Nice point on federalism.

On the second question, I don’t think that John is right to ask the Supreme Court to steer clear of these issues.  

To be sure, they don’t have to take many state diversity cases, but the private law issues are often embedded in federal statutes and federal constitutional law claims, so that there is really no place to hide. Bankruptcy, securities regulation and taxation are all federal subjects, and they are all parasitic on private law principles.  The Court has to take these cases.  

It only shows that the range of cases puts incredible pressures on the Justices.  One way to relieve this pressures is to have term limits on Justices, which will put the pendulum back toward younger Justices for shorter terms.  That proposal requires a constitutional amendment.  In my view it is an important institutional reform because rotation in office is a spur to higher levels of performance.

John makes two points on his last post.  The first that the Justices can be nudged left by the media is certainly true in some cases, but it is definitely false in others.  What is striking therefore is that all the drift is in one direction, not that it is universal.  I cannot imagine the story that could move Justices Scalia or Thomas to soften their position.

There are of course conservative media like the Wall Street Journal. Indeed, with the blogosphere the division of sentiment is getting closer than it once was.  So perhaps there is some other explanation for the shift.

Mine is that at the Court the Justices are constantly peppered with a barrage of cases that are not random draws from the urn. They usually involve cases of serious injustice to individual litigants, and that in turn can easily shift the attention from long-term indirect effects to short-term considerations that focus heavily on the case.  It takes a strong theoretical bent to fight that tendency, and the Court has so many new and difficult issues that time for speculation about general theory is scarce, and thus the bias helps move the needle. [Continued]

Just to follow the thread, it is really difficult to see exactly what happened all the way around, but from what I have seen the students were engaged in a bit of taunting to the police, but no act of aggression against them at all, at least as far as I can see, and certainly nothing that seems to justify the use of pepper spray as a public response to juvenile rudeness.  There was certainly no threat of property destruction. Indeed the main object of this protest was to bait the police into acting stupidly, which they did.  This crowd was a bit more raucous than appeared from the still shots that I had seen but nothing that justified the use public force.

I took a quick look at the correspondence and think that we are a very long way from a constitutional crisis.  There are no issues of principle here, and no claim of executive privilege.  The issue is over the breadth of the subpoena where the White House counsel Kathryn Ruemmler has said that an approach that focuses first on the direct correspondence between the White and Solyndra should come first.  In general I favor such staged discovery proceedings.  To be sure, there is a lot of uncertainty as to what has gone on, but this situation will be ironed out by means far short of any arrest of the President, which would provoke a constitutional crisis that would dwarf anything that had to do with Solyndra.

My sense is that most of these comments express the right kind of unease like Mendel and Bruce.  They are unhappy about the necessity of the killing but accept it nonetheless.  The comments also reveal this constant tension.  If you capture and enemy combatant, you cannot kill him.  But if he is at large, you can.  That is, however, true in all cases, not just this one.As for the treason issue raised by Adam, my sense is that the United States has the option to try for treason those who do not renounce their citizenship.  I don't think that treason rules should aply to those who renounce before they commit various acts against the United States.  I do not think, but don't know for sue, that al-Awlaki renounced his citizenship.

Citizens do have more rights (and a few more obligations, e.g. draft and trial for treason).  But the key differences are these:

• Aliens cannot vote as of right, they cannot own property as of right, and they cannot remain in this country as of right.
• But by the same token, they cannot be victimized by confiscation or arbitrary arrest.

This case is on the personal liberty side, and if the alien can be struck down, so too the citizen.  It is one of those odd quirks of late that the due process says not a word about war time conditions.  Habeas is directed to that issue, but that privilege does not apply to combatants, whether citizens or no.

On this issue, John and I are as one.  The key point to note about the constitutional protections afforded under the due process clause is that they all apply to persons, which clearly include aliens.  If we owed some kind of judicial process to Anwar al-Awlaki, then we owe it to those who are not citizens, which means that we can only run missions that capture with a view toward civilian trials, which is unheard of anywhere in the history of war.  Nor should we regret this conclusion.   Al-Alwaki has taunted the United Statse at every turn and has sworn destruction.  Surely it would not be unreasonable to say, if it mattered, that he forfeited any protection that his citizenship status conferred on him.

What should be done here is to congratulate everyone from President Obama on down for not losing sight of the central consideration in these cases. We are not sworn enemies of al-Quada.  They are sworn enemies of us.  Were they to renounce force, we should, and would, renounce it instantly as well.  But the deadly game of war cannot be conducted under two sets of rules.  

One only hopes that the same logic would apply with respect to Hamas, Iran and Israel.

The third reason is, why think that the administration thinks from a political point of view that it is so bad to lose before the election?  For one thing it takes an unpopular issue off the table, and allows the administration not to figure out how to control the great expenditures that come from this "cost saving" measure.

In sum, this could backfire, but if I were in this position, I think that I would weigh the odds as the administration did.

When it comes to political strategy, it is always six of one, half a dozen of the other.  The strongest reason to bring the case now is to keep control over the litigation.  The Obama administration knows all too well that it took a dive on the Defense of Marriage Act, and may well think that the next Republican administration would do the same.  If so, the Obama administration's decision to bring ObamaCare before the Supreme Court need not be a sign of confidence that it will win, but rather a sense that the odds are incrementally better if it is in control of the litigation than if it passes to another administration.  On this view, the preemptive strike is best understood as a damage control action.  A second reason for taking the plunge now is that the administration has to be worried about the pace of implementation of this complex law if there is uncertainty as to whether it will survive.  Right now it is the law of the 11th Circuit which could lead to some resistance to cooperation with the federal government. Taking it to the Supreme Court negates these counterstrategies.

If the choice were that black and white, your case would be very strong.  But there are real issues about the causation chain. The information you get could be worthless, and moreover, it could embolden others to take up arms against us.
I am not normally a movie buff, but the point in the movie Rendition did strike me as real.  Torture someone who has no secret information, and you could get the worst sort of responses just to stop the torture.  There is no way to give the interrogator what he wants if you simply do not have that information.

I am as worried about the effect that the use of special treatment does to the U.S. and our institutions.  I think that the treaty process will work fairly well either way for those nations that refuse to sign face huge public relations issues of their own.

You capture that I am of two minds on this issue precisely because I do not have good evidence of the on the counterfactual. My presumption runs in your direction. But I am open to persuasion.

I could not contain my response to 200 words, so you can find my response here.

It is a sad irony that the greatest risk to civil liberties comes from those who are so confident in their vision of rights and wrongs that they are quite willing to trample on the rights of others.  It is another reason why it is imperative to clip the wings of the federal government.

What is so troublesome is how quickly the Office of Civil Rights forgets the importance of process when it is in the driver’s seat.  It is bad enough that it displays such appalling judgment on the risks of error.  It is worse still that it has so much confidence in its own deplorable judgment that it mandates that the preponderance of evidence standard be used by institutions that have a better sense of the relevant issues in this case.  The risks here are legion because there is no doubt that once the bar is lowered on the ultimate bar on proof, other safeguards will disappear as well.  Will there be cross-examination of accusers?  Of course not, after all they could be humiliated. Will there be a right to be represented by counsel?  Not when this is just an intimate search for the truth.  Will there be a right to appeal? Probably, but only to the people who support these truncated processes in the first place.