A Mess of Pottage

Let me get two points out of the way off the bat:

• I think that Proposition 8 should be invalidated.
• I am not confident that there are five votes on the U.S. Supreme Court to strike down Proposition 8 as unconstitutional.

Because of both of these points, you would think that I would be rooting for the argument in Perry v. Schwarzenegger that the proponents of Proposition 8 have no standing to appeal the decision. After all, deciding that the proponents have no standing to appeal kills Prop 8 without getting into the sticky Constitutional questions. Judge Walker’s ruling would not be binding on future cases, but it would give an extra 12% of Americans the right to marry a person of their choosing, and it would allow the issue to remain undecided until we have a less hostile Supreme Court on the bench. While all of this is true, I believe that the proponents of Proposition 8 should be allowed to appeal Judge Walker’s decision in Perry.

On Tuesday, the Ninth Circuit asked the California Supreme Court whether

the official proponents of an initiative measure possess . . . the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.¹

This comes as no big surprise, as the court strongly hinted that they would do that in oral argument last month. The doctrine of standing, is based on the following language in Article III, of the Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .” The Supreme Court has decided that the term cases in the previous sentence restricts federal courts to deciding only those matters brought by a party who has an actual and particularized injury that could be redressed by the court. Therefore, not just anyone can sue to challenge the constitutionality of a law that they don’t like; they have to be directly affected by the law before they can bring an action. Likewise, only a party that was directly affected by the judgment can appeal that judgment.

By this standard, I think it is obvious that the proponents just don’t have an interest in enforcement of Proposition 8 that is any different than that of any random person—stopping enforcement of Proposition 8 will not cause the proponents any particular injury or impose any obligations upon them. If the “injury-in-fact” test were the proponents’ only grounds supporting standing, I would have no problem with Perry being decided on those grounds.

However, the proponents have a better argument. It is uncontested that the government has a particularized interest in defending the constitutionality of its laws. Under traditional separation of powers doctrine, it is the responsibility of the executive branch to defend the laws, and consequently, it has standing. But what happens when the executive disagrees with the law it is being asked to defend? Allowing the executive to simply refuse to defend a law that was duly passed by the legislative branch raises serious concerns with separation of powers—the executive would be able to veto legislation by inaction, bypassing the process outlined in the Constitution. In order to counteract this problem, most courts have allowed the legislature to represent the state’s interest in defending the constitutionality of laws when the executive refused to do so through a doctrine called legislative standing.

But what happens when the legislature did not pass the law in question? Twenty-four states currently allow laws to be passed by means of citizens’ initiatives. This process avoids the legislature completely, allowing the people of the state to approve the measure by direct vote. In this situation, no branch of government would have a personal stake in defending the law. While the people of the state voted for the initiative, “the people” is not an entity that can sue or be sued, and individual persons cannot claim to represent the people of the state. Without some other entity to defend the law, the constitutional order is subverted.

The adversarial system only works if there are passionate and strong advocates on both sides of the issue. To ensure the development of good constitutional doctrine, competing points of view must be presented so that a true weighing can take place. While we might be tempted to ignore that principle to gain a favorable outcome in a particular case, such a position would only lead to more problems down the road. Every law should be defended by someone who really believes in it—otherwise it perverts constitutional precedents and makes a mockery of the legislative process. Gays, Lesbians and other minority groups should be especially wary of establishing a precedent that could easily be turned against us.

In the end, I think that the proponents should be given authority to represent the state’s interest if no one else will do it. As much as I would like to see Prop 8 struck down, win I don’t want that victory to have the consequence of slamming the courtroom door shut in the faces of future litigants. Also, remember that if Judge Walker’s ruling is upheld because of lack of standing, no precedent will be set, and there will be no effects beyond California. The ruling would not even prohibit a similar initiative from being passed in the future. While I think that there’s a really good chance that Prop 8 will be struck down on the merits, I would rather lose this case than to win at the cost of the long-term health of our judicial system.

1. The Ninth Circuit also asked whether California law gave the proponents a particularized interest in the initiative’s validity, but for reasons tangential to this post, I think this is so unlikely as to not be worth addressing.

My Open Letter to Senators Hatch and Bennett

I am writing to strongly encourage the Senator to announce his support of the Strategic Arms Reduction Treaty. START is an important step toward increasing US legitimacy and soft power in the realm of Non-Proliferation. This soft power will be key to resurrecting the Non-Proliferation Treaty and increasing international pressure on Iran.

While I recognize the need for efforts such as the Stockpile Stewardship Program and other efforts to modernize and maintain our stockpile and delivery systems, ratification of START cannot wait until the funds for those projects are appropriated as Senator Kyl is proposing. Each day that the Senate dithers, the perception grows stronger that the United States cannot or will not lead on this issue. If we do not lead, no one else will follow.

The non-proliferation regime is the easiest, most effective, and cheapest way for the US to keep nuclear weapons out of the hands of terrorists and rogue states. Growing up in southern Utah, I have seen the disastrous effects of the pursuit of nuclear weapons on what the US Government called a "low-use" segment of the population. I hope you share my commitment to the ultimate goal of a nuclear weapon free world so that the people of our state, our nation, and our world will not have to suffer as my family and neighbors did.

So, Senator, there is no time to delay. I urge you to announce your intent to vote in favor of ratifying START--not after certain funds have been appropriated, not after the next Congress, but now. Do it in honor of your constituents that felt the effects of nuclear weapons first-hand.

Friday Music Post: Found Music Edition

Amazing what you can do with a bass line and video editing:

A grand conspiracy

Apparently, the global warming conspiracy isn't limited to Al Gore--LBJ, Frank Capra, Charlton Heston were all inon it:

(but seriously, can someone tell me--where is the profit in this plan of "manufacturing a climate change conspiracy for fun and profit"? Whenever I hear someone talk about how this is a big conspiracy, I can't help but think of this diagram:

This made me laugh

Beginning of the End for DOMA, Part III: Inside Baseball Edition

So, I earlier blogged about the orders by Judges Kozinski and Reinhardt ordering that same-sex spouses of employees of the Ninth Circuit be granted employment benefits hereand here. It turns out that the Obama Administration has refused to follow the order, stating that this was an administrative decision that is not binding on the Office of Personnel Management, and that until the courts issue a judicial ruling on the constitutionality of DOMA, the executive branch has an independent obligation to follow the law as interpreted by the justice department. The usual suspects are predictably outraged:

You can just smell that the administration did everything they could, twisted every word, to find an excuse for not providing the benefits. After all, if they give the partners of gay employees health benefits, then someone might accuse Barack Obama of being just a bit too friendly with the gays. And as we've learned over the last year, Obama doesn't do "controversial."¹

The statement I just quoted is an excellent example of what happens when you're more interested in pushing a certain narrative rather than understanding what is really happening. The quote asks you to believe, despite the fact that the press release from the OPM calls for the legislative repeal of DOMA, that the administration really wants to keep DOMA around just so it can use gays as a punching bag. This conclusion does not fit the data and requires the use of conspiracy theories to be coherent. A much simpler explanation is that the administration does not want to set the precedent that an administrative tribunal from a different branch of government can give orders the executive branch. In short, this is a turf battle.²

Separation of powers is an incredibly technical and boring issue; it doesn't arouse passions the way that equal protection and civil rights issues do. It is a classic "inside baseball" topic that few care about and even fewer understand, including reporters and commentators. However, if you want to understand why the administration will fight a ruling that they agree with as a matter of policy, you have to get into the more arcane details.

This clip is another example of the inside baseball principle:

To look at it, it looks like Republicans are shouting down their Democratic colleagues. That is how it was reported in the media. The reality is more complex: the Democrats had lined up all the female members of their caucus to give what amounted to one-sentence speeches in the guise of unanimous consent requests. The GOP wanted to stop it, but wasn't quite sure how. While the actions of Rep. King et al. that you see here are not smart politics, they aren't malevolent and obstructionist like they appear to be if you don't know what's going on.

I am not taking a position on whether Kozinski or the OPM is in the right here--that's an obscure issue that I'm not incredibly interested in.³ I just wanted to point out what the real issue is here. Occam's razor posits that the simplest explanation tends to be the best one. In politics, the mundane explanation may not sell newspapers, but it tends to be correct.

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1. I struggled mightily on whether to include this link, as the idea of increasing John Aravosis's traffic even a little bit nauseates me. But for you, dear readers, I will swallow the bile and give you the full context.
2. As further proof that this is a turf war, consider that Judge Reinhardt's order in In Re Levenson, decided at the same time as Judge Kozinski's case, did not direct the OPM to cover Mr. Levenson's spouse, but rather awarded him back pay to cover the denial of the benefit. The Obama administration did not challenge this, and Levenson is currently getting his benefits.
3. If anyone wants to look up whether the hearing officers for the Congressional Accountability Office of Compliance have the authority to direct the OPM to take a certain action, do so and report back to me.

Veteran's Day 2009

Salt Lake Men's Choir sings the Star-Spangled Banner:

I'm three rows up, directly above the guy in camo pants. Sound is a little muddled, but that's what comes of singing in a rotunda--listen to it ring for about two seconds after we finish.

Merry Christmas

Here's my present to you all:

Why the "Kill the Bill" people have no sense

OK--This is my last post of the year (besides a Christmas video I just set on auto-post) So I'm gonna rant about something that has been making me absolutely crazy: Reading all of these lefty bloggers like Jane Hamsher trying to say that instead of passing the bill without a public option, they should just kill it and start over. This is quite possibly the stupidest thing I have heard since, well, shoot, I just remembered this, so I guess it's been the past two weeks or so.

In evaluating whether to pass any policy, there are three questions to ask:

1. What are the benefits of the proposed policy compared to the status quo?
2. what are the costs of the proposed policy compared to the status quo?
3. Do the benefits of number 1 outweigh the costs of number 2?

Any other question is irrelevant and should not be considered. The questions to not be considered include the question "could the policy be better?"* That may be a good question when it is time to craft or amend legislation, but is totally irrelevant when asking whether the policy should be passed or not. Advocating that a bill be defeated because it is not as good as the best option, even though it's better than the status quo is not progressive or idealistic--it's petulant and naive.

For those of you who would argue that it is the "progressives'" way of trying to make the senate accede to their demands as they do with conservative democrats, I have news for you--these sorts of threats only work if they're rational. Conservative democrats have leverage on this issue because based on their interests, their objections are rational. No amount of wailing about the lack of a public option would give you leverage because at the end of the day, if you are rational, everyone knows you'll vote for the bill. What's more, If you're the kind of progressive who would cut off his nose to spite his face, the conservative faction won't hesitate to give you a knife.

While no one would argue that this is an ideal bill, the bill goes a long way to fixing what is wrong with out insurance system. That's pretty amazing. Now is the time to celebrate and encourage the conferees to make the final bill as good as it can be, rather than throwing rocks at the Democratic leadership because they didn't make a perfect bill.

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* There is one important exception to this--if passing the policy now would make it harder for a better policy to pass in the future than it would be if we didn't pass the policy, that is a valid consideration in determining the costs and benefits of the policy. Since this is a bill that comes once in a generation and progressive reforms tend to lead to more progressive reforms being passed, this argument does not apply to the health care debate.

Payback

Max Weinberg repays Orrin Hatch for the Hanukkah Song he inflicted upon the world.