Archives for April 2011

 Anthony Kammer

On April 24, the Guantánamo files, a cache of leaked documents containing dossiers on 759 detainees were made available to the public via a number of major news outlets and through the Wikileaks website. The Obama Administration’s early response is available here. Both the revelations of the documents themselves and way the leak was published are proving to be fascinating and important developments.

The documents–memoranda from JTF-GTMO, the Joint Task Force at Guantánamo Bay, to US Southern Command in Miami, Florida–have revealed information on detainees, on U.S. information-gathering practices, and on the conditions at Guantánamo.

[Read more…] about Opening the Guantánamo Files

 Daniel Rosenthal

In a dramatic and potentially groundbreaking move, the federal government has taken on Boeing, one of the largest and most important companies in the United States, for labor law violations.   The government has charged Boeing with violations in connection with its decision to build a new plant in South Carolina and thereby reduce production at a unionized plant in Washington.  Filed by the National Labor Relations Board last week, the complaint demands that Boeing maintain its full operations in Washington – effectively requiring it to shutter its nearly-complete new plant.

[Read more…] about Federal Government Versus Boeing

Zach Luck 

Wikipedia has a great list of all the “[fill-in-the-broad-policy-concern] Czars” here.  Obama has already handed out at least 37 Czar titles.  With all these Czars running around, is it possible that the first Director of the Consumer Financial Protection Bureau (CFPB) might be the first real federal Czar of anything?

By “real Czar” I clearly don’t mean an absolute ruler of the late-medieval Slavic variety.  I just mean a single policy maker with significant power over some policy area, who faces relatively limited outside control and oversight.  That’s what the term implies to me – someone is the “Drug Czar” because they hold lots of power over U.S. drug policy.  This conception of what the Drug Czar can do, is, of course, not really true.  Being a federal Czar of something is more like being anointed the “organizer” or “point-person” for that issue, but “Czar” sounds pretty good, so we run with it.

So how is the CFPB job our first real Czar?  The agency directorship has two characteristics that rarely come together in administrative agencies: 1) a single head for the agency and 2) that agency head (the director) is removable only for cause during a 5 year term—meaning the President can’t fire the person at will to replace them with a political ally.  Both single heads of agencies and for-cause removal provisions are very common, but they rarely appear together.  Think through some federal agencies you’ve heard of and they will fall into one category or the other: the Federal Reserve (multi-member board, for cause terms), Federal Trade Commission (multi-member board, for cause terms), Environmental Protection Agency (single-head who gets booted by each new president), Occupational Safety and Health Administration (same).  Removal only for cause does not make an agency head entirely unaccountable.  Among other checks, Congress can always strip away agency funding.  But it does give the director a lot of independence from the sitting president, especially when appointed by a president of the opposite party

Consumers need a strong, independent, and nimble CFPB, focused on consumer protection.  Is a single agency head the best path to this goal?  Jean Noonan, who was the Associate Director of the FTC’s Consumer Protection Bureau, persuasively argues that a compromise to put Elizabeth Warren at the head of a multi-member board could be a good deal for everyone.  She argues it would put the right person in charge of the panel now, and lower the chance for radical shifts in agency policy or significant periods without authority in the future.  While I would be happy to see Elizabeth Warren get confirmed to run the agency by herself, I am nervous that the next Czar to come along might be a lot less concerned with protecting consumers.  That’s the danger with Czars; maybe you like this one, but what about the next guy?

Jake Laperruque 

Last month, I discussed how the presidential campaign is moving slowly, with no Republican candidates formally entering the fray.  Since then, more potential candidates have formed exploratory committees, but with just nine months remaining before the Iowa Caucuses, there is still not a single official candidate for the nomination.  However, the website of one would-be contender reveals a possible reason why some might be waiting.

Typically, candidates will register the web domain of their name, and use it as a campaign website.  Jon Huntsman, however, does not have this option.  Huntsman – the former Utah governor and Ambassador to China – has emerged as a likely presidential candidate after resigning as Ambassador and returning to the United States.  However, rather than a strong campaign message (such as Newt Gingrich in front of stock photo or T-Paw just being T-Paw), if you go to jonhuntsman.com, you’ll find something unexpected:  A letter from Huntsman praising Obama, with a valentine-themed border pushing the attack-from-the-right that Huntsman is too cozy with the Democratic President.  What you won’t find on the website is any individual, organization, or campaign taking credit for the attack.

[Read more…] about Wild Wild Websites

Yevgeny Shrago

Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals visited Harvard Law School yesterday to discuss his recent blistering dissent in a Fourth Amendment case.  In United States v. Pineda-Moreno, the Ninth Circuit weighed in on the growing jurisprudence surrounding police officers placement of a GPS tracker on a suspect’s car without a warrant. The three judge panel hearing the case held that this did not violate Pineda-Moreno’s Fourth Amendment rights because he had no reasonable expectation of privacy for the underside of a car parked in his driveway. Judge Diarmuid O’Scannlain reasoned in his unanimous opinion that if a neighborhood child could place the tracker, so could the cops.

Chief Judge Kozinski vehemently disagreed with the panel’s “wayward child” standard, pointing out that such a rule gives one expectation of privacy for those wealthy enough to afford enclosed garage parking and another for those reduced to parking on the street. Chief Judge Kozinski accused the panel (and implicitly the entire judiciary) of “unselfconscious cultural elitism” for failing to understand the divergent situation. Although Kozinski’s attack on his fellow judges’ reasoning provided a powerful counterpoint, HLS Professors Jeannie Souk and Charles Fried suggested a different tack for understanding the decision: letting the police be more effective at doing the jobs they have a constitutional right to do anyway.

[Read more…] about The Fourth Amendment and Income Inequality

Jessica Jackson

Last night I had the pleasure of seeing President Obama speak in person at the San Francisco Masonic Center.  During his hour-long speech, the President touched on several points, including the legislative accomplishments of the last two years and the issues he hopes to work on in the next few.  The speech was incredibly inspirational, but there was, in my mind, one point of concern, which came when the President discussed the possibility of the Health Care reform legislation never reaching implementation.  Since making its way through the Congress, the Health Care bill has been litigated in several states.  These legal battles should send a very clear message to the President: If you want all your hard to work to pay off, you’ve got to fill the judiciary.

Currently there are 92 vacancies in the federal judiciary out of a total 875 seats, a problem recently discussed in an HLPR article by Michigan State professor Brian Kalt.  With only 46 seats pending nominations, one has to wonder why filling our judiciary is not a higher priority.  Whether this problem stems from a lack of judicial nominations from the white house or a refusal to push confirmations on the senate floor, the judicial vacancies have reached a point of crisis with hundreds of Americans being denied proper access to justice.

[Read more…] about Obama’s Judicial Nominations Problem