detention facility at Guantanamo and what goes on there. Part of the strangeness is about Guantanamo itself; other parts are about things that are centered at, or symbolized by Guantanamo, including the basis for indefinite detention of people suspected of involvement in terrorism and the military tribunal system used to try some of them.

What is odd about the facility itself is its anomalous legal status, being on a U.S. military base with a long-term lease from Cuba. Decision-makers in the George W. Bush administration selected the place to establish a detention center that would be as much as possible out of the reach of anyone's law. The Supreme Court has frustrated whatever hope there may have been to keep it entirely outside the reach of the law, but the anomaly of the place continues to be a basis for the legal uncertainty of much of what goes on there.

One of the latest of the many legal uncertainties about the military tribunal system concerns whether it can be used to try defendants for anything other than crimes of war. There is disagreement about whether prosecutors can bring to a tribunal conspiracy charges of the sort that can certainly be brought in a civilian court. The Department of Justice says they can; the military judge in charge of the tribunals says they can't (while adding that this very disagreement demonstrates the tribunals' independence and by implication their fairness). Besides the uncertainty, there is an irony given how members of Congress who have forced the handling of terrorism cases out of the civilian courts and into military tribunals may have thought that this tough handling of the subject as “war” would mean greater power and freedom to punish terrorists without prosecutors' jobs being complicated by all the rules of evidence and whatnot that civilian courts have. With regard to something like the use of conspiracy charges, the move to military tribunals means less, not more, flexibility in what prosecutors can do.

Also in the news this week is the administration's announcement that the State Department official who has been charged with negotiating new custody arrangements for Guantanamo prisoners is being reassigned without being replaced. This move is being interpreted as a tacit admission by the Obama administration that it will not realize its goal of closing the detention facility at Guantanamo, although officially the administration says that is still the goal. Failure to meet that goal is partly due to facing the reality of each detainee's case being different and many of them being complicated. The failure is in large part due again to Congress, which has restricted movement of detainees both to the United States and to some of the key foreign countries. Thus another irony: the actions of those who think in terms of a “war on terror” with a beginning and an end have laid the basis for a supposedly temporary detention system that will have no end.

President Obama recently appointed former prosecutor Mary Jo White to head the Securities and Exchange Commission. As U.S. attorney for the Southern District of New York, White's office successfully prosecuted several of the highest profile terrorism cases—the experience that most refutes some of the chief arguments made in favor of reliance on the military tribunal system. Although at the SEC White will be a regulator rather than a prosecutor, the administration's evident hope and message in making this appointment is that Wall Street crooks will face effective punishment. Maybe the United States will handle the cases of such crooks with greater rationality, consistency and effectiveness than it seems to be handling the cases of suspected terrorists at Guantanamo.

Authors

Paul R. Pillar

Publication: The National Interest

Image Source: © Bob Strong / Reuters

Can Copyrighted Works Purchased Abroad Be Resold In the United States?

John Villasenor — Sun, 21 Oct 2012 00:00:00 -0400

Next week, the Supreme Court is set to hear arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case that will have fundamental consequences for the global flow of books, music, movies, and other copyrighted material.

Foreign students studying in the U.S. have long known that textbooks can often be purchased much less expensively in their home countries. Supap Kirtsaeng, who originally came to the United States from Thailand as a student in 1997, built a business around this arbitrage opportunity, asking family members in Thailand to legally purchase textbooks and ship them to the United States, where he then resold them for a profit on sites such as eBay. In September 2008, publisher John Wiley & Sons, Inc. filed a complaint in a New York federal district court asserting, among other things, that Kirtsaeng’s actions constituted copyright infringement. A jury agreed, imposing damages of $75,000 for each infringed work. Kirtsaeng appealed to the Second Circuit, which affirmed the district court’s decision, and then to the Supreme Court, which will hear oral arguments on October 29.

Common sense would hold that a person who legally acquires copyrighted material such as a book or music CD generally has the right to resell it at a later time. And indeed, under the “first sale” doctrine, a person in possession of a copy of a work that was “lawfully made under this title” [Title 17 of the U.S. Code, which contains U.S. copyright law] “is entitled, without the authority of the copyright owner, to sell or otherwise dispose of” it. For instance, if you legally purchase a book or music CD, the owners of the associated copyrights can’t prevent you from later selling it at a garage sale or donating it to a library.

Or can they? If the product was manufactured and purchased overseas, the answer isn’t clear. The uncertainty arises due to the interpretation of the phrase “lawfully made under this title” and to a separate statute that prohibits the importation into the United States, “without the authority of the owner of copyright,” of copies of a work “acquired outside the United States.” Thus, a person who legally purchases a copyrighted work abroad and wants to resell it domestically can be caught between two ambiguous and potentially contradictory provisions of copyright law. Does the first sale doctrine provide the right to resell the work? Or is that right foreclosed because exercising it would of necessity involve a prohibited importation?

Unsurprisingly, the jurisprudence on this issue is complex and sometimes contradictory. In the 1998 Quality King decision, the Supreme Court considered hair care products bearing copyrighted labels that had been manufactured in the U.S., sold abroad and subsequently re-imported and sold without authorization in the U.S. The “whole point of the first sale doctrine,” wrote the Court in Quality King, “is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.” But is that always true, or does it only hold when the item was manufactured in the United States?

In affirming the copyright infringement judgment against Kirtsaeng, the Second Circuit held in 2011 that “the first sale doctrine does not apply to copies manufactured outside of the United States.” Taken to its logical extreme, this interpretation could provide American companies that manufacture overseas with an extraordinary level of control over the secondary market for their products. The Third Circuit, by contrast, concluded [PDF] in a (pre-Quality King) 1988 ruling involving product label copyrights that “a first sale by the copyright owner extinguishes any later right to control importation of those copies.” Aspects of this tension in U.S. copyright law were also considered – though not fully resolved – by the Ninth Circuit in 1996 and 2008.

Kirtsaeng has attracted a large number of amicus briefs, with the American Library Association, Costco, eBay, Goodwill Industries International, Google, the National Association of Chain Drug Stores, and a group of leading American art museums backing Kirtsaeng. Costco, for example, writes [PDF] that the “first-sale doctrine plays an important role in Costco’s ability” to sell “genuine brand-name merchandise to its members at prices lower than its competitors,” and that Wiley’s position “that copies made abroad would have enjoyed significantly greater copyright protection than those made at home is inconceivable.” Goodwill argues [PDF] that the Second Circuit’s Kirtsaeng decision, if affirmed by the Supreme Court, could have “a catastrophic effect on the viability of the secondary market and, consequently, on Goodwill’s ability to provide needed community-based services.”

The American Bar Association, the American Intellectual Property Law Association (AIPLA), the Motion Picture Association of America (MPAA), and the Recording Industry Association of America (RIAA) have filed briefs supporting Wiley. The AIPLA argues [PDF] that Kirtsaeng infringed Wiley’s copyrights by the act of importing the textbooks, and that the first-sale defense regarding their subsequent sale is thus irrelevant. According to [PDF] the MPAA and RIAA, the motion picture and music industries “rely on the ability to divide rights across markets and to plan for and control the timing and manner of the release of their works in different markets around the world.”

One of the ironies of Kirtsaeng is that it involves shipping copyrighted works across an ocean in paper form, an approach more typical of the last century than the present one. While enormous amounts of copyrighted material still travels in shipping containers – think, for example, of the software included in consumer electronics products and automobiles – a growing fraction of written, audio, and audiovisual content is transported by fiber optic cable and stored in the cloud. The concepts of location and importation are thus more complex than in the past. And, with appropriate updating of copyright and licensing frameworks, cross-border flows of copyrighted material can be an opportunity for copyright owners, not a threat.

In the immediate term, however, the question is how to handle Kirtsaeng in the context of current American copyright law. Congress could not have anticipated all of the complexities of today’s copyright landscape when it enacted the Copyright Act of 1976. But it almost certainly wouldn’t have wanted the consequences that could arise if the Second Circuit’s Kirtsaeng decision is affirmed.

Authors

John Villasenor

Publication: Forbes

Image Source: © Jose Luis Magaua / Reuters

Will Drones Outflank the Fourth Amendment?

John Villasenor — Thu, 20 Sep 2012 00:00:00 -0400

In a word, no. The Fourth Amendment, which provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” has been a cornerstone of privacy from government intrusion since 1791. It has served us well across more than two centuries of technology advances, and there is no reason to expect that it will suddenly lose its protective power when domestic use of unmanned aircraft becomes common.

In February 2012, President Obama signed an FAA bill into law that provides for the integration of “drones,” or more properly, unmanned aerial vehicles (UAVs), into the nation’s airspace. This has generated legitimate concerns that UAVs could be used by the government in ways that infringe privacy rights, particularly in light of three 1980s-era Supreme Court decisions that found no Fourth Amendment violation in warrantless observations from manned government aircraft.

In 1986, the Court ruled in California v. Ciraolo that police officers who identified marijuana plants in a suspect’s backyard from a plane at an altitude of 1000 feet did not violate the Fourth Amendment. Three years later in Florida v. Riley, a majority of justices reached the same conclusion regarding observations of marijuana plants in a greenhouse from a helicopter at 400 feet. And in Dow Chemical Co. v. United States, a 1986 decision addressing government use of a commercial mapping camera to take aerial photographs of an industrial facility (as opposed to the “curtilage” of home considered in Ciraolo and Riley), the Court ruled in favor of the government.

These decisions do indeed indicate that government investigators will sometimes be able to use UAVs without a warrant. However, that does not mean that all government UAV observations, no matter how invasive, will be constitutional. In fact, a careful review of the opinions in these and other relevant Supreme Court cases suggests that the Fourth Amendment may provide significantly more protection than is often assumed.

In Ciraolo, for example, the Court held that the “Fourth Amendment simply does not require the police traveling in the public airways at this altitude [1000 feet] to obtain a warrant in order to observe what is visible to the naked eye.” A UAV equipped with an imaging system capturing much more detail than could the human eye would fall outside the scope of this holding. So, too, would one operating outside of public navigable airspace, though defining exactly where that lies for UAVs can be complex.

In Riley, which also involved naked eye observations, Justice White and the three other justices who joined his opinion found no Fourth Amendment violation in part because “no intimate details connected with the use of the home or curtilage were observed.” Justice O’Connor’s Riley concurrence emphasized that reasonable expectations of privacy, and not “compliance with FAA regulations alone,” should determine the constitutionality of aerial observations.

The Dow Chemical Court concluded that “the open areas of an industrial plant complex are not analogous to the ‘curtilage’ of a dwelling for purposes of aerial surveillance.” Yet, even under that much lower privacy standard, the Court implied the existence of some constitutional bounds, noting that “the photographs here are not so revealing of intimate details as to raise constitutional concerns.”

Several more recent Supreme Court decisions in non-aviation cases are also relevant to UAV privacy. In 2001, the Court ruled against the government in a case involving use of a ground-based thermal imager to detect an indoor marijuana growing operation by measuring the temperature of the roof and outside wall of a house. Writing for the Court in Kyllo v. United States, Justice Scalia expressed concern that allowing the government to freely collect any information “emanating from a house” would put people “at the mercy of advancing technology – including imaging technology that could discern all human activity in the home.” The rule adopted by the Kyllo Court provides that when “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

As has often been noted (including in Justice Stevens’ dissent in Kyllo), the “not in general public use” restriction can weaken with time as a formerly rare technology becomes common. However, Kyllo stops well short of endorsing the constitutionality of using a commonly available technology to observe a home. As Justice Scalia wrote in response to the dissent on this specific point, the thermal imaging in Kyllo was not “routine.” The Kyllo Court did not need to address the question of observations using routine technology, and specifically declined to do so.

Under a balanced reading of Kyllo, government use of a UAV to reveal “details of the home that would previously have been unknowable without physical intrusion” would be unconstitutional today. Ten years from now, when UAVs will be common, that still may be the case – but that conclusion will need to come from a ruling other than Kyllo.

Most recently, the Supreme Court found against the government in United States v. Jones [PDF], a January 2012 decision that addressed the constitutionality of affixing a GPS tracking device to a vehicle without a valid warrant. While the basis for the decision was narrow – the Court found a Fourth Amendment violation in the physical trespass that occurred during the placement of the GPS device on the vehicle – the aspects of the Jones opinions addressing extended surveillance are directly relevant to long-endurance UAVs.

The opinion of the Court, delivered by Justice Scalia, stated that extended electronic surveillance “without an accompanying trespass” may be unconstitutional, but noted that the “present case does not require us to answer that question.” In a concurrence, Justice Alito wrote that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” And in a separate concurrence, Justice Sotomayor noted the “existence of a reasonable societal expectation of privacy in the sum of one’s public movements.” Thus, the justices are on record recognizing the constitutionality question raised by new technologies enabling extended surveillance, though they deferred its resolution to another day.

In the aggregate, these rulings provide cause for optimism that, with respect to government UAV observations, the Fourth Amendment will be reasonably protective. Whether it will be sufficiently protective is a different question, and one well worth attention. But when engaging in that discussion, it is important not to lose sight of the substantial constitutional foundation we already have.

Authors

John Villasenor

Publication: Forbes

Image Source: © Reuters Photographer / Reuters

Learning from James Q. Wilson

Pietro S. Nivola — Fri, 07 Sep 2012 12:00:00 -0400

When James Quinn Wilson passed away in March, he left a formidable legacy for policymakers in need of guidance. But at least as notable was his influence on a generation of scholars. He was not just an exceptional thinker but an exceptional teacher as well.

As one of his students — who became a colleague and friend — I learned three lessons from him above all. And in classic Wilson style, they were straightforward: First, be sure to get the facts before opining. Second, be practical. Recognize that the root causes of many problems in society are elusive, and that public policy has to make do regardless. But third, be prudent when proposing solutions — or "reforms" — for they can often make matters worse.

These exhortations may now sound like clichés to any self-respecting conservative, at least until we recall that their force, and in some cases even their genesis, lie in the teachings of James Q. Wilson. And our appreciation for those teachings only grows when we fully reckon how often they are ignored by today's would-be reformers, across the political spectrum.

THE EMPIRICIST

It is no secret that Wilson's politics became increasingly conservative in his later years. Originally a registered Democrat, he died an iconic figure in Republican circles. But perhaps less noticed is that, throughout his illustrious career, he did not do business the way either the left or the right often does in important policy debates.

Economic policy offered a recent illustration. When the Democratic majority in Congress managed to pass a gargantuan stimulus package in February 2009, the Obama administration confidently predicted that it would quickly generate hundreds of thousands of jobs. With equal conviction, Republican lawmakers, all of whom had voted against the legislation in the House, predicted that the stimulus would fail. Even now it remains practically de rigueur for leading GOP politicians to denounce the stimulus and proclaim that it "didn't work."

This war of tendentious declaratives, unsupported by sound science, was not the kind of dispute into which James Q Wilson was eager to enter. He was no fan of the stimulus bill, but he also recognized that the legislation was composed of many moving parts, and so ultimately deemed it unserious to presuppose that none could conceivably have a desirable impact. Professionally steeped in evidence-based reasoning, he naturally declined to indulge in the dubious exercise of forecasting precisely the number of jobs likely to be saved or created, but he likewise resisted sweeping assertions about the utter futility of the entire countercyclical effort. Instead, in an essay I co-authored with him for the Hoover Institution in 2010, he came soberly to this sensible formulation:

"It is quite plausible that the stimulus was one of the actions of government that helped prevent the severe economic slump from worsening. To answer scientifically, however, whether a particular anti-recessionary policy succeeded, there would have to be a controlled test examining a series of identical recessions, and somehow applying exactly the same policy to some but not others. Then we would have a better idea of what works.Obviously, such a test is impossible."

Would that the polemicists in Congress, on the campaign trail, and in the media might reason this way.

Or consider the ceaseless partisan strife over the role of tax reductions in spurring economic growth. Except grudgingly and in the throes of a crushing recession, the left robotically dismisses the possibility that higher marginal tax rates could stifle growth. The right, meanwhile, ritually presumes that lowering such rates always begets prosperity. To be sure, Wilson worried that raising taxes risks letting politicians off the hook when it comes to undertaking essential retrenchment in unsustainable government spending, and he strongly suspected that a wider tax base (with fewer loopholes) but lower rates would be economically productive. Yet he was not dogmatic in the least.

He knew that reputable economists continue to debate the relative countercyclical advantages of tax relief versus spending programs. Ever the empiricist, Wilson also agreed that the literature favoring tax-cutting by itself was far from sufficient, let alone conclusive. Much depends on where the rates are to begin with. Tax cuts are a no-brainer when top marginal rates reach absurd levels. (It is likely that stagflation in the 1970s, for instance, could have been alleviated in part by slashing the top tax rate, which remained above 70% at the time.)

The debate over taxation these days is, of course, doubly knotted by concerns about equity. In his State of the Union address last January, President Obama proposed on grounds of basic fair play the equivalent of a substantial alternative minimum tax for millionaires. Wilson was too sophisticated a thinker to be comfortable with so simple a formula for distributive justice. One reason, as he argued in an op-ed in the Washington Post shortly before his death, was that, as a practical matter, soaking the rich hardly guarantees better living standards for the poor. More fundamentally, fairness really is a more capacious concept. In his magisterial 1993 book The Moral Sense, Wilson parsed the concept of fairness as Aristotle did: Determining fair shares among people entails dividing things in proportion to relative merit, including a person's effort, skill, and deeds. It may seem intuitively obvious that Warren Buffett should have to pay at least the same tax rate as his secretary, but whether that "rule" is truly fair depends on whether the deeds, skills, and efforts of Buffett and his secretary are commensurate. A moment's reflection would keep a thinking person from jumping to that conclusion.

And yet Wilson would also see the intuitive appeal of a simpler notion of fairness. Citing evidence from developmental psychology, he had taken pains to emphasize in The Moral Sense that an appreciation of fairness, in its simplest forms, is evident in essentially every human being at an early stage. Even elementary-school children give it "a fairly definite meaning," he wrote. More than a few contemporary conservatives would do well to pause over such considerations before reflexively brushing aside Obama's brief as mere "class warfare."

The day after Wilson died, the New York Times carried a front-page story about him. It was mostly devoted to his "broken windows" theory of law enforcement. That theory is now so famous that it needs little explication in these pages. Suffice it to say that the community policing programs that helped reduce crime rates in New York, Los Angeles, Boston, and other major cities were inspired in no small part by an article Wilson co-wrote with George L. Kelling in the Atlantic Monthly in 1982. Wilson and Kelling explained how the breakdown of social order in neighborhoods encourages criminal behavior. What may begin with the mere presence of, say, busted windows, commonly abetted by tolerance of minor acts of vandalism or delinquency, may end with far more serious crimes. By signaling indifference or complacency, a permissive environment ultimately breeds greater violence.

This argument is commonly described as a "theory" of Wilson and Kelling's, but it was not just a theory, in the sense of a mere supposition—plausible but not empirically adduced. It was derived in large part from work Wilson had begun to do with Richard Herrnstein, the prominent Harvard psychologist with whom he would eventually publish Crime and Human Nature (1985), and from systematic observation of realities on the ground. Wilson had logged long periods in the field, studying law-enforcement officers in action in a number of cities, thereby ascertaining what works and what doesn't.

This almost anthropological form of research—accompanying police officers in their squad cars or on their beats—had yielded his book Varieties of Police Behavior (1968), which compared police operations in eight jurisdictions, and then resulted in subsequent studies (such as The Investigators, a 1978 book about the ground-level experiences of the FBI and the Drug Enforcement Agency). It allowed Wilson to build a body of evidence for his insights about the perverse social dynamics of "broken windows." Long before theorizing and rendering judgments, he had learned the facts.

THE PRAGMATIST

To stress that James Q. Wilson's policy preferences were typically drawn from extensive, objective fact-finding is not to say that he had boundless faith in the ability of the social sciences to get to the bottom of mankind's predicaments. On the contrary, Wilson was keenly aware that the underlying causes of our problems could often remain a mystery—and he recognized that policymakers would have to settle for something less than the (unknowable) whole truth. There were times, in other words, when public officials would need to address urgent challenges by exercising common sense, rather than awaiting the fruits of inconclusive sociological inquiries or holding out for the conjectural remedies emanating from those inquiries.

Amid the violent-crime wave of the 1960s and early '70s, for example, Wilson began to sense that much of what passed for policy analysis — such as the "finding" that urban poverty was at the root of the crisis, and hence that relief lay in greater expenditures for Great Society programs — raised more questions than it answered. After all, crime rates had continued to soar despite an already great investment in such programs. Accordingly, in the volume Thinking About Grime (1975), Wilson wound up taking a contrarian stance. The book argued that, inasmuch as reliable empirical data could be brought to bear on the matter, there was little to refute an intuitively compelling proposition: namely, that if acts of crime pay, more of them will be committed. It stood to reason, therefore, that if the penalties for criminal activity follow quickly and certainly, fewer crimes will be committed.

In due course, local criminal-justice systems across the land began to follow that logic—and apparently with considerable success. The great tide of crime began to ebb. Exactly how much of the change could be imputed strictly to stepped-up enforcement apart from other factors (such as the changing age profile of the population), and whether a deterrent effect resulted primarily from faster, more predictable punishment or from its greater severity, remain questions much debated. Alas, now we will never be certain what Wilson would say about all of them going forward. But it is probably safe to submit that, if he were still with us, he would be leaning toward a nuanced view: crediting the new policies he had helped to develop, but only up to a point, and approving of justice that is swift and certain but not so draconian as to degenerate into mass, long-term incarcerations. Wilson, after all, was scrupulously mindful of the limits of what is in the power of a free society to control.

While he was always aware of the limits of our knowledge, however, Wilson did not shy away from prescribing policies in areas where he felt sure-footed. Criminal justice was one, but there were others. In one of the best tributes to Wilson in the days after his death, New York Times columnist David Brooks reminded readers that Wilson's recommendations could be bold in the sphere of social policy. In a 1998 essay for The Public Interest, for instance, he advanced a range of suggestions for strengthening families. They included not only improved pre-school programs but privately operated, publicly supported group homes for troubled teenage mothers, as well as government-funded incentives for struggling single parents to take better care of their children. (The social contract for proper parenting would be analogous to the G.I. Bill of Rights: Young mothers who proved themselves better caregivers would be rewarded later with government-backed educational benefits or training.) Clearly, for Wilson, government had a part to play in ameliorating some of the country's social maladies. To the extent that his instincts could be labeled, they were decidedly more neoconservative than libertarian.

Still, a hallmark of Wilson's scholarship was a deep reluctance to offer ambitious to-do lists for government in most domains—a reluctance I experienced first-hand a decade ago. With two Brookings Institution colleagues, Henry J. Aaron and James M. Lindsay, I was editing a book of essays immodestly titled Agenda for the Nation. Over the years, Brookings had published earlier volumes by that title, and Wilson had contributed to some of them. We editors felt that his wisdom was especially needed for the new edition, since it would be published amid the continuing aftershocks of 9/11 and the many bureaucratic failures that had become apparent in the wake of the attacks.

Wilson duly agreed to author a chapter, but to our disappointment he steadfastly refused to offer any trace of a possible agenda (which was, after all, the plainly stated purpose of the book). Instead, he simply expressed confidence in the resilience of the country's constitutional institutions in times of crisis. "I happen to be fond of what we have here," he wrote, "for it is an arrangement that largely avoids sudden, ill-considered changes." He continued: "This is not to say that no refinements are warranted, though I leave it to other essays in this book to suggest what those might be."

At first, this struck me as a cop-out. How could James Q. Wilson, America's pre-eminent authority on, among many things, the behavior of bureaucratic organizations, not provide in our book advice on ways to improve the nation's counterterrorism policies and security apparatus? But looking back, I'm no longer so sure. For time has largely vindicated his judicious caution.

Wilson's conclusion was that, "in a serious crisis, the political process in this country can and does respond effectively"; no grand governmental reorganization is called for, thank you very much. Whatever else the post-9/11 years demonstrated, they generally showed again that the republic's creaky constitutional order not only remained intact but, at least on core concerns of national security, proved capable of adjusting — and, however imperfectly, acting forcefully. The adjustments that made the most difference, moreover, were, as Wilson would have expected, probably not those that mainly redrew organizational charts. Rather, they were the changes that took place in more subtle ways at less visible levels.

Wilson's abiding respect for the political institutions that the framers had deliberately designed to check, balance, and decelerate the decisions of government permeated his writings on national politics. Thousands of college students were exposed to it over decades in the pages of his perennially best-selling textbook American Government: Institutions and Policies, co-authored with another disciple, the distinguished social scientist John J. Dilulio, Jr. As a result, a lot of young citizens stood a chance of coming away from their government courses posing interesting questions, and arriving at counterintuitive answers.

An especially intriguing Wilsonian question at the moment might go as follows: By the end of last year, several major economies in the European Union were sinking back into a slump. The United Kingdom is now officially in a double-dip recession. With unemployment approaching 25%, Spain seems headed for a depression. Meanwhile, the U.S. economy was on its way to recovery through 2011, and posted a 1.9% rate of growth in the first quarter of this year. Why the difference?

A substantial part of the answer is that the American political process may in fact have done a better job digging out from the Great Recession than did those of many other advanced democracies. And the comparatively favorable performance may well have had much to do with the actions that our Madisonian framework impeded, not just the actions that it permitted. In its own muddling fashion, the U.S. government has managed to avoid (at least so far) the trap that several European countries have fallen into: initiating stringent austerity measures in a still-fragile economy.

How did this happen? In part, some countries in Europe have had less wiggle room. The bond market had already begun forcing their hands, whereas (at least so far) lucky America has been able to continue financing its deficit spending at low rates of interest. But that is not the whole story. Unlike, say, the British parliamentary model—so admired for its capacity to act decisively—our separation of powers, with its manifold opportunities for obstruction, blocked premature budget-cutting and tax increases.

James Q. Wilson might not have commended both those options equally, but he certainly would have predicted the reticence of our system to adopt either one precipitously.

THE SKEPTIC

All of which brings us to perhaps the most notable element of Wilson's approach to knowledge. One reason why he was often hesitant to reach for theoretical answers to perceived national problems was that he frequently wondered whether we could really know that they were genuine problems in the first place.

Think about the prevalent lament among commentators in Washington today—that the American political system is hopelessly "gridlocked." Well, as Professor Wilson would have urged, think again. For all the debilitating partisan rancor of the past two decades, the government still managed to adopt national health-care legislation, a torrent of measures to jump-start the economy, a far-reaching overhaul of financial regulation, a massive expansion of Medicare, a huge new cabinet department, a series of deep tax cuts, and comprehensive welfare reform—while, for good measure, waging two wars. Is such a government gridlocked? Or is it more accurately described as quite active, even overextended?

More to the point, as the record of American anti-recessionary steps in the past few years suggests, a little gridlock can be a good thing. To again borrow Wilson's words, a regime that "largely avoids sudden, ill-considered changes"—changes exemplified, in my view, by evidently untimely pro-cyclical policies like those promulgated lately in various European parliaments — seems to have its advantages.

From Wilson's perspective, additional wariness was warranted because of the strong possibility that, even when a perceived problem was real, and its solutions reasonably persuasive in theory, actually implementing those solutions could be an entirely different matter. To as keen an observer as Wilson was of public management and intergovernmental relations in this country's complex federation, there tended to be a daunting chasm between crafting programs, however well intended, and effectively putting them into practice.

There is no shortage of illustrations validating Wilson's skepticism. A case in point that he pondered at length was the American Recovery and Reinvestment Act. Yes, he conceded, there was a respectable case for a major fiscal stimulus to help reverse the economic tailspin in 2009, but what kind of stimulus? One involving elaborate projects like complex infrastructure investments, he suspected, was unlikely to provide a prompt Keynesian payoff. Other possible merits of such ventures notwithstanding, federalism and the modern regulatory state would put too much administrative and legal red tape in the way.

How did he infer this? Drawing on wide-ranging research and a shelf full of penetrating Ph.D. dissertations he had supervised over the years, Wilson had produced Bureaucracy: What Government Agencies Do and Why They Do It (1989), a treatise he graciously dedicated to the Harvard graduate students he had mentored. Still widely regarded as more or less the last word on the subject, the book drove home a simple point, one so basic it is often overlooked: Government agencies charged with straightforward tasks—say, issuing monthly retirement checks—stand a good chance of carrying out their duties efficiently. Bureaus tasked with promoting far more complicated initiatives — such as building futuristic high-speed railroads, controversial new freeways, "smart" electrical grids, or an industrial policy purporting to create hundreds of thousands of "green jobs" — have bigger obstacles to clear.

No wonder that the Social Security Administration disbursed its stimulus funds smoothly, whereas the departments of transportation and energy often ran into difficulties and delays. In the end, President Obama himself noted the dilemma, famously expressing his frustration to Peter Baker of the New York Times: For many public works, the president exclaimed, "there's no such thing as shovel-ready projects." In short, even if a sizable stimulus in 2009 was a good idea in principle, substantial portions would prove maddeningly hard to administer. James Q. Wilson, who knew a thing or two about bureaucratic impediments, was not surprised.

Nowhere was Wilson's skepticism more marked than in the realm of political reform — another area where his analytical efforts ran deep. The most distinctive feature of American politics in recent decades has been the intensified polarization of the political parties, as each has grown cohesive, disciplined, and doctrinaire. Wilson was too smart to wring his hands about every facet of this phenomenon. Polarized partisanship, after all, has some virtues. Would voters really be better off if the two parties instead gravitated so consistently to the center as to become programmatically indistinguishable? Was the Democratic Party truly better when its diverse coalition included Southern segregationists? Although Wilson naturally would have answered these questions in the negative, he could see that the development of a style of partisan politics so ideologically hidebound as to preclude pragmatic compromise for the public interest was deeply problematic.

In fact, Wilson was perhaps the first American political scientist to discern and begin to explain this trend. In 1960, Wilson published Negro Politics. Based on his doctoral dissertation, the book compared the styles of two black politicians: William Dawson, a seasoned member of Chicago's congressional delegation, and the flamboyant Adam Clayton Powell, Jr., of New York's. Congressman Dawson's loyalty was to Mayor Richard J. Daley's local party machine, an organization notoriously motivated by expedient material incentives rather than by ideology. Congressman Powell was the opposite: a firebrand, excited by symbols and passions. The result? Dawson was adroit at wheeling, dealing, and getting things done. Powell mostly wasn't.

The growing presence in the party system of uncompromising activists, animated by wedge issues and ideological sentiments, was the subtext in at least two of Wilson's subsequent books. The Amateur Democrat (1962) and Political Organizations (1973). Both were far ahead of their times. Anyone contemplating the power of ideologues in both the Democratic and the Republican parties today ought to re-read those works. They shed light on the rise of zealotry, and on its most vexing implications: the willingness to go down in flames over professed principles, and disdain for politics as the art of the possible.

Although Wilson detected sooner than the rest of us the perils in the ascent of partisan activism, he was no less concerned that proposed reforms of party politics, now as in the past, could have unforeseen side effects, including some that might turn out to be worse than the disease. His circumspection reflected the influence of Edward C. Banfield, his closest teacher and colleague, who was another of the 20^th century's greatest social scientists.

In 1963, Banfield and Wilson had written City Politics, a book brimming with historical insights into how political reform movements aimed at suppressing "partisanship" had gone awry. Drastic measures to curtail the power of party organizations were adopted by American city governments during the Progressive era. One of them was the notion of erasing, quite literally, the party identifications of candidates in municipal elections. The theory behind this so-called non-partisan balloting was that it would empower the voters: Now, presumably, they would choose directly among persons running for office, rather than having their menus decided by partisan intermediaries.

What stirred the proponents of this idea was disgust with big-city machines and party bosses, and with the corruption and waste they begot. Of course, that specific complaint was not the same as the one critics level at the parties today — namely, that their elites are too polarized philosophically. In a larger sense, though, the reform ideals then and now have something in common. The ultimate intent of the non-partisan ballot, Banfield and Wilson observed, was to release "the people from the shackles which the machines and bosses had fastened upon them" in order to elevate public affairs above "considerations of party interest and party advantage" and "give the democratic impulse a chance to express itself" Indeed, an overarching objective of the Progressives was to put "the electorate in the position to assert its will despite professional politicians." That preoccupation has at least some parallels with current talk of a "democratic deficit" — that is, the concern that public affairs again are being hijacked by political operators who pursue, albeit for other reasons, partisan aims presumably disconnected from the will of average voters.

The main point to note about such reform efforts, Wilson would remind us, was that their principal consequence was undesirable: Far from encouraging people to get out and vote, the non-partisan formula depressed turnout. Today, more measures aimed at domesticating partisan politics and blurring party differences might appeal to battle-weary voters — or, like the non-partisan ballot, such measures could confuse, bore, and discourage those voters. The latter outcome, in turn, would scarcely serve the goal of depolarization. The first to be weeded out by lower turnout are the relatively apolitical voters, those who are less partisan and less militant—in short, those who are less polarized.

It gets worse. Among Progressivism's various political innovations, Wilson argued, none grew more consequential over time than the idea of the direct primary election as the preferred means of nominating candidates. Before the diffusion of primaries, the selection of candidates was largely controlled by cadres of state and local party leaders. Their usual cast of mind, at least until rather recently, lay less in any impassioned pursuit of social causes than in simply securing for the political parties material advantages such as pork and patronage. For these power brokers, therefore, anointing candidates who stood the best odds of getting elected was the first order of business. And that pragmatic imperative tended to favor office-seekers with a broad appeal.

Enter the primary system. Its purpose was to displace the role of party bosses in vetting candidates and to engage the citizenry. Alas, not infrequently, this experiment in giving "the democratic impulse a chance to express itself has had the perverse result of rendering American elections, in a sense, less democratic. Typically, only small bands of voters bother to participate in primaries — and these committed participants tend to be more fervid than ordinary citizens. (The effect is strongest in the "closed" primary, where only card-carrying members are eligible to vote in their party's contest.) Thus candidates are impelled to pitch their campaigns to unrepresentative factions. Having gained nominations by aligning with the hard-core positions of primary voters, candidates may then have trouble moving back to the midfield, where general elections are often won or lost.

The party primary, in sum, risks leaving the general electorate with fewer moderate politicians and more zealots. At times, it has also turned into a device for driving any remaining moderate incumbents toward disagreeable extremes. In no small part, the direct primary has come to represent the reverse of what the Progressive ethos envisioned: less a dependable expression of the "democratic impulse" than an instrument of party purification, purging society's public servants when they don't toe the party line.

No one foresaw more clearly than James Q. Wilson how far this Progressive electoral institution would stray in practice from its original theoretical intent. He would point to it as a cautionary tale for other prospective exercises in political reform.

THE TEACHER

I will miss James Q. Wilson. So will the rest of his pupils. And so will the country. For he set a standard of civility and intellectual integrity that anyone interested in the practice, as well as the study, of politics ought to admire.

His old friend Daniel Patrick Moynihan was famed for reminding those who engage in political discourse, "You are entitled to your opinion. But you are not entitled to your own facts." Few public intellectuals have adhered to that maxim more assiduously than Wilson did.

Deference to the facts, even when they might lead government policy in unexpected or unconventional directions, was among his trademarks. These days, more attention to that disposition by all sides surely would render the arguments in some of the nation's momentous partisan debates less sterile, and more credible.

Today's great public dialogues also would benefit from a larger quotient of the quality Wilson displayed in abundance: humility. The inconvenient truth is that frequently our knowledge of how to get to the source of what afflicts the economy or the polity, and then to fix it reliably, is woefully fallible. Correctives are confidently bandied about, but too often — and often too late — they get mugged by reality. James Q. Wilson grasped this quandary profoundly, and he strove nobly to alert all of us to it.

This article originally appeared in National Affairs.

Authors

Pietro S. Nivola

Publication: National Affairs

Image Source: Michaela Rehle / Reuters

Web Chat: Health Care and the Supreme Court

Wed, 20 Jun 2012 12:30:00 -0400

Event Information

June 20, 2012
12:30 PM - 1:00 PM EDT

Online Only
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

President Obama’s controversial health care reform law has sparked numerous battles in the lower courts with state challenges to the constitutionality of the individual mandate. Following the lively oral arguments in March, the Supreme Court will decide the fate of the landmark Affordable Care Act before the term concludes at the end of June.

Does the current law infringe on individual and state rights? How will the Supreme Court’s decision impact the future of health care in the U.S.? On June 20, Brookings expert Henry Aaron took your questions and comments in a live web chat moderated by Vivyan Tran of POLITICO.

12:30 Vivyan Tran: Welcome everyone, let's get started!

12:30 Comment From Kris: If the healthcare law is struck down, what are the chances of making progress on healthcare reform in a new administration?

12:31 Henry Aaron: Not much, in my view. The president would see that two previous presidents (Clinton and Obama) had suffered major political losses trying to reform health care and would be unlikely to propose anything bold

12:31 Comment From Benjamin: What is the legal argument against the individual mandate? On what basis is it considered unconstitutional?

12:33 Henry Aaron: Congress has rarely, if ever, required people to buy something. It has, however, the power under legal precedent since the 1930s to do so. For the court to decide that Congress cannot regulate insurance by requiring participation of nearly everyone, it would have to go back to legal doctrine that prevailed before The New Deal.

12:33 Comment From Darnell: Is there any way to predict the Supreme Court’s decision? Do we know which justices will most likely vote for or against the law’s constitutionality?

12:34 Henry Aaron: It is easy to predict the outcome...everyone is doing it. They just don't agree!! It is nearly certain that four justices will vote to sustain the law and that three will vote to invalidate at least some parts of the law. The common view is that the outcome is up to Justices Kennedy and Roberts.

12:34 Comment From Alexandra: What if the individual mandate is struck down? Will remaining parts of the law stay in effect?

12:35 Henry Aaron: That is up to the Court. It could preserve the whole bill, none of it, or parts of it. All three positions were argued orally and briefed to the Court.

12:35 Comment From Robert: What qualifies something as “interstate commerce” and does the purchasing of health insurance fit that definition?

12:38 Henry Aaron: Most everything has some effect on interstate commerce. In one famous decision, the Court ruled that a farmer who grew wheat for his own use was doing something that influenced interstate commerce because if he hadn't grown the wheat, he would have had to buy it in the market, which is definitely interstate. The interstate character of insurance is not a close question. The issue in this case is whether the failure to buy insurance affects interstate commerce. As an economist, I don't think that is a close question...it definitely does affect the price of insurance and, hence, interstate commerce.

12:38 Comment From Edward: When is the Supreme Court expected to rule on health care reform. Do you expect we will know its fate before the end of the week?

12:38 Henry Aaron: They are expected to rule before the adjourn for the summer at the end of this month. The decision could come at any time. No one knows for sure.

12:38 Comment From Brad: The government is arguing that Congress can require citizens to purchase insurance. What is the argument against this?

12:39 Henry Aaron: The argument is that doing nothing cannot be defined as influencing commerce. As I indicated in a previous answer, I think that argument is a bad one, but, clearly, the Court is considering it quite seriously.

12:40 Comment From Nina: In your opinion, what decision from the Supreme Court would represent the best case scenario for our healthcare system?

12:41 Henry Aaron: The best outcome, in my view, would be to proceed with the Affordable Care Act. It is not perfect legislation and we will encounter unexpected consquences. Changes will need to be made. But if we go back to square one, we will find it difficult or impossible to make the bold changes necessary to extend coverage to the uninsured and to change the payment and delivery systems to rein in the growth of spending.

12:41 Comment From Guest: Considering the low public support to the affordable care act, some people say that it is better for Obama when the law is determined unconstitutional. Would you agree with those who say so?

12:43 Henry Aaron: Political analysts disagree. Much depends on the wording of the Court's decision. My own view is that a loss is a loss and that it would be better for Obama to be sustained. One of my colleagues counters: Winners celebrate; losers organize. If that is true, then my intuition is wrong.

12:43 Comment From Guest: Recently several major insurers announced they will retain portions of the ACA, regardless of the Court's decision. What affect do you think these announcements have on the political arguments surrounding health reform?

12:44 Henry Aaron: Not a whole lot of effect. The decisions of the insurers were heartening. But they do not go to the heart of the problems with narrowing coverage or rising costs.

12:44 Comment From Samantha: If the Supreme Court upholds the law, could a President Romney really repeal it?

12:46 Henry Aaron: He can try. Congress might respond, but if the Democrats wanted to block outright repeal and enough Senators wanted to stop repeal, then the bill would remain on the books. If elected president, Romney could refuse to take the administrative steps necessary to implement it.

12:46 Comment From Bill in Va.: What benefits that have already kicked in would be forfeit if the law is struck down? For example, would children under 26 suddenly lose coverage? This seems like a major political liability for the GOP.

12:49 Henry Aaron: The extension of coverage under parents' insurance of students up to age 26 has already kicked in. So has the process of beginning to close the 'donut hole' in the drug benefit. A large number of administrative steps have already been taken, such as soliciting bids to form accountable care organizations and to carry out research on comparative effectiveness. All of these measures could be stopped. If people understood the Affordable Care Act better than they appear to do, then I would agree that repeal would be a major liability. But the level of information seems quite low.

12:49 Comment From Doyle: If the individual mandate is struck down, is it in everyone's best interest for Congress to strip away the rest of the law? If not, then why?

12:50 Henry Aaron: Much of the bill is quite independent of the individual mandate. The government argued that if the mandate is struck down, then only two other provisions (mandatory issue and 'rate bands') should be struck down.

12:50 Comment From Daniel: Can you discuss the implications of the severability issue(s). My understanding is that the law does not have an explicit severability clause, nor does it have to in order to implements parts, but not the whole law.

12:51 Henry Aaron: The law does not have a severability clause. That means that if the Court strikes down the mandate, it can decide to retain some, all, or none of the rest of the law.

12:51 Comment From Guest from California: Romney is saying he will "repeal and replace" Obamacare. Assuming the law's major provisions are upheld by the Court, what do we know about Romney's plans for health care policy?

12:53 Henry Aaron: Not much. His statements have been remarkably vague. He says he would authorize cross state sales of insurance, seek repeal of the ACA, and not a great deal more. I think that there are defnesible 'conservative' reforms of the health care system that are serious proposals, even if I may not agree with all of them. But so far Romney has not put forward a well-defined program.

12:53 Comment From matthew: 2 people are in a car wreck. One has insurance and the other does not. When they both get to the hospital, both are treated the same. Doesn't this mean that everyone has insurance in a way and that all the government is asking is everyone to pay for the service they already have.

12:55 Henry Aaron: I think that the scenario you describe indicates why the failure to buy insurance does influence interstate commerce. But there is another way out of this problem, and Justice Scalia actually suggested it in oral argument...namely, get rid of the requirement that hospitals treat the uninsured in the case you describe. [I am not making that up!]

12:55 Comment From Charles: Historically, have Republicans always loathed the individual mandate as they do today?

12:56 Henry Aaron: The individual mandate is a Republican idea, originated at the Heritage Foundation and embodied in a plan put forward by Senator Chafee in opposition to the Clinton health plan.

12:56 Comment From Marco: If the mandate is stricken down on a national level, do you think state gov. would try to pass it themselves as a state's right, and if so, will there be any ground if the act is taken down?

12:57 Henry Aaron: States have the power to mandate coverage. How many would do so is open to question. One--Massachusetts--has done so, but they had some considerable financial help under special arrangements. I do think that interest in promoting reform at the state level, which existed before president Obama took office, could well return.

12:58 Comment From Guest: If the SCOTUS strikes down the mandate, do you think we'll see a lawsuit against MA's health system? Will we see an effect on any laws beyond health care?

12:58 Henry Aaron: No. That is up to Massachusetts

12:59 Comment From Steve D.: Would you be surprised if Chief Justice Roberts ended up being the swing vote instead of Justice Kennedy? Justice Kennedy during oral arguments seemed very weary of how far reaching a precedent upholding the ACA would be while CJ Roberts asked even handed questions of both sides during oral arguments. Roberts has what he wants his legacy to be to consider as well and he could narrow a ruling in favor of the ACA to the facts of the case which is an approach he often seems to prefer.

12:59 Henry Aaron: I would be surprised if Roberts was not in the majority, which is slightly different from what you asked.

12:59 Comment From Tom: How successful has Masachusetts been at curtailing costs through its new healthcare policy? If the ACA is struck down, can we expect to see more states adopting their own policies, perhaps with an individual mandate?

1:00 Henry Aaron: So far, not very. But they are working on that problem now and expectations for significant reforms are quite high.

1:00 Vivyan Tran: Thanks everyone. See you next week!

Is America in Decline?

Tue, 15 May 2012 14:00:00 -0400

Event Information

May 15, 2012
2:00 PM - 3:30 PM EDT

Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue, N.W.
Washington, DC 20036

Debilitating political polarization, crushing public debt, a toothless campaign finance system, dysfunctional schools, crumbling infrastructure, a shifting economic landscape, rising health care costs and declining median household incomes – these are some of the many problems Edward Luce details in his new book, Time to Start Thinking: America in the Age of Descent (Atlantic Monthly Press, 2012). Many will argue, however (and many have), that “declinism” has been wrong in the past and America’s ability for self-renewal will prove the alarmists wrong again. Regardless of whether our nation’s problems are insurmountable, Luce poses questions worth serious consideration.

On May 15, Brookings Senior Fellow William Galston moderated a discussion of Time to Start Thinking, which is based on Luce’s meticulous journalism and bolstered by interviews with senior White House officials, U.S. senators and the chief executives of some of America’s top companies. Ezra Klein, columnist for the Washington Post joined the conversation.

This event is part of the Governing Ideas series intended to broaden the discussion of governance issues through forums on timely and relevant books on history, culture, legal norms and practices, values and religion. After the program, panelists took audience questions.

Participants

Panelists

William A. Galston

Edward Luce

Chief U.S. Columnist

Glenn Hutchins

Co-Founder, Silver Lake
Vice Chairman, The Brookings Institution

Ezra Klein

Columnist

The Real Immigration Debate Isn't About the Law

Audrey Singer and Jill Wilson — Fri, 27 Apr 2012 00:00:00 -0400

Anyone who keeps an eye on immigration in America is thinking about Arizona right now, as the U.S. Supreme Court considers the federal government’s lawsuit against Arizona’s SB 1070.

While the court digs into the legal nuances of pre-emption, let’s step back and consider what the debate is really about.

The Washington Post this week published an article about the architects of many state and local laws cracking down on illegal immigration, including Arizona’s—Michael Hethmon and Kris Kobach.

Hethmon, general counsel for the Immigration Reform Law Institute, says immigration is “on track to change the demographic makeup of the entire country. You know, what they call ‘minority-majority….’ How many countries have gone through a transition like that—peacefully, carefully? It’s theoretically possible, but we don’t have any examples.” He also predicts that if the Supreme Court upholds the Arizona law, this country will experience “the classic environment for, if you will, sort of nativist-type sentiment.... It should explode at the states or—even better—[Congress] will be provoked to take action.”

His admission that the proliferation of state and local action on immigration policy is about ethnicity and culture rather than legality doesn’t stand alone. Kobach echoes, “Change the individual decisions of particular illegal aliens, and they will decide to leave the country.” Which particular illegal residents is he referring to? If this is indeed about legality shouldn’t he be focused on all illegal residents?

Consider the Prince William County, Va. anti-illegal immigrant ordinance (authored by Hethmon) passed in 2007. In our 2009 case study, we found that county residents who pushed for the law acknowledged that the (presumed illegal) status of their new neighbors was secondary to the changes they were seeing on the ground such as to the outward appearance of houses and property, many of which could have been addressed by local zoning enforcement. But these residents supported the ordinance because it’s easier to focus on something as black and white as legal status than to face the difficult work of addressing neighborhood and cultural change.

Consider Kobach’s statement about our options for federal immigration reform: “We are constantly told that the only two options are massive roundups [of illegal immigrants] or an amnesty. But attrition through enforcement is the third way.”

He’s right and wrong. We are told that those are the only two options because people in his camp keep saying it. But it’s not true. The real third way is a legalization program allowing immigrants who have been living and working in the United States for several years and not committed other crimes to pay fines, learn English, and wait in line to become legal residents. If that is amnesty, then U.S. businesses and consumers have enjoyed a form of amnesty—cheap labor and cheap goods—all the years that our immigration system has failed to legally meet our demand for labor.

Hethmon acknowledges that the strategy of attrition is flawed: “What are you going to say to the people who say that you’re creating a climate of fear?” Hethmon recalled someone asking him recently. “I say, ‘Well, yeah, it’s not great. But it’s the best choice.

No, it’s not. The best choice is to set levels of legal immigration (both low- and high-skilled) that meet our demand for labor, enforce them at the border and the worksite, and then find a legal way for the millions of residents living in this country illegally to continue to contribute to our economy.

New analysis out this week from the Pew Hispanic Center showing that net migration from Mexico has dropped to zero suggests that the strategy of attrition has been a factor in some migrants’ decisions to leave the United States or not to come in the first place. But migration decisions are complicated, and the recession-driven drop in construction and service sector jobs north of the border combined with improving conditions in Mexico are other major contributors to this shift.

Figuring out how to integrate newcomers into our midst isn’t easy but we’ve been doing it—successfully by most counts—for generations. Hethmon argues that no society has yet succeeded in transitioning peacefully to “majority minority” status, but our history reveals that it’s possible here. Previous waves of immigrants —Southern and Eastern Europeans, Irish, and Chinese—have been vilified, yet today they are considered a positive part of the American story. So much so, in fact, that those once considered “minorities” (i.e. certain European immigrants) are now counted in the “non-minority” category.

The statements reported in the Post piece—and similar ones by many others over our history—reveal that the unease over illegal immigration is, at its heart, cultural. So let’s stop beating around the bush and get down to the difficult task of succeeding in this most important demographic experiment. If any country can do it, we can.

Authors

Audrey Singer
Jill Wilson

Publication: The Avenue, The New Republic

Image Source: Jason Reed / Reuters

An Analysis of President Obama's 2012 State of the Union Address

William A. Galston — Tue, 24 Jan 2012 00:00:00 -0500

In his 2012 State of the Union Address, Barack Obama issued a ringing call for government to take the lead in rebuilding an economy that works for all Americans and to revive the promise of a more cooperative politics that carried him to the White House in 2008. While many of the specific measures he urged are likely to resonate with the public, it remains to be seen whether he can persuade the majority of Americans to set aside their long-festering mistrust of government and give him a mandate to pursue an aggressive policy agenda.

What about the specifics? In advance of President Obama’s State of the Union address, I laid out five things to listen for. Against that template, let’s look more closely at what he said.

#1: For better or worse, an incumbent president’s record is at the heart of his reelection prospects. He cannot run away from that record; he must run on it. So what is the narrative that links the crises of 2008-2009 and the disappointments of 2010-2011 to our hopes for a brighter future?

Toward the beginning of his speech, Obama offered his account of our recent economic history. Even before the recession, he said, jobs began going overseas while wages and incomes for most American were stagnating. And then the crisis hit, sparked by mortgages sold to people who couldn’t afford them and inadequately regulated financial institutions who made bad bets with other people’s money. He reminded the country that in the six months before he took office, the economy lost four million jobs, and another four million in the early months of his presidency. Since then, however, the private sector—led by manufacturing – has created millions of new jobs. And so, he concluded, “The state of our Union is getting stronger. And we’ve come too far to turn back now.” Rather than changing course, the task before us is to “build on this momentum.”

#2: The American people know that the U.S. economy has changed fundamentally and that the “success story” of the future will differ from those in the past. But what is that story?

In broad terms, Obama is betting on the continued revival of U.S. manufacturing, backed by targeted public investments in sectors such as clean energy and infrastructure. As he has before, he called for a major effort in the areas of education and training as well as support for basic research. While globalization is here to stay, he added, we cannot allow our competitors to victimize us with unfair trade practices, and he advocated a new Trade Enforcement Unit that will be charged with investigating “unfair trade practices in countries like China.” And to accelerate domestic job creation, he urged corporate tax reform that ends subsidies for outsourcing while reducing taxes for companies that remain, and hire, in America.

#3: The plight of hard-working Americans—those struggling to remain in the middle class and those struggling to get there—must be front and center. How did the president frame his appeal to this bedrock of our economy and society?

As he did in his Kansas speech last month, Obama invoked a country and economy where “everyone gets a fair shot, everyone does their fair share, and everyone plays by the same set of rules.” Symbolizing these principles, he called for tax reforms that follow the “Buffett rule”—namely, “If you make more than $1 million a year, you should not pay less than 30 percent in taxes.” At the same time, the president virtually dropped the theme of inequality, which had figured centrally in the Kansas speech. This was a wise shift: in America’s public culture, the principle of fair opportunity is more powerful than is equality of wealth and income.

#4: Public trust in our governing institutions is at or near all-time lows. To the extent that Obama’s agenda revolves around an activist government, how did he seek to persuade Americans that its policies can actually improve their lives?

While acknowledging public cynicism about government and calling for reforms of Congress and the executive branch, the president appeared to be hoping that the content of his economic agenda would trump doubts about the effectiveness of the public sector. He may well be underestimating the intensity of negative public sentiment and overestimating its willingness to accept what many will portray as a new burst of activism.

#5: Barack Obama is not just a candidate; he’s the president, and the people expect him to speak as the president. How did he balance his strategy of drawing the line with the Republicans against the imperative of conducting himself as the president of all the people?

For the most part, Obama addressed the country as president rather than party leader. While giving no ground on his key priorities, he spoke of differences between the parties more in sorrow than in anger and tried to identify some common ground, even on the core issue of the role of government. He called on everyone to “lower the temperature in this town” and to “end the notion that the two parties must be locked in a perpetual campaign of mutual destruction.” And he observed that “when we act together, there is nothing the United States of America can’t achieve.

Throughout his speech, Obama invoked the principles of fairness, collective action, and common purpose. Conspicuously absent was the theme on which the Republican Party rests its case—namely, individual liberty—a contrast that prefigures a 2012 general election waged over clashing partisan orientations as well as competing accounts of the president’s record.

Authors

William A. Galston

Image Source: © POOL New / Reuters

In India, Two States, but One Nation

William J. Antholis — Tue, 24 Jan 2012 00:00:00 -0500

Chetan Bhagat's, Two States: The Story of My Marriage, is a mega-hit pop-novel in India. Tamil girl (Ananya) meets Punjabi boy (Krish).

Two States is a not-so-subtle metaphor for how India becomes comfortable with internal cultural immigration and assimilation.

Imagine My Big Fat Greek Wedding, where a Greek boy meets a Finnish girl. Ok, that’s the story of my marriage. But recently Finland opposed bailing out Greece. The Finns have even suggested that Greece be kicked out of the EU.

So, in the Indian version, Ananya and Krish’s families also hate each other. But they eventually learn to tolerate, and even embrace, their differences.

When Krish moves to Chennai to court Ananya’s family (and work for Citibank), it’s the story of India’s “mosaic” — a Punjabi living in Tamil Nadu. Since India liberalized its economy, internal integration has accelerated. (Note: Krishna works for a U.S. bank.) And it’s not just rising young love-seekers like Krish in Two States. It is also hundreds of thousands — perhaps millions— of Biharis and Karnatakans and others migrating to Chennai, Mumbai, and Ahmadabad seeking day-labor work.

Bhagat points to this in the book as the wave of the future — and as something to be embraced.

As the father of the bride says: “When your child decides to love a new person, you can either see it as a chance to hate some people — the person they choose and their families. Which is what we did for a while. However, you can also see it as a chance to love some more people. And since when did loving more people become a bad thing?”

And then, (spoiler alert) Ananya gives birth to twins. The birthing nurse asks: “You are from two different states, right? So what will be their state?”

Krish responds: “They’ll be from a state called India.” In other words, like my kids (and most Americans), they’re mutts.

As I have heard in meeting after meeting, there are far deeper cultural challenges ahead for Indian national identity. India’s medley of languages, religions, castes, and classes are all are obstacles to a common identity. But after six decades, there is little doubt that a common identity does exist in the “new India”, even if it is always being contested by one narrower identity or the other.

On the one hand, that seems incongruous with the emergence of local control. At the same moment India is watering down local identities and creating a national one, it seems odd that they also are enhancing the control of local authorities. Or at least starting to do so.

But in a continent-wide federation, national identity is almost a requirement. Secession becomes much less likely when identity no longer conforms directly with geography. The rights of minorities — religious, ethnic, economic— can be less easily cast aside. So it just may be that India is now comfortable enough with a national identity that it is allowing local voices to flourish.

That was James Madison's vision for the U.S. Constitution in his Federalist Paper #10. Madison called for a continent-wide republic that would prevent hostile local "factions" (that is, state governments) either from oppressing or from seceding.

America’s challenge was that we started out with exceptionally strong states. Despite a common language and cultural heritage, as well as a short but sturdy constitution, our major flaw was that we lacked a national government. Madison wanted to shift some power from the states to the national government, but then in turn limit that central government with the separation of powers.

This included incorporating the echo of federalism in our Senate — equal representation for each state, regardless of size. Keep in mind, at the founding, Senators were elected by state legislatures. They were seen as Ambassadors to Washington.

The downsides of America’s “strong states” federalism have been obvious. The unresolved tension between the Federal government and the states was only finally settled by a terrible civil war. And even after the war, the Senate has been the “cooling saucer” (in Madison’s phrase), giving small states leverage in legislation—especially treaties. That has limited America’s ability to act on a range of national and international priorities.

But the positives also should not be forgotten. Strong state governments have left a legacy of local control that has led to (relatively) productive city and state political systems. States are the laboratories of democracy. And they groom national leaders in both political parties.

India is now experimenting with moving in that direction. Fearing secession, oppression and civil war, Nehru built a very strong and authoritative central state. Now, after six decades of mosaics and cultural melting, the question is not whether to empower states. The question is how, when, and over what issues should authority be returned to Indian states and cities.

Authors

William J. Antholis

Image Source: © Amit Dave / Reuters

Sizing Up the Obama Administration's Defense of the Health Reform Law

Henry J. Aaron — Mon, 09 Jan 2012 00:00:00 -0500

This was originally printed as part of a National Journal forum centered on the legal arguments for and against the Affordable Care Act. The full discussion can be found at the National Journal website.

Back in 2009, when the Affordable Care Act was being written, few doubted that Congress can constitutionally impose a tax penalty on people who refuse to carry adequate insurance. Congress’s power to regulate insurance markets under the Constitution’s commerce clause is settled law. While it seemed clear that Congress has the constitutional power to mandate coverage, some doubted the political wisdom of using that power. Simply forcing people to buy insurance seemed too much like a mean parent saying "eat-your-broccoli, or no dessert." The mandate, it was feared, would arouse needless opposition. The opposition was needless because most people could be encouraged to buy coverage with positive incentives to enroll, such as direct subsidies, and penalties for refusal to enroll, such as extended denial of access to subsidies and exclusion from insurance market protections.

To the surprise of many, opponents of the Affordable Care Act took the broccoli analogy literally. Not buying insurance is simply inactivity, they argued. If government can prohibit this form of inactivity by forcing people to buy insurance, it can force them to buy anything, even broccoli. If Congress can prohibit such ‘inaction,’ they argued, freedom is in jeopardy. More to the point, the constitution doesn’t allow limits on ‘inactivity.’

The appeal to the broad public of the argument that not buying insurance is inactivity may not have been surprising. But the acceptance of the argument by some federal judges is downright astounding, as the distinction rests on a fundamental ignorance of how insurance markets work.

The use of health care is both predictable and random. It is predictable in the sense that some people are more likely to use health care than others—because of age, chronic illness, or genetic disposition. It is random because the onset of many illnesses is unpredictable and because accidents happen.

One would expect that, on the average, those who voluntarily go without health insurance will be comparatively light users of health care. But one would also expect that some fraction of the uninsured will incur large health costs that they cannot afford to pay. Thus, letting some people decide freely not to buy insurance raises costs in two ways for those who do buy insurance. First, it removes from the insurance pool people with lower-than-average costs, thereby boosting premiums for those who do buy insurance. Second, some of those who do not buy insurance will end up using more medical care than they can pay for. Those unpaid bills will also boost costs for the insured.

Thus, the decision not to buy insurance affects the insurance market, which Congress indisputably has the power to regulate. Furthermore, repeated Supreme Court decisions have established that Congress can regulate actions outside the web of commerce that indirectly affect commerce, such as the decision by a farmer to grow wheat for his own consumption is subject to regulation under the commerce clause.

To be sure, this is the position that the government has advanced in its brief in defense of the Affordable Care Act. But it is also the core of two separate, carefully-crafted decisions by conservative appellate court judges, Laurence Silberman and Jeffrey Sutton. Silberman was widely rumored to be on the short list for a Supreme Court appointment during the administrations of Ronald Reagan and George H.W. Bush. Sutton, a former clerk to Justice Antonin Scalia, was nominated to the sixth circuit in 2001 by president George W. Bush. Resistance to his appointment was so stiff that no vote was scheduled for two years; and when the vote took place, 41 senators voted against confirmation. Indeed, the administration’s brief seems crafted to appeal directly to decisions that Justice Scalia signed and that Silberman and Sutton invoked. In particular, the administration brief stresses a point that was key in Justice Sutton’s decision—that, whatever judges may think of the wisdom of a law, they are bound to affirm the law if it is reasonably related to a power that the Constitution gives Congress.

Of course, no sensible person should ever try to forecast what nine very independent justices will decide, particularly when the stakes are as high as those in the decision about the constitutionality of the Affordable Care Act. So, here is my prediction. By a vote 7 to 2 or 8 to 1, in several different opinions, the Court will declare the mandate to carry insurance to be constitutional. Justice Thomas, continuing a long line of decisions calling for a rollback of federal regulatory authority, will dissent. So, might Justice Alito. But Justice Scalia will back the reasoning of his former clerk, Judge Sutton, that demolished the ‘action/inaction’ distinction. The other justices will agree, although for different reasons.

Jointly, the Supreme Court will put the issue of health reform exactly where it belongs...in the hands of the American people. Next November, the electorate will determine the fate of the Affordable Care Act by determining who will occupy the White House from January 20, 2013 through January 19, 2017. In a democracy, that is where the decision should be made.

Authors

Henry J. Aaron

Publication: National Journal

Image Source: Â© Jonathan Ernst / Reuters

Constitution 3.0: Freedom, Technological Change and the Law

Tue, 13 Dec 2011 10:00:00 -0500

Event Information

December 13, 2011
10:00 AM - 11:30 AM EST

Saul/Zilkha Rooms
The Brookings Institution
1775 Massachusetts Avenue, NW
Washington, DC 20036

Technology unimaginable at the time of the nation’s founding now poses stark challenges to America’s core constitutional principles. Policymakers and legal scholars are closely examining how constitutional law is tested by technological change and how to preserve constitutional principles without hindering progress. In Constitution 3.0: Freedom and Technological Change (Brookings Institution Press, 2011), Governance Studies Senior Fellow Benjamin Wittes and Nonresident Senior Fellow Jeffrey Rosen asked a diverse group of leading scholars to imagine how technological developments plausible by the year 2025 could stress current constitutional law. The resulting essays explore scenarios involving information technology, genetic engineering, security, privacy and beyond.

On December 13, the Governance Studies program at Brookings hosted a Judicial Issues Forum examining the scenarios posed in Constitution 3.0 and the challenge of adapting our constitutional values to the technology of the near future. Wittes and Rosen offered key highlights and insights from the book and was joined by two key contributors, O. Carter Snead and Timothy Wu, who discussed their essays.

After the program, panelists took audience questions.

Video

Constitution 3.0: Freedom, Technological Change and the Law

Audio

Constitution 3.0: Freedom, Technological Change and the Law

Transcript

Uncorrected Transcript (.pdf)

Event Materials

20111213_constitution_technology

Participants

Panelists

O. Carter Snead

Professor of Law
University of Notre Dame Law School

Timothy Wu

Professor of Law
Columbia Law School

Interpreting the Constitution in the Digital Era

Jeffrey Rosen — Wed, 30 Nov 2011 11:23:00 -0500

In an interview on NPR's Fresh Air, Jeffrey Rosen discusses how technological changes are challenging basic Constitutional principles of freedom of speech and our own individual autonomy.

TERRY GROSS, HOST:This is FRESH AIR. I'm Terry Gross. The digital world that we've come to rely on - the Internet, social networks, GPS's, street maps—also creates opportunities to collect information about us, track our movements and invade our privacy. Add to that brain scans that might reveal criminal tendencies and new developments in genetic medicine and biotechnology, and you have a lot of potential challenges to basic Constitutional principles that our founding father couldn't possibly have imagined.

My guest, Jeffrey Rosen has put together a new book that explores those challenges. Along with Benjamin Wittes, he co-edited Constitution 3.0: Freedom and Technological Change. It's a publication of the Brookings Institution's Project on Technology and the Constitution, which Rosen directs. He's also a law professor at George Washington University and legal editor for The New Republic.

His new book is a collection of essays in which a diverse group of legal scholars imagine plausible technological developments in or near the year 2025 that would stress current Constitutional law, and they propose possible solutions.

Jeffrey Rosen, welcome back to FRESH AIR. So what are the particular parts of the Constitution that you think really come into play here with new technologies?

JEFFREY ROSEN: Well, what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today. So, for example, think about global positioning system technologies, which the Supreme Court is now considering. Can the police, without a warrant, put a secret GPS device on the bottom of someone's car and track him 24/7 for a month?

Well, the relevant constitutional text is the Fourth Amendment which says the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated. But that doesn't answer the question: Is it an unreasonable search of our persons or effects to be monitored in public spaces?

Some courts have said no. Several lower court judges and the Obama administration argue that we have no expectation of privacy in public, because it's theoretically possible for our neighbors to put a tail on us or for the police to track us for 100 miles, as the court has said. Therefore, we have to assume the risk that we're being monitored, ubiquitously, 24/7 for a month.

But not everyone agrees. In a visionary opinion, Judge Douglas Ginsburg on the U.S. Court of Appeals for the D.C. Circuit said there's a tremendous difference between short-term and long-term surveillance. We may expect that our neighbors are watching when we walk on the street for a few blocks, but no one in practice expects to be tailed or surveilled for a month.

Ginsburg said we do have an expectation of privacy in the whole of our movements, and therefore when the police are going to engage in long-term surveillance, because they can learn so much more about us, they should have a warrant.

There was a remarkable moment in the oral argument for the global positioning system case. Chief Justice John Roberts, who asked the first question, he said: Isn't there a difference between 100-mile search of the kind we've approved in the past and watching someone for a month?

The government's lawyer resisted, and Roberts said: Is it the U.S. government's position that the police could put GPS devices inside the clothes of the members of this court, of these justices, or under our cars and track us for a month? And when the government's lawyer said yes, I think he may have lost the case.

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Authors

Jeffrey Rosen

Publication: NPR

Image Source: Tom Grill

Targeting Citizens and the Fifth Amendment: The Operational/Non-Operational Distinction, and the Question of Known Citizens as Collateral Damage

Robert M. Chesney — Tue, 04 Oct 2011 15:27:00 -0400

Over at Slate, Will Saletan has an interesting post up querying whether the Fifth Amendment analysis potentially underlying the decision to kill al-Aulaqi—broken down into requirements that the person be otherwise targetable in connection with al Qaeda, that the person pose an imminent threat, and that the person be located in a place where capture is not a feasible alternative—really adds anything beyond what already is required to justify an attack against a non-citizen. Will’s point is that (i) we are only resorting to drones in circumstances where captures in general aren’t feasible and (ii) the temporal loosening of “imminent” makes the threat test largely toothless. As a result, he concludes, a citizen associated with al Qaeda is no less likely to be targeted than any other al Qaeda member. I think, however, that there likely is an important additional element built into the imminent-threat prong of the test: the nature of the person’s role. I don’t think it is accidental that the government has emphasized al-Aulaqi’s migration from idealogue to operational leader with hands-on involvement in particular plots (a point Ben emphasizes in another Lawfare post here). The government’s due process analysis should treat this as a weighty factor in the analysis, and I suspect that it probably does (to be clear, I’m not privy to that analysis—I’m just speculating based on what I think the correct analysis actually is).

Now, does this mean that Will’s bottom line is wrong? That’s hard to say. The same strike that killed al-Aulaqi also killed Samir Kahn (as Alan notes here)—another American member of AQAP, one who so far as I know was not involved in operational planning but who was a key propagandist (playing a major role in producing AQAP’s english language webzine Inspire). The million dollar question, from the point of view of the issue Will raises, is whether it would be consistent with the Fifth Amendment to have targeted Samir Kahn standing alone (or, if you prefer, killing “core” al Qaeda propagandist-and-US-citizen Adam Gadahn). I’m willing to bet that there have been fierce internal debates about this, and would not be surprised if the OLC memo turns out to draw exactly this distinction.

If that is the case, it also raises an interesting further question when a non-targetable citizen is in the company of someone who can legitimately be targeted. From an IHL perspective, the relevant constraint is proportionality, brought to bear through a collateral damage analysis. But does the Fifth Amendment offer the same leeway in this setting? That is to say: If you cannot directly target Samir Kahn in light of the Fifth Amendment, is it ok to knowingly kill him while formally targeting another person with whom he happens to be riding? Note that this issue might not have arisen in this instance—I don’t think we know that the government knew Kahn was in the car with al-Aulaqi. And of course I could be wrong in speculating that about a operational/propogandist distinction being drawn for Fifth Amendment purposes. In any event, this will be an interesting issue to look for should the apparent OLC memo be released.

Authors

Robert M. Chesney

Publication: Lawfare

Against a Crude Balance: Platform Security and the Hostile Symbiosis Between Liberty and Security

Benjamin Wittes — Wed, 21 Sep 2011 11:25:00 -0400

Introduction

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin

They are perhaps the most famous words ever written about the relationship between liberty and security. They have become iconic. A version of them appears on a plaque in the Statue of Liberty. They are quoted endlessly by those who assert that these two values coexist with one another in a precarious, ever-shifting state of balance that security concerns threaten constantly to upset. Every student of American history knows them. And every lover of liberty has pondered them, knowing that they speak to that great truth about the constitution of civilized governments: that we empower government to protect us in a devil’s bargain from which we will lose in the long run.

Very few people who quote these words, however, have any idea where they come from or what Franklin was really saying when he wrote them.

They appear originally in a 1755 letter Franklin is presumed to have written on behalf of the Pennsylvania Assembly to the colonial governor during the French and Indian War. The letter was a salvo in a power struggle between the governor and the Assembly over funding for security on the frontier, one in which the Assembly wished to tax the lands of the Penn family, which ruled Pennsylvania from afar, to raise money for defense against French and Indian attacks. The governor kept vetoing the Assembly’s efforts at the behest of the family, which had appointed him and did not want its lands taxed.

The “essential liberty” to which Franklin referred was not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security. And the “purchase [of] a little temporary safety” of which Franklin complained was not the ceding of power to some government Leviathan in exchange for a promise of protection from external threat; for in Franklin’s letter, the word “purchase” does not appear to have been a metaphor. The governor was accusing the Assembly of stalling on appropriating money for frontier defense by insisting on including the Penn lands in its taxes and thus triggering his intervention. And the Penn family later offered cash to fund defense of the frontier—as long as the Assembly would acknowledge that it lacked the power to tax the family’s lands. Franklin was thus complaining of the choice facing the legislature between being able to make funds available for defense and maintaining its right of self-government—and he was criticizing the governor for suggesting that it should be willing to give up the latter to ensure the former.

In short, Franklin was not describing a tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade.[1] Notwithstanding the way the quotation has come down to us, Franklin saw the liberty and security interests of Pennsylvanians as aligned. The difference between what he meant and what we remember him as saying perfectly encapsulates our tendency to mangle intellectually the true relationship between liberty and security.

The idea that liberty and security exist in balance hangs over America’s entire debate about the optimal legal authorities with which to confront security problems. The metaphor of balance—in which some added bit of liberty weighs down the scales and disrupts the security side, or some new security measure must necessarily make the liberty tray move upwards—lives pervasively in our rhetoric. It lives in our case law. It lives in our academic discourse. It lives in our efforts to describe our reality. It lives in our aspirations. It lives in the calls to shift the balance in perilous times by giving up liberty in the name of security, and it lives as well in the calls to restore the balance by abandoning security measures said to injure freedom.

As Philip Bobbitt puts it:

There is a virtually universal conviction that the constitutional rights of the People and the powers of the State exist along an axial spectrum. An increase in one means a diminution of the other. On this spectrum we imagine a needle oscillating between two poles, moving toward the pole of the State’s power in times of national emergency or toward the pole of the People’s liberty in times of tranquility. . . . A corollary to this conviction is the widely held belief that intelligence and law enforcement agencies constitute a threat to civil liberties.[2]

The balance metaphor lives, paradoxically enough, even in our attempts to reject it. Opponents of new security measures will often vocally eschew the balance metaphor—insisting that we can be both “safe and free” or, as President Obama put it in his inaugural address, that we can “reject as false the choice between our safety and our ideals.”[3] Indeed, the idea that we retain security by holding fast to our ideals, not by compromising on them, is a recurrent theme in Obama’s rhetoric—and in a lot of rhetoric on the political Left. Yet in these very attempts to reject a “choice” between the two goods and to assert their congruence, Obama tends to end up describing the very balancing he seems to reject. In his speech on the rule of law and security at the National Archives in 2009, for example, Obama said that:

We see . . . above all . . . how the recent debate has obscured the truth and sends people into opposite and absolutist ends. On the one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and would almost never put national security over transparency. And on the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "Anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants—provided it is a President with whom they agree. Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty and care and a dose of common sense.[4]

The balance metaphor has a way of rising out of the ashes of its very rejection.

The image of balance arises especially vividly in the context of surveillance, where every augmentation of government power is said to come at some cost to liberty. The relationship between surveillance and liberty has taken on special importance as the internet has continued its exponential growth and as personal data concerning individuals has proliferated. The question of how aggressively governments can police and monitor the use of communications and other technological architectures has necessarily arisen alongside these platforms—with the balance metaphor invariably hovering over the discussion. Proponents of more aggressive surveillance justify such steps as necessary and imposing only allowable costs in light of some compelling governmental or societal security need. Opponents criticize them as excessive enhancements of governmental power, which we take at the expense of freedom or privacy. We seldom stop and ask the question of whether and when our surveillance programs are really coming at the expense of liberty at all; or whether the relationship might be more complicated than that—indeed, whether some of these programs might even enhance liberty.

We should ask these questions. For as Bobbitt writes, while “[t]here is something to . . . these intensely and sometimes unthinkingly held assumptions, . . . the spectrum view and its corollaries are . . . radically incomplete. . . .”[5] Indeed, the balance metaphor, as I shall argue in this paper, is incomplete to the point of inducing a deep cognitive error. In this paper, I hope to convince the reader that any crude notion of a “balancing” between security and liberty badly misstates the relationship between these two goods—that in the vast majority of circumstances, liberty and security are better understood as necessary preconditions for one another than in some sort of standoff. The absence of liberty will tend to guarantee an absence of security, and conversely, one cannot talk meaningfully about an individual’s having liberty in the absence of certain basic conditions of security. While either in excess can threaten the other, neither can meaningfully exist without the other either.

In place of balance, I wish to propose a different, more complicated, metaphor, one drawn not from the scales of justice but from evolutionary biology—albeit from an archaic source in that field. We should think of liberty and security, I shall argue, as existing in a kind of a “hostile symbiosis” with one another—that is, mutually dependent and yet also, under certain circumstances, mutually threatening. This vision of the relationship offers greater analytical clarity than does the balance metaphor. As we shall see, it also offers an important degree of policy guidance as to what sort of enhancements of government security powers will and will not threaten liberty.

In tangible illustration of this point, I want bring this somewhat theoretical set of observations down to earth and attempt to apply them in the arena of surveillance, where the balance metaphor seems most deeply entrenched and is, in my judgment, arguably most deeply misplaced. Some surveillance, to be sure, is destructive of freedom. But sometimes, the relationship between surveillance and liberty is symbiotic—that is, increasing government surveillance powers can actually be liberty-enhancing. I wish to highlight in practical terms what Bobbitt calls “the apparently paradoxical conclusion that some increases in the power of the State may increase, or at least do not diminish, the liberties of the People.”[6] In particular, I want to posit a category of liberty-enhancing surveillance that involves the securing of platforms for the use of the public for purposes of commerce, recreation, creativity, and communications. And I want to show how government power is, in these instances, critical to the establishment of baseline conditions of useful liberty.

The paper proceeds in four distinct steps. First, I describe the balance thesis in its various iterations and the variety of critiques of it that have emerged. Second, I explain why I think the balance thesis is, while not quite wrong, entirely inadequate and misses the core of the relationship between these two goods. Third, I propose an alternative vision of the relationship, one based on the “hostile symbiosis.” And finally, I try to apply these various observations to the case of surveillance, and specifically to the surveillance of platforms, arguing that even quite muscular exercises of governmental power can nonetheless increase human liberty by making insecure platforms safe for public use.

[1] The letter itself can be found in The Papers of Benjamin Franklin, Vol. 6. Ed. Leonard W. Labaree. New Haven, CT: Yale University Press, 1963. For background on the politics of the confrontation between the government and the Assembly, see Chapter 11 of Brands, H.W. The First American: The Life and Times of Benjamin Franklin. United States: Anchor Books, 2002. While Brands does not quote the letter in particular, I confirmed my understanding of the history in correspondence with him. See also Chapter 7 of Issacson, Walter. Benjamin Franklin: An American Life. New York, NY: Simon & Schuster, 2003.

[2] Bobbitt, Philip. Terror and Consent: The Wars for the Twenty-First Century. New York: Alfred A. Knopf, 2008, pg. 241.

[3] Barack Obama’s inaugural address, given in Washington, DC on 21 Jan. 2009, is available at http://www.whitehouse.gov/blog/inaugural-address/.

[4] Obama’s National Archive speech, given on 21 May 2009, is available at http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-On-National-Security-5-21-09/.

[5] supra note 2, at 242.

[6] supra note 2, at 244.

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Authors

Benjamin Wittes

Publication: The Brookings and Harvard Law School Project on Law and Security

Denial of Service: Is Wireless Access Always a Right?

John Villasenor — Mon, 15 Aug 2011 10:34:00 -0400

As has been widely reported, on the afternoon of Thursday, August 11, Bay Area Rapid Transit (BART) authorities shut off mobile phone service in stations in downtown San Francisco in an attempt to impede a rumored protest.[i] The move, which BART characterized as a tactic “to ensure the safety of everyone on the platform” in a press release the following day,[ii] has been roundly condemned by a growing chorus of people who quite rightly see echoes of recent actions taken by Syria, Egypt, and Iran to stifle free expression through government-ordered shutdowns of digital media in those countries. As Rebecca Farmer of the ACLU of Northern California commented in a blog post, “Shutting down access to mobile phones is the wrong response to political protests, whether it’s halfway around the world or right here at home.”[iii]

While BART’s action handed repressive governments across the globe a card that will no doubt be played in the future, given that the protest never materialized, it accomplished little more. Or did it? If there is any benefit to be extracted from this event, it lies in stimulating important discussions and decisions regarding the degree and manner to which entities in control of wireless networks serving public spaces have a right to disrupt the movement of digital information.

It is broadly understood that wireless service may be absent altogether in a given public space, that it may be present but unavailable due to factors such as maintenance or insufficient capacity during periods of high demand, and that its utilization may be subject to various terms of use restrictions. Intentional shutdowns to thwart free expression, however, are a different matter, and the criticisms that have been directed at BART are generally reasoned and accurate. But it is also important to recognize that those criticisms are made from the safety of hindsight. We know now that there was no protest, that there was no rogue breakaway flash mob inside a station that exploited an otherwise peaceful event by using wireless messaging to single out the passengers of a specific subway car for a spree of robbery and assault. In a week that has also seen widespread rioting in the United Kingdom, some of it facilitated through wireless communications,[iv] and the imposition of a curfew in Philadelphia specifically in response to a spate of violent flash mob attacks,[v] the question of when a wireless network owner has a right to impede its use in the alleged interest of the greater public good – or when a government can compel a network owner to take such a step – is more relevant than ever.

At the extremes, the decisions are easy. If, for example, a transit authority were to receive credible evidence that terrorists had planted a cell phone-triggered explosive device in one of its underground stations, no reasonable person would argue against an immediate shutoff of cell phone service until the device could be located and safely disarmed. At the other end of the spectrum, almost everyone would agree that pulling the plug on wireless services in an attempt to obstruct the organizers of a peaceful protest is behavior more fitting of a repressive nation than of the United States.

The more complex questions lie in between. What is the proper level of control of communications systems in an era when wireless networks and services are increasingly being exploited by very small numbers of people to facilitate genuine physical harm but can also be used at precisely the same times and places for innocuous or beneficial purposes by much larger numbers of people?

An argument can be made that electronic messages broadcast to members of a flash mob for the specific purpose of promoting mayhem are textbook examples of “fighting words” – words that in the language of the landmark but now much eroded[vi] 1942 Supreme Court Chaplinsky v. New Hampshire decision “by their very utterance, inflict injury or tend to incite an immediate breach of the peace”[vii] – and thus do not qualify as protected free speech. But authorities endeavoring to silence what they believe to be unprotected digital utterances by silencing all persons using their networks are performing surgery with a very blunt knife. Further, impeding the ability of protesters to communicate on the belief that they might have chosen to engage in unprotected speech if left unimpeded is imposing real punishment for speculative behavior. Finally, people who had planned on using a wireless network to facilitate violent acts but find that it has been shut down can simply adapt their crimes, focusing instead on victims who they now know will be unable to use the network to call for help.

Monitoring and analyzing the private traffic content on wireless networks would potentially offer a means to limit communications cutoffs to only those persons making illegal use of those systems. But by definition, such monitoring would collide directly with privacy rights. A solution that would purport to ensure the right to freedom of expression at the price of trampling the right to privacy is not a solution at all. Thus, in practice, properly maintaining privacy and freedom of expression on wireless networks indeed involves some cost, on rare occasions, to public order. But this is far better than the alternative; after all, in a repressive society, maintenance of public order comes at the cost, at all times, of freedom of expression.

With the continued growth in wireless infrastructure, the power to confer or deny our ability to communicate using mobile devices can now be held by employees of venues with publicly accessible wireless networks including shopping centers, hotels, airports, universities, coffee shops, and yes, transit systems. Companies should put in place clear internal policies that minimize the chances that these employees will impose network shutdowns in the name of public welfare that not only stifle free expression but also introduce new safety risks. Today such policies are often lacking, and employees can be faced with the unenviable challenge of needing to make nearly immediate decisions regarding how to respond to the potential use of their systems to organize flash mob violence, to download and display offensive content, or to engage in any number of other behaviors that raise genuinely difficult questions regarding the limits of free speech.

In some instances they will make wrong or even egregiously wrong decisions. In some instances they will be subject to withering criticism regardless of the decisions they make. In rare cases their decisions will be borne out of a malicious and wanton disregard for the importance of privacy and freedom of expression. But much more often, if mistakes are made it is because they, like the rest of us, are still learning how to best ensure these basic rights amid a quickly evolving and increasingly complex information technology landscape.

[i] Cabanatuan, Michael. “BART admits halting cell service to stop protests.” August 13, 2011. San Francisco Chronicle. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/08/13/MNEU1KMS8U.DTL, retrieved August 13, 2011.
[ii] Bay Area Rapid Transit. “Statement on temporary wireless service interruption in select BART stations on Aug. 11.” Updated August 12, 2011, 1:08 PM. http://www.bart.gov/news/articles/2011/news20110812.aspx, retrieved August 13, 2011.
[iii] Farmer, Rebeca, “Cell Phone Censorship in San Francisco?” ACLU. http://www.aclu.org/blog/author/Rebecca-Farmer,-ACLU-of-Northern-California, retrieved August 13, 2011.
[iv] CBS News. “On 3rd day, U.K. riots spread to 4th city.” http://www.cbsnews.com/stories/2011/08/08/501364/main20089696.shtml, retrieved August 13, 2011.
[v] Masterson, Teresa. “City Curfew for Minors Begins.” NBC Philadelphia. August 13, 2011. http://www.nbcphiladelphia.com/news/local/127609088.html, retrieved August 13, 2011.
[vi] While the scope of “fighting words” has been significantly narrowed in the years since 1942, Chaplinsky continues to have judicial relevance. It was cited, for example, by Supreme Court Justice Samuel Alito in a 2011 dissenting opinion in the Snyder v. Phelps (09-751) case, which considered the right of members of Westboro Baptist Church to protest at soldiers’ funerals. See http://supreme.justia.com/us/562/09-751/dissent.html, retrieved August 14, 2011.
[vii] Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). http://supreme.justia.com/us/315/568/case.html, retrieved August 13, 2011.

Authors

John Villasenor

A Consistent Narrative of Jurisprudence

Benjamin Wittes — Mon, 25 Jul 2011 15:31:00 -0400

At a recent event, Benjamin Wittes discussed the intersection between the courts and politics in the United States, stating that over the past several decades conservatives have created a remarkably consistent view of what the role of the judiciary is. Wittes questioned why this situation exists, and whether it is a necessary condition or one that has simply developed organically.

Authors

Benjamin Wittes

Progressive Visions of Jurisprudence: A Debate

Mon, 18 Jul 2011 14:00:00 -0400

Event Information

July 18, 2011
2:00 PM - 3:30 PM EDT

Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

Over the past three decades, conservatives have articulated a coherent set of expectations of the Supreme Court and the federal judiciary that has proven compelling to the public and marketable in the political arena. By contrast, progressives have floundered both in developing any sort of consensus as to what they want from the courts and in describing their expectations to the public at large. Progressives have a number of competing visions of what a liberal jurisprudence might look like and how a liberal court would behave—visions that differ almost as sharply with one another as they do with conservative views on the Constitution and the courts. The current issue of the journal Democracy features a debate between two of these competing visions of liberal jurisprudence, pitting an essay urging a “Framers’ Constitution” – the idea that the principles set forth in the Constitution do not change, but that interpretation must evolve over time – against one arguing for “New Textualism” – a theory that asserts that progressive values are inherent in the Constitution’s text, history and structure, and that liberals should base their constitutional arguments, first and foremost, on text.

On July 18, the Brookings Institution hosted a Judicial Issues Forum debate with two of the authors of these papers, Douglas Kendall of the Constitutional Accountability Center and Geoffrey Stone of the University of Chicago Law School. Brookings Senior Fellows E.J. Dionne and Benjamin Wittes moderated the discussion.

After the program, panelists took audience questions.