Defending Jack Bauer of Jurisprudence

Yoo kept us safe
Orange County Register, March 6, 2009, at Local 17

I find it disgusting that someone who has dedicated a great portion of his professional life to public service – having served in all three branches of government – now has to worry about the same government possibly coming after him with criminal charges for nothing more than political expediency ["Man behind the memos," Front Page, March 4].

George Bush did at least three things right: two of them sit on the U.S. Supreme Court today, and the third is that he kept us safe after 9/11. Much of the praise for the latter achievement belongs to the likes of John Yoo.

"Unitary Executive" and the Constitution

Los Angeles Daily Journal, Jan. 8, 2009, at 6

Unitary executive" is one of the most misused phrases of the past eight years ("Obama Faces Key Tests on Executive Power," Dec. 26, 2008). For example, recently, Vice President-elect Joseph Biden got it wrong by defining it as "meaning that in time of war essentially all power, you know, goes to the executive." This is especially bad given the fact that Biden fancies himself a constitutional scholar; periodically teaching a seminar on the subject at Widener School of Law.

Justice Antonin Scalia's famous dissent in Morrison v. Olson, 487 U.S. 654 (1988), is probably the best interpretation of the theory, which holds that executive power lies with the president, and that no "person whose actions are not fully with the supervision and control" of the president can seize it. The issue in Morrison was the law that provided for the appointment of an independent counsel. More specifically, the court faced the question of whether, via a statute, Congress can create an executive office that is not under the direct control of the president. Scalia was vindicated on this subject when Congress refused to renew the statute after the Clinton-Lewinsky fiasco and allegations of overreaching by Kenneth Starr. Or as Justice Samuel Alito pointed out in his confirmation hearings, "all federal executive power is vested by the Constitution in the president." Insofar as some may think that the "unitary executive" theory stands for the proposition that the president is above constitutionally enacted laws, as I think Biden does (at least during wartime), they are certainly in the minority.

The first line of Article II of the U.S. Constitution states, "The executive power shall be vested in a President of the United States of America." Does "the executive power" mean "all" of the executive power or just "some"? Compare that with the more limiting language of Article I: "All legislative powers herein granted shall be vested in a Congress of the United States." There is a difference, and it appears the Founding Fathers knew how to go about limiting powers when they wanted to do so.

To the extent that Congress wants to limit this power, it will need a constitutional amendment.

Media's liberal bias revisited

The Art of the Campaign
Time, Oct. 13, 2008, at 13.

Joe Klein claims there is little "moral equivalency" between McCain's brand of lying and Obama's, with the former's ranging anywhere from the "annoying to the sleazy" [Sept. 29]. And Klein could think of only one instance when Obama crossed the line (though never calling it a lie), whereas McCain has turned it into an art form. Absent from the list of Obama's "lies" is his declaration that McCain actually is O.K. with the war in Iraq continuing for 100 years if need be. That pronouncement far exceeds any exaggerations from the McCain camp.

The media's love affair with Obama is well documented. Nevertheless, TIME magazine should at least attempt objectivity.

Why Iran will not attack Israel

No attack on Israel
Washington Times, Sept. 24, 2008 at A22.

We are almost always in agreement with Thomas Sowell ("Idols and Crowds," Web, Commentary, Saturday). However, his views on the possibility of Iran attacking Israel are misplaced for the following reasons:

1) Islam's third-holiest site - the al-Aqsa Mosque, including the Dome of the Rock - is in Jerusalem, and therefore, Iran would not seek its destruction. Remember that the entire country of Israel is smaller than New Jersey. Even a nuclear bomb dropped on Haifa - the biggest city in northern Israel - would mean disaster for Jerusalem; 2) A nuclear attack by Iran would mean nuclear retaliation by Israel, the United States and its allies; 3) Iran has yet to pre-emptively attack another nation.

So, contrary to the rhetoric, Iran will not attack Israel, with or without nuclear weapons.

Reminded of Harrison Bergeron

Canvassing Fairness
Washington Times, July 22, 2008, at 24.

If the Fairness Doctrine ("Keep free speech free," Editorial, July 11) makes it onto President Bush's desk for signature, he should sign it immediately. With Sen. Barack Obama raising more money and spending more on advertising, this will give Sen. John McCain an opportunity to rebut everything via a commercial of his own - even if he cannot afford it. That is only "fair," after all.

I am sure this government-mandated "Air America" will be as popular as the original and destined to the same fate.

More on Executive Power

Who Decides Whether We Go to War
Washington Post, July 15, 2008, at A18

Discussing the War Powers Act, David S. Broder wrote that "its constitutionality is suspect." Many constitutional scholars share that view. Nevertheless, Mr. Broder supports the War Powers Consultation Act proposed by former secretaries of state James A. Baker III and Warren Christopher. It is not entirely clear, however, why the president can be forced to "consult" with Congress with regards to executive decisions but cannot be bound by Congress's time limits.

Congress already has the power of the purse, and that is more than any piece of legislation could offer it.

Assisted Suicide

Caution on right to die
Los Angeles Times, June 28, 2008, at M2.

Re "A personal battle over right to die," June 22

If the issue of assisted suicide was simply about autonomy, personal choice and respect, then it would be an easy call: Let the terminally ill die with dignity. Unfortunately, other influences could affect this choice.

Insurance companies could have an incentive to "assist" terminally ill patients end their suffering. It is no doubt cheaper to prescribe a lethal dose of barbiturates than to manage a patient's suffering for months or years. Also, there could be self-imposed pressure to "choose" death to reduce the financial burden and, possibly, maximize inheritance.

Any assisted-suicide law must be carefully drafted to minimize the risk of outside influence.

Passport release article revisited

Passport Release
Riverside Lawyer, July 2008, at 10.

An updated version of my "expert advice" column, "No Pay, No International Play," originally published in California Lawyer magazine in Sept. 2005, was published in this month's Riverside Lawyer. In addition to updating the article, I also included an insert discussing other changes to federal law affecting child support.

Here is the full text of the insert:

Recent Changes to Federal Laws
Servicemembers Civil Relief Act – Servicemembers who enter active duty status may be eligible to have the interest on their pre-active duty debt reduced to 6 percent. 50 App. U.S.C. § 527 (see also Cal.Fam.Code §§ 3651(c)(4) (“ . . . no interest shall accrue on that amount of a child support obligation that would not have become due and owing if the activated service member modified his or her support order upon activation to reflect the change in income due to activation”), 3653 (court has discretion to consider activation date in setting commencement date of any modification), 17440, 17560(f)(1)(B)(client should be referred to the local child support agency for a compromise if welfare arrears owing are “as a result a decrease in income when an obligor” entered active duty).

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 – The automatic stay no longer applies to collection of “domestic support orders” for cases filed on or after October 17, 2005. 11 U.S.C. § 362(b).

Citation to unpublished decisions – Federal Rule of Appellate Procedure 32.1 has been amended to require all federal appeals courts (and presumably district courts) to allow citation to their own unpublished (or nonprecedential) opinions issued on or after January 1, 2007. Limitations: only opinions issued on or after January 1, 2007 can be cited and, practically speaking, they are still non-precedential, i.e., one would only cite such a case in the absence of a published opinion on point.