Blog

Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

2020
2019
2018
2017
2016
2015
2014
2013
2012
2011
2010
2009

President Bypassing Treaty Clause For Climate Change Accord?

August 26th, 2014

The Times has a story suggesting that the President will enact sweeping changes to American climate change policy through a United Nations framework.

The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.

But it won’t be a treaty, so it won’t require 2/3 vote in the Senate. So what exactly is it? I’ve read the article, and I have no idea. Here’s how the Times introduces it:

To sidestep that requirement, President Obama’s climate negotiators are devising what they call a “politically binding” deal that would “name and shame” countries into cutting their emissions. The deal is likely to face strong objections from Republicans on Capitol Hill and from poor countries around the world, but negotiators say it may be the only realistic path.

Perhaps my knowledge of international law is a bit rusty, but what the hell does this mean?  Are “politically binding” and “name and shame” terms of art in modern international law?

The article elaborates, and says that this new agreement would expand upon a 1992 treaty:

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

How would Congress be “legally required to enact” any policies? Or is this saying the President would enact these policies himself? It seems the latter.

In seeking to go around Congress to push his international climate change agenda, Mr. Obama is echoing his domestic climate strategy. In June, he bypassed Congress and used his executive authority to order a far-reaching regulation forcing American coal-fired power plants to curb their carbon emissions. That regulation, which would not be not final until next year, already faces legal challenges, including a lawsuit filed on behalf of a dozen states.

And what happens if a court finds the President lacks such powers? Or, per Missouri v. Holland, does the treaty enhance the President’s powers?

What is clear, is that, once again, the supporters of this law–apparently including the President–are citing the gridlocked Senate’s unwillingness to support this agenda as a justification for this creativity.

“If you want a deal that includes all the major emitters, including the U.S., you cannot realistically pursue a legally binding treaty at this time,” said Paul Bledsoe, a top climate change official in the Clinton administration who works closely with the Obama White House on international climate change policy.

Lawmakers in both parties on Capitol Hill say there is no chance that the currently gridlocked Senate will ratify a climate change treaty in the near future, especially in a political environment where many Republican lawmakers remain skeptical of the established science of human-caused global warming. …

“There’s some legal and political magic to this,” said Jake Schmidt, an expert in global climate negotiations with the Natural Resources Defense Council, an advocacy group. “They’re trying to move this as far as possible without having to reach the 67-vote threshold” in the Senate.

This is asinine, because unlike the 60-vote limit imposed by the filibuster, the 2/3 requirement comes straight from the Constitution. This is not gridlock! Seeking a super-majority to ratify a treaty is a limit imposed by our Framers to ensure that the President did not get us into foolish treaties that lack bipartisan support. Of course, such trifles are of no moment for the President, who needs to correct this gridlock.

Update: Jack Goldsmith weighs in on this non-story:

I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to—probably to the delight of the White House.  A clue to the problem is found in the Times headline (paper copy, not digital edition), which says: “Nations Would Commit to Curb Pollution, in Nonbinding Deal.” A nonbinding deal can do many things, but it is not much of a commitment. Davenport then opens her story with this sentence: “The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress” (my emphasis). But Davenport goes on to say that nations will not in fact be compelled—at least not legally—to cut fossil fuel emissions. “President Obama’s climate negotiators are devising what they call a ‘politically binding’ deal that would ‘name and shame’ countries into cutting their emissions.” “Politically binding” is another way of saying “not legally binding.” i.e., it is a handshake.  Handshakes can matter in international politics, and “naming and shaming” based on political agreements can sometimes work (the Helsinki accords are a famous example).  But we don’t typically think of this form of international political pressure as “compulsion.” …

I seriously doubt that the President can lawfully (under the U.S. Constitution) commit the United States to international legal obligations of this sort and degree, beyond what is in the 1992 treaty. But much more importantly, even if what the President signs is somehow “legally binding” under international and even domestic law, that obligation wouldn’t force Congress to “enact domestic climate change policies” or to “channel money to poor countries to help them adapt to climate change.”  Nor, I think, would the President’s name on such an accord assist in shaming Congress into action. I doubt that future Congresses will be much swayed by “name and shame” pressure based on a legally controversial accord signed by a lame-duck President on a topic with strong domestic political salience.  Certainly the past does not suggest a happy future for shaming Congress in this way.  (I am definitely not saying that no future Congress will ever support global emissions reduction. Domestic politics can change, and can be influenced by international events.  I just think, to repeat, that a legally and politically controversial agreement entered in to by a lame duck president will not be the basis for the domestic change. It is conceivable, of course, that the Obama initiative will change the global politics of emissions reduction in a way that sparks domestic change; but again, that strategy has not worked in the past and is very speculative.)

 

Posner’s Greatest Hits in SSM Oral Arguments – “Pathetic,” “Ridiculous,” and “Absurd.”

August 26th, 2014

Early reports (here and here) suggest that Judge Posner was at his finest (worst?) today with his vitriolic questions to the Attorneys General of Wisconsin and Indiana, who were attempting to defend (unsuccessfully it seems) their bans on same-sex marriage. Here are the highlights:

I don’t think the lawyers could do any better.

Putting aside the merits of the case, Posner is a bully from the bench. I’ve followed all of the other arguments in these cases, and the judges, even those who disagree with the lawyers, managed to be courteous and respectful.

Update: Ian Milhiser at ThinkProgress transcribes a full exchange with Posner:

Posner: What concrete factual arguments do you have against homosexual marriage?

Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage] . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Posner: What experience! It’s based on hate, isn’t it?

Samuelson: No, not at all, your honor.

Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?

 

PACER Offers Terrible Explanation Why They Are Removing A Decade of Court Information

August 26th, 2014

Following up from my post this morning, where we learned unceremoniously that PACER would be dumping a decade of information off of PACER, the WSJ has obtained a statement explaining this idiotic move.

On August 11, a change was made to the PACER architecture in preparation for the implementation of the Next Generation of the Judiciary’s Case Management/Electronic Case Files System. NextGen replaces the older CM/ECF system and provides improvements for users, including a single sign-on for PACER and NextGen.

As a result of these architectural changes, the locally developed legacy case management systems in four courts of appeals and one bankruptcy court are now incompatible with PACER, and therefore the judiciary is no longer able to provide electronic access to the closed cases on those systems. The dockets and documents in these cases can be obtained directly from the relevant court. All open cases, as well as any new filings, will continue to be available on PACER.

Seriously? Obtained directly, by going to the court in person? What kind of horrible rationale is that.

And, since these documents can no longer be purchased why wouldn’t they offer these documents to be archived? My friend Mike Carver is trying to obtain the archived documents.

But that means it is much harder for the public to access historical records — and the lack of forewarning left some legal and technical experts reeling. Brian Carver, an assistant professor at University of California at Berkeley School of Information, says he was frustrated and disappointed by the change. Carver is a co-founder of nonprofit group Free Law Project, which recently partnered with Princeton’s Center for Information Technology Policy to maintain the RECAP platform — a crowd-sourced project which hosts free archives of documents others have obtained through the paid PACER system.Using a browser extension, RECAP users can see when documents are already available for free in their archive which currently stands at roughly 3 million court documents — and automatically upload documents that they pay for to that public archive.

Carver says their group would be happy to host the files publicly, and are reaching out the courts to see if that is possible. But he was still shocked by the lack of advance warning. “If we had known about it in advance maybe we could have done something to target these documents and archive them publicly,” he says. “It was really an announcement of an accomplished feat — we weren’t told until after this deed was already done.”

 I hope PACER doesn’t let this data go down the memory hole.

Update:  Todd Ruger writes at Legal Times that you can obtain the records by emailing the court! For the low cost of $30 per case!

Want to access a case filed in the Second Circuit before Jan. 1, 2010? You now must send an email or written request to the court clerks office to obtain the records. The cost: $30 for the entire file, which will be sent by email. (PACER costs are 10 cents per page. Opinions, however, are free.)

Final Version of “The 1st Amendment, 2nd Amendment, and 3D Printed Guns”

August 26th, 2014

The Tennessee Law Review has published the final version of my article, “The 1st Amendment, 2nd Amendment, and 3D Printed Guns.” Here is the abstract:

We are standing at the dawn of the next great industrial revolution. With 3-D printers people can print an infinite number of personalized and customized “things.” However, one manifestation of this bold new technology threatens to cast a specter on innovation: 3D printed guns. This article explores how efforts to regulate, or even ban 3D guns, must satisfy constitutional scrutiny under both the First and Second Amendments.The Second Amendment right to keep and bear arms includes a subsidiary right to acquire arms — what else are you going to keep and bear — which covers both the buyer, and seller in the transaction. Further, the seller has to obtain guns, including newly manufactured firearms. Thus, the Second Amendment supply chain protects a right to make arms. These constitutional guarantees preserve the right to acquire and make firearms, by 3D printer or other means.

Prohibitions on sharing and receiving information about 3D guns, in the form of CAD source code files, violate the First Amendment right to free speech. The fact that information about 3D guns is distributed in electronic format does not shield it from the Bill of Rights. Further, the “hybrid” First and Second Amendment right offers heightened constitutional protections when the government attempts to restrict speech about the right to keep and bear arms.

I concluded by offering a preliminary analysis of several proposals to regulate 3D guns. First, laws that prohibit the manufacturing and possession of 3D guns, without a showing that the weapons are highly dangerous, would likely be unconstitutional. Second, bans on individuals making and possessing 3D guns for personal use would represent an unprecedented expansion of gun control laws, as there are virtually no regulations on homemade firearms. Third, the application of the International Traffic in Arms Regulation (“ITAR”), designed to keep dangerous weapons and munitions out of the hands of foreign nationals is an an ill-equipped, and as applied unconstitutional means to regulate 3D guns.

 

 

The Second Amendment Right to Acquire Arms

August 26th, 2014

Despite the fact that the Supreme Court has held that we hve a Second Amendment right to *possess* a firearm, the DOJ and most state governments have continued to take the position that there is no right to *acquire* arms. Now, you may ask yourself, how is it possible to possess a gun, when you don’t already have one. And, as transactions go, acquiring arms entails the right of one party to sell/give the gun, and the other party to buy/receive the gun. It takes two to tango. I discuss this at length in my article on 3D-printed guns.

Through unique circumstances, both Dick Heller and Otis McDonald were attempting to register guns they already owned, but were illegal to keep functional under the law. The Supreme Court, in neither case, had the occasion weigh in squarely on whether or not the Second Amendment protects the right to acquire arms. Justice Scalia in Heller did say that Second Amendment should not “cast doubt” on “laws imposing conditions and qualifications on the commercial sale of arms.” You could (as the government has) read that to say that means acquiring arms is outside the scope of the Second Amendment. I read it differently–if the “sale of arms” was not a constitutional right, it could be prohibited altogether under the police power, and not just limited by “conditions and qualifications.” The need to qualify a right dictates the existence of the right in the first place.

In Ezell v. City of Chicago, the 7th Circuit seems to have read this language in a similar fashion. “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.” The key word is “acquire.”

Recently, a federal court in California reached a similar conclusion. California imposes a 10-day waiting period to buy a gun. However, this same waiting period applies even if a person has already registered guns in the past, or even those who have a concealed carry permit. A federal court struck down this law, as imposing a burden on the Second Amendment right.

Pivotal in the analysis, is the court recognized that the Second Amendment applies not just to guns you already own, but the process of obtaining new guns.

When the 10-day waiting period laws apply, they prohibit every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. One cannot exercise the 24 right to keep and bear arms without actually possessing a firearm. Cf. Andrews v. State, 50 Tenn. 165, 178 (1871) (“The right to keep and bear arms necessarily involves the right to purchase them . . . .”). Also, in some cases, due to additional costs and disruptions to schedules, the 10-day waiting period may cause individuals to forego the opportunity to purchase a firearm, and thereby forego the exercise of their Second Amendment right to keep and bear arms. Therefore, the 10-day waiting period burdens the Second Amendment right to keep and bear arms. 

The court also found that the “no doubts” passage from Heller only finds that certain “qualifications” are constitution, and other “conditions” are not. The 10 day waiting period is not lawful.

In comparison to Nordyke and a 10 plain reading of Heller‟s language, it is not clear to the Court that a 10-day waiting period would qualify as a commercial regulation. Defendant cites no comparable commercial laws that apply to other goods and that require an individual to wait around 10-days before completing a purchase. The Court is not satisfied that Defendant has shown that the 10-day waiting period is one of Heller‟s envisioned conditions and qualifications of a commercial sale.

I think this decision gets it right. The right to possess arms entails a right to acquire arms, which protects both the buyer and the seller. This right can be regulated, but it must be reasonable. Forcing someone who has already gone through background checks, and already has other licensed guns, to wait 10 days, is unreasonable.