Today at 11:00 ET I will be live on “Stand Up! With Pete Dominick,” joined by my good friend Eric Segall. We will be discussing executive power. I am also recording a segment on FantasySCOTUS tomorrow morning for the Jim Bohannow Show, which is syndicated nationwide to 500 stations. I’m not sure when it will air.
Judge Posner offered this rejoinder to Justice Holmes’s classic formulation of “clear and present danger”:
It’s a dumb phrase. A murky remote danger could be very great.
Harry Reid tells Politico that he doesn’t “want to go back” on Obamacare:
“I’m not going to go back,” Reid said. “I think it’s a wonderful legacy for him.”
Jack Goldsmith offers a detailed breakdown on Secretary of State Kerry’s desired AUMF. The long and short of it, is that it is wide-ranging, applies to unnamed “associated forces,” has no clear ending date, and is not geographically limited.
While Kerry resisted the notion that the administration should send Congress a concrete AUMF proposal, he did state the four main elements of what the administration prefers in an IS AUMF: (i) authority to use force against IS andassociated forces; (ii) no geographical limitation; (iii) no ground troop limitation; and (4) a three-year time-limit on the authorization, with an exception for an “extension in the event that circumstances require it.” Kerry was very vague on point (iv) but it sounds like he wants to maintain the Executive branch’s ability to extend the conflict beyond three years based on the President’s (as opposed to Congress’s) determination about the continuing threat posed by IS. That does not sound like much of a time limit, and certainly not one that requires new congressional authorization after three years.
In other words, it seems just as broad as the 2001 AUMF.
What the administration appears to be seeking is an open-ended IS AUMF akin to the one that Congress gave the President for al Qaeda and affiliates in the 2001 AUMF. In addition to the features noted above, the administration would like an “associated forces” extender but (apparently) not a reporting requirementabout covered groups or places. This would replicate the problem under the 2001 AUMF of Congress (and the American people) not necessarily knowing who we are fighting against, or where. It is also worth noting that Kerry envisions the proposed IS AUMF to extend very broadly geographically. When Senator Udall asked how Kerry’s outlined AUMF would “treat groups who have pledged their allegiance to the Islamic State, including, as of December 2014, groups in Algeria, Libya, Egypt, Yemen, and Saudi Arabia?,” Kerry responded: “They should be associated forces. They fit under that category.” All of these factors, taken together, amount to a desire for an extraordinarily broad IS AUMF.
As Goldsmith notes, this presents a stunning repudiation of the President’s NDU speech:
Pretty amazing coming from an administration whose Chief Executive said in his NDU speech 18 months ago (i) “Unless we discipline our thinking, our definitions, our actions, we may . . . continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states,” (ii) that he “look[ed] forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the [2001] AUMF’s mandate,” and (iii) that he “will not sign laws designed to expand this mandate further.” I view of Kerry’s testimony as the final repudiation of this element of the NDU speech, and as an acknowledgment that the “Forever War” is not close to over.
Kerry also re-asserts that the 2001 AUMF is sufficient authorization:
What About the 2001 AUMF? Kerry said a few interesting things about the 2001 AUMF. He argued that the 2001 AUMF extends to IS because (i) IS is the same group as al Qaeda in Iraq (AQI), which the United States fought in the 2000s, (ii) AQI was part of or an “associated force” of al Qaeda, and (iii) a mere name change from AQI to IS cannot destroy the 2001 AUMF authorization. The problem with this argument is that Kerry fails to note the organizational and other differences between AQI and IS, most notably the crucial fact that IS (unlike AQI) is not part of or associated with Al Qaeda. He kind of made this last point, and thus contradicted himself, when he said: “We acknowledge that there is a gap in time and a sufficient differential in what we’re fighting that the American people are owed a more precise articulation that meets the current moment.” Kerry also said that “we will support the inclusion of language in the new AUMF that will clarify that the Daish-specific AUMF rather than the 2001 AUMF is the basis for the use of military force. And I think that will give comfort to a lot of people.” But it shouldn’t give comfort unless Congress somehow (i) makes clear that the 2001 AUMF does not authorize force against IS, and (ii) repudiates the flexible “associated forces” rationale (or whatever it is) for IS being covered by the 2001, to make sure it is not applied to the IS AUMF to extend it to some distantly related group in the future.
Also, Goldsmith highlights the administration’s sophistry concerning the War Powers Act.
President Obama, who served on this committee for, you know, four years, and Senator Biden — then Senator Biden, now vice president — served in this committee for about — what is it? You know, 30 years, or near. Both are huge supporters of the War Powers Act, as I am. He’s lived by it, even in situations where he didn’t feel like he had to necessarily strictly set it up, he set it up. He always, you know, moved on the side of caution, and — and of — of compliance.
This simply isn’t accurate. It is more accurate to say that the Obama administration rendered the WPR’s 60-day limit “meaningless in many important contexts when it concluded that it did not apply to the Libya action.”
Goldsmith concludes:
The President’s leadership from behind on this issue continues to astonish me.
A quick search of the Westlaw Briefs database reveals quite a number of briefs filed on behalf of Sigram Schindler Beteiligungsgesellschaft mbH, the subject of the Court’s order to show cause.
Attorney Howard N. Shipley of Foley Lardner filed 2 cert petitions on behalf of Sigram:
A colleague contacted the Supreme Court Bar, and learned that Shipley was admitted on 5/19/14, roughly three months before he filed the cert petition in the Cisco case. A Westlaw search shows that these are Shipley’s only filings at the Supreme Court. He has filed three briefs before the Federal Circuit, all on behalf of Sigram.
Attorney Chid S. Iyer of Sughrue Mion filed a number of other amicus briefs on behalf of Sigram in several recent IP cases before the Court.
To give you a flavor, here is an excerpt of the Myriad brief:
Mathematics knows since centuries the need of an unquestionable basis for making precise statements: Here an “orthogonal coordinate system” usually serves as such a basis – often an “independent coordinates system” is sufficient. This court builds on this technique of Mathematics by its use of the term and notion “creative alias inventive concept”, in its above decisions, when asking for precise descriptions of properties of claimed inventions: Its “creative/inventive concepts” of an invention determine its state space exactly as the Mathematics’ “independent coordinates” of a system determine its state space (i.e. the space they both “span”).
Iyer has also filed a brief on behalf of Sigram before the Federal Circuit:
According to a Westlaw search, all of Iyer’s appellate briefs were filed on behalf of Sigram.
Iyer’s partner at Sughrue, Michael R. Dzwonczyk, filed an amicus breif on behalf of Sigram for the Federal Circuit as well.
There may be more, please send if you have any.
Update: Here are three briefs filed on behalf of Schindler in the Court of Appeals for the Federal Circuit:
Here is a section from the final rehearing petition:
SSBG is aware that putting this question to this Court3), while being aPetitioner before it, may be seen as being undue and/or foolish. Yet, SSBG needsthis question to be clarified [67,37,78], possible only as required by the SupremeCourt, for further investing into innovations for the US economy, i.e. into creating/developing/marketing a range of different innovations in advanced telecommunica-tions/IPR technologies. SSBG and its subsidiaries, together currently only a “smallcap company”, to this end invested in/for the US market already far more than 20 Mio US$ – on which totally US based and very large and internationally very successful necessarily quantities minded, hence less innovative, companies are supposed to leverage worldwide, up to SSBG’s business model – but had started this investment by about the year 2005, when the U.S. Highest Courts’ SPL precedents as to ETs and their foreseeable upcoming challenges of SPL precedents was seemingly trustworthy and predictable. It is extremely likely that similarquestions are at issue with any US innovation business company. This is a true argument for urgently clarifying the question put above.