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A Chevron Revolution in the Supreme Court? (Defining Ideas) October 29, 2018

Posted by daviddavenport in Policy Articles & Papers.
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The appointments of two conservative justices to the Supreme Court this year has led to speculation—perhaps even an expectation–that the Court will now undertake a conservative revolution.   Most of this discussion has revolved around a turning back of the dramatic social change brought about by the Court with its legal protection of abortion and same-sex marriage.  Yet a social counter-revolution of this kind would be surprising, since respecting judicial precedent has long been a principle of conservative judges.  Instead, one could more readily envision a slowdown of social change from the Court, or even some limitations on existing social rights, than a full-scale revolution.

Peter Wallison’s new book, Judicial Fortitude:  The Last Chance To Rein In The Administrative State (Encounter Books, 2018), rightly contemplates a more likely path for a conservative Supreme Court:  slowing, stopping, or even rolling back the dramatic growth of the administrative state.  As Wallison points out, since the Supreme Court has contributed to the rise of the administrative state, it could at least do its part to curtail it.  In fact, Wallison is optimistic that the Court, exercising powers that it has not used in decades, could do even more than that.

Wallison’s book is timely, given the growing awareness of the problems associated with the administrative state.  Two recent books—Jason Chaffetz’s The Deep State and Michael Lewis’ The Fifth Risk—document the powerful influence of bureaucrats.  President Trump’s campaign promise to roll back two federal regulations for every new one adopted has begun to play out, especially in the environmental field.  Congress passed a bill cutting back some of the regulatory oversight of the Dodd-Frank bill, especially as it pertains to smaller banks.  The Senate has before it the Reins Act, which would take hold of runaway administrative agencies by requiring that Congress approve any major new regulations from the Executive branch.

Wallison’s title, Judicial Fortitude, points to a different approach to reining in the administrative state: relying on the Supreme Court.  Indeed, the subtitle of the book suggests the sense of desperation that he and other conservatives feel about their project:  “The Last Chance To Rein In the Administrative State.”  Given the difficulty of actually carrying out the agenda Wallison proposes, his “last chance” is only slightly more hopeful than Charles Murray’s conclusion (in By the People:  Rebuilding Liberty Without Permission) that by now there is no chance to roll back the regulatory state, with Murray calling upon the people to engage in “systematic civil disobedience” of intrusive regulations.

The case for the Supreme Court to act goes back to its constitutional role of limiting the excesses of the executive and legislative branches when they overstep their constitutional authority.  Under the separation of powers of the Constitution, Congress may not delegate its legislative powers to the president or to an administrative agency, and administrative agencies may not exceed the power delegated to them by Congress.  Wallison and other conservatives agree that such violations of the separation of power doctrine are rampant, and that there has been little or no effective check to stop or prevent them.  The author provides plenty of current examples from the Environmental Protection Agency, the Department of Education’s Office of Civil Rights, and elsewhere.

The difficult questions are whether and how the Supreme Court could step in now to stop the juggernaut of the administrative state that began its dramatic rise in the Progressive Era and, especially, the New Deal?  Wallison proposes two ways—one plausible and the other a stretch—by which the Court could accomplish this.  One is to undo the so-called Chevron doctrine, adopted by the Court in a 1984 case.  Under Chevron, courts should defer to an administrative agency’s interpretation of its own statutory authority if its interpretation is deemed “reasonable.”  As Wallison states, “Chevron, in effect, gave administrative agencies the authority to determine the scope of their authority.” Late in his career, Justice Scalia had begun to express doubts about Chevron and one could see a conservative Court issuing a corrective, if not an outright reversal.   This plausible remedy might at least slow the administrative train, but it would hardly stop it.

The larger and more difficult judicial remedy Wallison proposes is for the Court to resurrect the “nondelegation” doctrine.  Congress may not delegate its legislative powers to agencies or the executive branch.  0ne of the most important books about the power of the administrative state, Constitutional Morality and the Rise of Quasi-Law by Bruce P. Frohnen and George W. Carey (2016), points out that this kind of delegation is now the new normal for Congress.  In complex areas of oversight, Congress passes laws expressing little more than an intention to regulate, leaving the detailed work to government agencies. As always, the devil is in the details.  This almost certainly is, in a classic constitutional understanding, an improper delegation of legislative power by Congress.  But Congress passes the laws, the president signs them, and the agencies happily draft regulations.  No one seems to want to stop it, at least no one in power.

The problem, as Wallison acknowledges, is that the nondelegation doctrine is all but dead at the Supreme Court, and one has to wonder if it could be revived after so long and in the face of such acceptance of Congress’s willing delegation to agencies.  Wallison rightly argues that this doctrine “protects and preserves the role of Congress as a legislature to make the most important decisions for society.”  But he goes on to admit that the Supreme Court has not invoked it since 1935 and “in the 230 years since the ratification of the Constitution, the courts have made little progress in developing a jurisprudence of nondelegation.” Yes, the Supreme Court initially used this doctrine to declare unconstitutional some of Franklin Roosevelt’s New Deal legislation in the first hundred days but, as Wallison writes, Roosevelt’s later appointments to the Supreme Court began to turn that around and by now we live in a different judicial world.

Would I love to see the Supreme Court take this kind of stand against Congressional delegation and agency regulation?  Absolutely.  Do I think it could happen?  No, not really.  Wallison does better at diagnosing the problem than arguing for this as a likely solution.  Moreover, it feels a bit like conservatives would be heading down the road liberals have often traveled:  If we do not like what other branches of government are doing, let’s take it to the Supreme Court.  I readily acknowledge, however, that liberals have often done this to advance a social agenda under broadened interpretations of the “equal protection” and “due process” clauses of the 14th Amendment, what we sometimes call “substantive due process,” whereas this would be defending constitutional processes.  It is at least a form of judicial activism for the right reasons, using the Court as a brake and not an engine.

I rather think slowing the administrative state is a multi-year, all-hands-on deck project, not an assignment for the Supreme Court.  Admittedly, I am a member of the “Make Congress Great Again” camp.  A large part of the problem is not just that presidents have taken greater executive power and the courts have not stopped the grab, but rather that Congress seems so willing to give up its power.  We see it, especially, in war powers, where Congress actually has the leading constitutional role but instead defers to the president.  As one Congressman said when Congress could have taken up the question of military attacks in Syria a few years ago, but instead adjourned and went home early, a lot of people around here would like the president to “just bomb the place and tell us about it later.”  We see it in presidential declarations of wars on poverty, crime, drugs, terror and the like, where the executive takes over domestic policy from Congress.  Or in the 28 states of national emergency under which we now live that again expand executive power at the expense of Congress.  If Congress does not draw a line and exercise greater courage and activity, no Supreme Court decision will save us from the administrative state.

Party loyalty is also a problem the Supreme Court will not solve.  Members of Congress are now more loyal to their party and its priorities than to their own constituents or to the institutions of Congress themselves.  Congress passed Obamacare on a party-line vote of Democrats and tax reform on a party-line vote of Republicans.  The administrative state continues to grow in new areas that Washington attempts to take over—education through No Child Left Behind, health care through Obamacare—not just in the extent of regulations on a particular issue.

One challenge of being a conservative today is that of being a conservative not only in ends but also in means.  Calling on the Supreme Court to fix problems created by all the branches fails to recognize the Founders’ belief that the judiciary would be the weakest of the branches.  I readily agree, however, that the courts must do their part and, at least in rolling back the Chevron doctrine, Wallison’s book points the way.

To read the essay at Defining Ideas:




Don’t Hold Your Breath Waiting for the Socialist Sweep in 2018 (Washington Examiner) August 31, 2018

Posted by daviddavenport in Op/Eds, Policy Articles & Papers.
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It’s election season, and madness is in the air. Besides the usual questions in a midterm election — who will carry the House and Senate, and how many seats will the incumbent president lose — the word socialism, rarely heard in American politics, is out in the open. A few candidates are actually running for office under the socialism banner. But what does that mean for the 2018 elections and beyond?

For starters, we can say with confidence that there will be no socialist sweep into office in 2018. All the hype is really about a mere handful of candidates, most notably Alexandria Ocasio-Cortez running for Congress in New York and Cynthia Nixon who is running so far behind in the race for governor of New York that we would not pay attention but for her earlier role in “Sex and the City.” There are also candidates for the state house in Pennsylvania. This hardly portends an electoral boom for socialism, but the fact that they are running at all is news.

The more interesting question is whether these candidates running as Democratic Socialists is the early stage of something bigger and longer-term. Is this socialism’s Barry Goldwater moment? In 1964, Goldwater suffered one of the biggest losses in presidential election history, but most credit him with laying the groundwork for Ronald Reagan’s later success running as a conservative. Just as Goldwater proclaimed that “extremism in the pursuit of liberty is no vice,” will these socialists help establish that socialism is no longer a form of extremism in its pursuit of equality?

Alas, this does not seem like a Barry Goldwater moment either for socialists. Prior to Goldwater’s run for president, conservatives had methodically taken over Republican Party positions at the state and local levels around the country. Goldwater himself authored books (most notably Conscience of a Conservative) outlining what he and the conservative movement stood for. Boots on the ground and ideas in the air were sustainable beyond Goldwater’s own electoral defeat and, indeed, they became the base on which Reagan would run and win the presidency 16 years later.

Socialists have no such infrastructure in 2018, only a handful of local and regional candidates wearing the label. The Democratic Socialists of America is the heart of their organization, such as it is. It has grown dramatically in recent times, but at 37,000, it is no bigger than a small town. Just as President Trump took over the Republican Party unexpectedly in 2016, Sen. Bernie Sanders, I-Vt., a self-proclaimed Democratic Socialist, came surprisingly close to gaining the Democratic Party nomination that same year. Importantly, however, he did not grow a major base or infrastructure, so a socialist takeover of the party seems a long way off, if ever.

More important, the neosocialists have no agreed-upon philosophy or message. The millennials who speak favorably about socialism seem mostly interested in free government assistance: free tuition, help retiring student loans and buying houses. Even in Denmark, often spoken of as a the heartland of modern socialism, its prime minister pointed out in 2016 that it was not a socialist country but rather “a market economy” with “an expanded welfare state.” None of the candidates seems to be advocating the traditional understanding of socialism where government or the public owns the means of production and distribution.

Otherwise, one might say that all the buzz about socialism in the 2018 elections is much ado about very little.

David Davenport is a contributor to the Washington Examiner’ s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

A Nation of Laws, Not Men (Defining Ideas) September 3, 2013

Posted by daviddavenport in Op/Eds, Policy Articles & Papers.
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On September 4, a court in Pennsylvania will consider whether a county registrar of wills may issue marriage licenses to same sex couples in contravention of state law because he has decided that law is unconstitutional. This official has now issued over 100 such licenses and other public officials (mayors) have used them to perform same sex wedding ceremonies. The legal challenge by the Pennsylvania Department of Health, which has overall responsibility for marriage laws and licensing, is loaded with constitutional, legal, social, and marital consequences, all of which deserve careful consideration.

At the same time, the Governor and Attorney General of Pennsylvania have exchanged political blows over whether that state law banning same sex marriage should be defended in court and, if so, who has the responsibility to do that. The attorney general says Pennsylvania’s 1996 law stating that marriage is between a man and a woman is “wholly unconstitutional” and she will not defend it, even though the recent Supreme Court decision in Windsor v. United States said states were free to make their own decisions about gay marriage.

This follows on the heels of President Obama’s and Attorney General Holder’s decision to not to defend the federal Defense of Marriage Act (DOMA) in the years prior to the recent determination by the U.S. Supreme Court that the law is unconstitutional. And similar questions arose in the recent California Proposition 8 case when that state’s governor and attorney general declined to defend the law because they felt it was unconstitutional, with the remarkable result, handed down by the Supreme Court, that no one had standing to defend that part of the California Constitution in court.

It looks like a virus is spreading among public officials creating delusions that any one of them may unilaterally decide a law is unconstitutional and decline to follow the law or defend it in court. Setting aside for a moment the same sex marriage context of these actions—we could be talking about environmental laws or gun control or taxes—is it really the case that a single federal, state, or county official is free to make a judgment about the constitutionality of a law and decline to execute, enforce, or defend it? Are we no longer what founder (and second president) John Adams called “a nation of laws and not of men”?

To read the rest of David’s article, please click the link below:


The Roberts Conundrum (Townhall.com) July 6, 2012

Posted by daviddavenport in Policy Articles & Papers.
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Chief Justice John Roberts was apparently on the fence on the healthcare decision and fell off on the wrong side. And he ended up violating the very principles he was trying to uphold.

After rightly declaring the healthcare bill an unconstitutional stretch of Congress’ power under both the commerce and spending clauses, Roberts strained to uphold the bill under the taxing power. Sources for one CBS story indicate he did so fearing damage to the Court’s reputation for being too political and activist.

But if, as it seems, Roberts actually felt the measure was unconstitutional, he himself played politics to uphold the Court’s reputation over the Constitution. And he strained to, in effect, rewrite the law in order to save it, a classic example of judicial activism.

 To listen to the audio please click on the link: http://townhall.com/talkradio/dailycommentary/643434


Happy Birthday International Criminal Court (Forbes.com) July 1, 2012

Posted by daviddavenport in Policy Articles & Papers.
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July 1 marks the tenth anniversary of the founding of International Criminal Court in The Hague.   With an agenda driven by human rights organizations and middle power states, the ICC was launched with high hopes and lofty rhetoric but, after ten years and a billion dollars, only one trial has been completed, and the Court appears to be yet one more international institution that has over-promised and under-delivered.

Following the ad hoc tribunals for the genocide in Rwanda and the war crimes in the former Yugoslavia in the 1990’s, there was a sense that a permanent international criminal court should be established.  But a small group of NGOs, led by Amnesty International and Human Rights Watch, and a coalition of small and middle-power “like-minded states” (Canada, Australia, Germany and others) overreached the international consensus, insisting on a court with broader jurisdiction than ever before (over citizens of nonparty states) and a controversial independent prosecutor.  As a consequence, the U.S. and other major powers backed away from the Court and it became an institution with considerable power and independence on paper, but one that lacked sufficient support to be effective.

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Starting with a requirement that only 60 of the world’s 190-plus nations join in order to form the Court, what kind of support does it enjoy after 10 years?  On the surface, its base appears to have doubled, with the 121st nation, Guatemala, set to join on the Court’s birthday.  Yet the nearly two-thirds of the nation-states who have ratified the treaty to join the Court represent only one-third of the world’s population.  When you start down the list of the world’s largest countries, the first four, and six of the top ten, are not members of the Court.

In addition, very significant regions of the world—Asia, the Middle East and North Africa—are woefully underrepresented in the Court’s membership.  How do you create a significant international institution without the involvement of strategic powers such as China, India, Russia, Israel, Egypt, Pakistan, and the United States (a list that includes three of the five permanent members of the U.N. Council)?  You really can’t, which exposes the weakness of the Court’s membership philosophy to take a “coalition of the willing” rather than reaching compromises to attract a wider support base, which is the very essence of treaty-making.

One of the Court’s biggest membership problems is that the kind of countries most likely to be battlegrounds for the crimes within its jurisdiction—war crimes, genocide, crimes against humanity—simply do not sign on.  So, for example, attacks on civilians in Syria do not fall within the jurisdiction of the Court.  A study by Terrence L. Chapman of the University of Texas and Stephen Chaudoin of Princeton University concluded that nations with “the most to fear from ratifying the ICC—those with worse political and legal institutions and with more severe recent civil conflicts—tend to avoid ratifying.”  By contrast, the vast majority of nations that have joined are more stable democracies that have good judicial institutions, so that the ICC is not needed there.

The ICC Prosecutor, who also concludes his term this month, has had difficulty bringing cases that could really make a difference.  For example, he spent three years fussing over whether Palestine could refer Israel for alleged war crimes in Gaza, even though Israel is not a member of the Court and Palestine is not a nation-state.  This is precisely the kind of politicization and over-reaching that was feared from an independent prosecutor.  In Sudan, the prosecutor indicted President Omar al-Bashir, but he has been sufficiently protected by his allies and friends that the Court can’t even reach him; whereas some lesser figures could have been targeted, captured and prosecuted.  Probably the most notable war crimes conviction of recent years—of former president Charles Taylor in Liberia—was accomplished by an ad hoc tribunal and not by the ICC.  There are important questions about whether the ICC even makes situations worse, preventing alternative solutions such as a negotiated local settlement.

When I lecture on international criminal law, people wonder why it can’t do something about Somali pirates or drug lords.  With nearly 750 staff spending $100 million a year at the ICC, it’s a fair question.  Wouldn’t that money be better spent trying pirates or drug lords, or supporting more localized tribunals such as those that brought hundreds of people to trial in Rwanda, Sierra Leone, the former Yugoslavia and elsewhere?

On its tenth birthday, the International Criminal Court needs to undertake a careful self-examination.  The new prosecutor should spend less time on highly visible and politicized cases and bring some cases of war crimes and crimes against humanity she can actually try and win.  And the Assembly of States Parties, which is the policy body that oversees the Court, should look at compromises to its jurisdictional and prosecutorial powers on paper in order to win wider global membership and support.  Otherwise, the ICC goes down as one more proof that international law is all show and very little go.

Federalism’s Silver Lining in the Healthcare Decision (Forbes.com) June 29, 2012

Posted by daviddavenport in Policy Articles & Papers.
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Perhaps only an academic could appreciate theoretical victories on the battlefield of a major defeat.  But the 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill does actually leave conservatives, and especially those concerned about states’ rights and federalism, some room for encouragement.

The 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill does actually leave conservatives, and especially those concerned about states’ rights and federalism, some room for encouragement. (Photo credit: Wikipedia)

In fact, one could argue that conservatives won all the major constitutional battles in this case but, thanks to some deft footwork by Chief Justice Roberts, still managed to lose the war.  The big constitutional questions in this case were whether there are any limits to the federal government’s power under the Commerce Clause and the conditional spending power and, to each of those questions, a strong majority of the Court said “yes,” and moreover, held that Congress’ actions in this case exceeded those limits.

When this case was first brought, you couldn’t have found more than a handful of legal experts who thought there was a serious chance that the federal courts would rule the healthcare reform bill unconstitutional on commerce clause grounds, yet that is exactly what happened.  People laughed initially at the argument that not buying health insurance constituted economic inactivity and the commerce clause only allowed the regulation of activity, and yet that argument prevailed.  As Chief Justice Roberts wrote in his majority opinion:  “[T]he distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers.”  The Court’s conclusion in this regard is powerful and clear:  “The Framers gave Congress the power to regulate commerce, not to compel it.”

But of even greater practical significance was the Court’s holding that the federal government had, through its conditional spending power, unconstitutionally coerced the states into bending their Medicaid programs to the preferences of Congress.  The last major Supreme Court decision in this area, South Dakota v. Dole in 1986, addressed a state complaint that the federal government overstepped its authority when it said South Dakota would lose federal highway money if it did not raise its legal drinking age to 21.  Since the federal government has no constitutional power to set the legal drinking age, it was attempting to use financial leverage to get the states to follow its policy.  The Court held that Congress could deploy its spending power in this way, but that there was a limit, when the financial inducement was “so coercive as to pass the point at which pressure turns into compulsion.”  Not surprisingly, no case has found such a limit to have been reached in the 26 years since.

Today, the Court said the limit on the federal spending power had been improperly crossed by Congress in the healthcare reform bill.  Rather than the “relatively mild inducement” the Court found when five percent of South Dakota’s highway funds were at risk, today’s Court said that losing all of a state’s Medicaid funding was more like “a gun to the head.”  The Court noted that Medicaid spending accounts for over 20% of the average state’s total budget, whereas 5% of South Dakota’s highway funding was less than one half of one percent of its total budget at the time.  So we now know there is some limit beyond which the federal government may not go in withholding state funding to incentivize (bribe?) a state to do Washington’s bidding.

I can hardly wait for some states to follow this holding right back into court to challenge the federal takeover of K-12 education.  Over the last decade, beginning with President George W. Bush’s No Child Left Behind legislation to President Obama’s Race to the Top grants, the federal government has gone from the back seat to the driver’s seat in K-12 education policy.  What was only a decade ago cited as the classic example of a state or local policy matter, K-12 education is now dominated by federal testing and accountability measures, and now the beginnings of a national curriculum.  Although it falls somewhere between South Dakota’s share of federal highway money and the average state’s federal Medicaid money, the Court today opened the door for such a challenge.  Beyond the money, it is the kind of pervasive and dominating scheme that should be examined.  So this is not just a theoretical victory, but perhaps the setting of a practical stage for more state challenges to federal power.

In the end, having won these Constitutional victories, the states and conservatives lost the case because of clever maneuvering by Chief Justice Roberts.  He undercut the commerce clause argument by finding that Congress had the taxing power to regulate healthcare, even though the federal government itself said this wasn’t a tax.  And he cushioned the blow of the Medicaid provision by saying that Congress could only withhold new Medicaid funding, not existing funding, and that Congress surely intended the law to shift to that ground if the Court found any part of the Medicaid funding issue to be unconstitutional.

The high road reading of Roberts’ decision was that he himself was acting conservatively, citing the Court’s appropriate “reticence to invalidate the acts of the Nation’s elected leaders.”  Still, especially when the presumed swing vote of Justice Anthony Kennedy went with the conservatives, it was a bitter disappointment that Roberts went out of his way to rewrite and reinterpret legislation in order to save it.  Still, despite the loss, states’ rights and federalism made significant gains in this decision, and live to fight another day.

To view the Forbes.com article please click on the link:  http://www.forbes.com/sites/daviddavenport/2012/06/29/federalisms-silver-lining-in-the-healthcare-decision/


The ICC and Palestine: A Response (OpinioJuris.org) April 6, 2012

Posted by daviddavenport in Policy Articles & Papers.
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In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could:  the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States.  The only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found.  Typical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009).  Or a previous post’s argument that went straight to political motives—that Prosecutor Moreno-Ocampo “contrived to reject the existence of the state of Palestine”—when, again, the proper issue before a criminal court was whether its own jurisdictional requirement was satisfied.

The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg.  A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction.  Those debates belong in political bodies, not in criminal courts.  This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.

So, what now?  Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally.  How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later?  If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations.  And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations.  Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.

Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively.  Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.

To view the op/ed please click on the link:  http://opiniojuris.org/2012/04/06/the-icc-and-palestine-a-response/

International Criminal Court Prosecutor Resists Palestinian End-Run (Forbes.com) April 4, 2012

Posted by daviddavenport in Policy Articles & Papers.
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For three years, the Prosecutor of the International Criminal Court in the Hague has been trying to decide whether he had jurisdiction over Israel for alleged war crimes in Gaza. Even though the legal answer (“NO”) seemed obvious from the start, both politics and the inevitable expansionist agendas of international courts kept the question alive and Israel potentially subject to the Court.

Finally this week the Prosecutor announced that he would not pursue the investigation of Israel “for acts committed on the territory of Palestine since 1 July 2002.” For now, this closes off yet another legal front of attack on Israel, and also thwarts another end-run by Palestine around the path by which Palestinian statehood is supposed to be resolved; namely the Middle East peace process and the United Nations.

The interesting question is why it took so long for the Prosecutor to reach what seemed like a no-brainer outcome from the start. In January 2009, the Palestinian Minister of Government filed a submission with the ICC asking the Court to take jurisdiction over Israel’s actions in Gaza. But the Court’s own rules require that any matters submitted must come from a “State.” Since Israel is not a party to the treaty creating the Court (nor is the U.S. and 70 or so other nations), and since Palestine is neither a party nor a State, it seemed obvious to most international lawyers that the ICC had no jurisdiction over the matter.

This is precisely what Prosecutor Luis Moreno-Ocampo concluded at first, that he had no jurisdiction. But a few weeks later, he reversed field and said he wanted to think further about whether Palestine might have sufficient earmarks of a State to submit a case to the Court. And so the hunt for those earmarks began. Some argued, for example, that because Palestine walks like a state and talks like a state, it therefore must be a state. Only in the vagaries of international law might one describe such a legal argument as “teleological” and therefore be taken seriously. Others said that because some states interact with Palestine as a state, it must be a state.

But when you look at the list of nation-states that belong to the United Nations, Palestine is not there. Instead it is listed as an “observer” at the U.N. And when you review those who attended the meetings creating the International Criminal Court itself, again Palestine is not listed as a state, but rather as one of the “other organizations” in attendance. Indeed, Palestinian officials themselves have long admitted that statehood is their objective, not something they have already attained.

Yet the ICC Office of the Prosecutor spent three years pursuing a lengthy and, for a prosecutor, almost bizarre process of consideration. First, prosecutors entertained “submissions”, not only from parties but from anyone, really, who had something to say. Memoranda were filed by human rights organizations, NGO’s, academics and countless others, with many of these posted on the Prosecutor’s website. Then the Prosecutor invited eight international lawyers who had made submissions, to come to the Hague for a chat about the matter. If it’s difficult to imagine your local prosecutor holding afternoon tea sessions to discuss whether to prosecute war criminals, again welcome to what passes as the world of “international law.”

It is both interesting and important to understand why the Prosecutor took so long with this question. For one thing, the impulse of international organizations is inevitably to expand their jurisdiction. They want more power and influence, not less. Since the purpose of the ICC was to halt impunity for war crimes, genocide and crimes against humanity, the human rights organizations that were behind formation of the Court worry less about legal niceties such as jurisdictional rules and want broader jurisdiction. The Prosecutor himself may share those views but, at the very least, he feels pressure from those who founded this relatively new court in 2002, a court that only recently completed its first trial.

The Prosecutor also faces political pressures that he is only bringing cases against Africans and not those from other, more powerful countries. Indeed, virtually all of his early investigations have been against Africans and perhaps he needed to keep this case alive, if only to demonstrate some balance. Further, he may have been under pressure to keep his hand in the Middle Eastern peace process, holding the threat of prosecution over Israel’s head. And, the ICC could have been one more ticket for Palestine to punch in its effort to receive recognition from international organizations and move along toward its goal of statehood.

But in the end, all those political pressures could not find a proper legal argument to carry the day, and the Prosecutor had to admit that the question of statehood, and therefore the ability to bring cases to the ICC, was really a decision for the United Nations, and not for the Court. Imagine, though, all the time, effort, frustration, and political leverage that were invested in a decision that could and should have been reached three years ago.

To view the article please click on the link:  http://www.forbes.com/sites/realspin/2012/04/04/international-criminal-court-prosecutor-resists-palestinian-end-run/

The Prosecutor of the International Criminal Court Makes a Sensible, if Delayed, Decision (Advancing A Free Society) April 3, 2012

Posted by daviddavenport in Policy Articles & Papers.
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The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) announced today that it would not pursue an investigation of Israel for “acts committed on the territory of Palestine since 1 July 2002.”  This closes off, for now, an attempt by Palestine to draw the Court into its dispute with Israel over alleged war crimes in Gaza during Operation Cast Lead in 2008-09.

But there is an even larger story here about whether the relatively young Court (established in 2002) would seek to expand its jurisdiction and play a role in deciding whether Palestine is already a state.  To that the answer is “no, for now.”

The Minister of Justice of the Government of Palestine filed a submission with the Court in January, 2009, asking the Court to take jurisdiction of the matter and open an investigation.  But the Court’s own rules limit submissions to “States,” so from the beginning the key question was whether Palestine was a state for this purpose.

The Prosecutor, Luis Moreno-Ocampo, seriously entertained the question for three years, following a remarkable prosecutorial process of inviting outside submissions, posting briefs on the Internet, and hosting roundtable arguments in his offices in The Hague.  He seemed open to the possibility that the definition of “State” for purposes of the ICC might be different than a “State” in international law generally.  He spent three years looking at arguments that Palestine possessed this or that mark of statehood.  One sensed that he was under political pressures to open the doors of the Court more widely to take this case.

In the end, the Prosecutor said it was really up to the United Nations to decide what is a “State” and that, so far, Palestine was only treated there as an observer.  It thus becomes a political decision for the U.N., rather than a legal decision for an international court, which was surely the right answer all along.  The lengthy process for what should have been a straightforward decision reminds us of the dangers of these politicized and expansionist international courts.

To view the article please click on the link:  http://www.advancingafreesociety.org/2012/04/03/the-prosecutor-of-the-international-criminal-court-makes-a-sensible-if-delayed-decision/#more-5729

Urging the FCC to Tune In, Drop Out (Hoover Digest » 2012 no. 1 » Regulation) January 23, 2012

Posted by daviddavenport in Policy Articles & Papers.
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In announcing recently that the Fairness Doctrine would be wiped off the books, the Federal Communications Commission took one small step into the information age. Characteristically, the commission was decades behind the times, and it left other media regulation still stuck in the industrial age and in serious need of rethinking.

A major problem with government regulation of business is that it is based on markets and technologies as they exist when the rules are imposed. In the case of radio, this body of law has largely been the Radio Act of 1927, the Communications Act of 1934, and the Fairness Doctrine adopted by the FCC in 1949. There were fewer than three thousand radio stations in the country in 1949, compared to the fourteen thousand that ply today’s robust and competitive market.

The Fairness Doctrine required radio stations to air opposing points of view. So, for example, if a radio host or guest favored a particular policy, the station was obligated to air a message against. Perhaps this made some sense when a geographic market had few stations, but today, with satellite radio, Internet radio, and thousands more terrestrial stations, every point of view under the sun can find its way onto the air. For decades, the market itself has provided protection for minority points of view, so the primary question should be why it took government so long to catch up to market realities.

horse and carriage

If the Fairness Doctrine were enforced today, there would be no Rush Limbaugh, no Sean Hannity, no talk show hosts with a point of view. Whether you enjoy their programs or not, these radio talkers have rescued and re-energized talk radio. If a listener wants balance or fairness, he or she can simply turn the dial to another station whose talkers have a different point of view. Rather than diversity on every program, there is a diversity of programs and even a variety of distinctive stations and networks—a market that achieves the same fairness goals intended by the outdated Fairness Doctrine.

In the end, like many government regulations, the Fairness Doctrine had become a political football as much as an agency rule. The FCC suspended it during the Reagan years but didn’t take it off the books. Then for years, concerned about the rise of conservative talk radio, Democratic leaders in the House and Senate threatened to put it back in force. Finally it died as part of President Obama’s push to satisfy business that he was seeking to streamline government and eliminate unnecessary regulation. Even now, the moldering regulation doesn’t seem fully dead. Some of the Occupy Wall Street protesters, for instance, have called for reinstating it. Such is the life of federal regulatory schemes.

Taxpayers continue to provide up to 20 percent of public broadcasting’s budget. Some of its executives make more than the president of the United States.

What federal agencies in general, and the FCC in particular, need to be concerned about is whether federal regulations continue to make sense as markets and technologies develop. In that sense, eliminating the Fairness Doctrine was no better than a baby step into the information age. What about the equal time rule, a kind of companion to the Fairness Doctrine? It requires that if one candidate for an office appears on the broadcast media, other candidates must be given equal time. This rule also is anachronistic and has been so swallowed up in exceptions as to be meaningless. If Donald Trump had run for president, for example, his appearances on The Apprentice might require equal time for other candidates, unless the show were on cable television, which is a meaningless distinction in these days of cable and satellite TV. If a candidate sits down for a few minutes with Letterman or Leno, another exception for “news/interviews” illogically comes into play. Isn’t it time for equal time to go the way of the Fairness Doctrine?

And how about government subsidies and funding for public broadcasting? Again, the support may have made sense when there were only three or four television networks. If there’s a need for public broadcasting’s programs today, shouldn’t they compete for funding and airtime with everyone else? I find little justification for a nearly bankrupt government to spend money on television and radio programming when we live in a 24/7 media cycle. Yet taxpayers continue to provide more than $400 million for public broadcasting, roughly 15–20 percent of its budget, and some executives in that business make more than the president of the United States. Further, it drags the government directly into questions of political content, exemplified by the controversy surrounding commentator Juan Williams and the termination of his contract by National Public Radio. The bipartisan budget deficit commission recommended phasing out taxpayer subsidies to public broadcasting.

So, one cheer for the FCC for burying the Fairness Doctrine. But let’s hold off on three cheers until more work is done to align government policy toward the media with the market realities of the media age in which we live.

Special to the Hoover Digest.  Link to the article:  http://www.hoover.org/publications/hoover-digest/article/105206