A New Era of American Foreign Policy

 

A New Era of American Foreign Policy

 -Christopher Carroll

A new age is dawning in American foreign policy. As Congress’ summer recess comes to a close, groundbreaking decisions can’t be made in Washington. President Obama’s decision to involve Congress in any military operations in Syria, is one with profound implications for Syria and one that will reverberate for generations in American policy.

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A year after Obama’s famous “red-line” comments, the administration is now citing evidence that the Syrian government, led by President Bashar al-Assad, has used chemical weapons on their own people.

The announcement by Secretary of State John Kerry was immediately followed by wide speculation about the nature of U.S involvement in the conflict. Conjecture on the scope of military involvement ran rampant, especially given the United State’s shady intervention record recently in Iraq and Afghanistan and the David Cameron’s announcement that the parliament of the United Kingdom had voted down the possibility of U.K military involvement in Syria. Would Obama commit the United States’ military to difficult operations in an excruciatingly complex revolution without concrete goals and clear cut, comprehensive results? 

Obama, in an atypically shrewd act of political navigation, has relieved himself of enforcing his naive “red-line” comments. He has given Congress exactly what they are always clamoring for, more power and the final say in military efforts while simultaneously finding himself able to argue that he isn’t backing down. The President has saved himself from the attacks that surely were to follow his decision regardless of what is decided while providing Congress with what they have traditionally claimed they deserve.

President Obama has already received the support for military action. House Speaker Boehner (R. – OH), Majority Leader Eric Cantor (R. – Va), and the Senate Foreign relations committee have all approved of combat operations. This does not mean that it’s passage in the House is a sure thing. Members of Congress will have to publicly state their positions on the Syrian conflict, something that many politicians have been hesitant to do. Some congressmen, fearful of war-weary public repercussions, are likely to buck their party leadership. Others, more fearful of how history will judge them if they don’t take action in Syria, are more likely to approve the limited U.S military engagement. President Obama, meanwhile, is sitting back in political safety, letting the chips fall where they may.

Obama’s decision to turn to congress has major consequences in the international arena both inside and outside Syria. French President Francois Hollande, who, in France, does not need parliamentary approval to use the military and who has already expressed his willingness to follow the U.S into military action, may find that he has few options following the U.K and U.S precedents, forcing him to allow French parliamentary involvement (a major decision given the poor support military intervention has among the French public) in decisions regarding French military engagement. Additionally, Israel and Iran are closely watching this new congressional trend in American military action. While Iran watches to see if a new American military paradigm has been born, Israel looks upon President Obama’s action with apprehension, fearing that this new trend may negatively influence American willingness to help them in potential conflicts over Iran’s nuclear power program. A potentially new trend in American military use will certainly change the playing field between these two countries as both wonder whether or not Americans will continue to readily expend blood and treasure on foreign soil.

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The President’s decision has immense long term repercussions on the future of American foreign policy.

The War Powers Act of 1973 was meant to check the President’s ability to commit American military forces to armed conflict. Presidents are granted 60 days of military engagement plus 30 days of withdrawal from any action without Congressional approval. Unauthorized use of military personnel is technically against the law. However, that law has frequently been circumvented and even entirely ignored by presidents, making it now an accepted part of the “imperial presidency” that some feel endangers American structural integrity.

President Obama’s rejection of such action is shocking, all the more so given the lack of worldwide support for the Syrian opposition and worldwide pressure to act. Does this mean that there will never again be a Vietnam conflict or Iraq War disaster? Probably not. Does this mean the Iran/Contra affairs of the future will never again come to fruition? Hopefully. Will America, by deferring all military action to Congress, cease acting unilaterally in international crises? Doubtful. But rather than being remembered for budget and debt debates, Summer 2013 may be remembered for a shifting of government structure in Washington D.C.

Time will tell if we are indeed nearing the end of an era marked by American presidential military action. If this trend holds true, it will without a doubt be the legacy of Barack Obama’s presidency. Having entered office a constitutional lawyer and professor, the President has followed long, winding road through Nobel laurels and Wilsonian ideals. But, as he nears the close of his presidency, he seems to be becoming a Jeffersonian. The country and the world would best take note. American foreign policy is entering a new era.

Eric Holder Takes Up Arms

Eric Holder Take Up Arms

-Christopher Carroll

Attorney General Eric Holder is bent on addressing inequality in America. In a year that has proven difficult for the DOJ, Eric Holder is seemingly looking to make up for lost time.

Holder announced that the DOJ will file a lawsuit against the State of Texas over SB14, a “the strict voter identification law,” arguing that it violates Section 2 of the Voting Rights Act as well as the 14th and 15th Amendments of the United States Constitution.

Texas’ SB14, signed by Governor Rick Perry on May 27, requires voters to present valid photo identification at all polling places. Following the Supreme Court’s early summer decision to strike down Section Four of the Voting Rights Act, this type of legislation has proven to be extremely contentious. While proponents argue that bills like SB14 prevent voter fraud, adversaries charge that it unfairly discriminates against minorities, the elderly and the young.

Though Republican legislators in Texas, Governor Rick Perry included, complain that Holder’s decision is just the latest example of the “administration’s blatant disregard for the 10th Amendment,” many others allege that these laws are politically motivated. Many contend that the law, and others like it, are “adopted with the purpose, and will have the result, of denying or abridging the right to vote on account of race, color, or membership in a language minority group.”

Holder’s latest attack on inequality comes in the form of voter enfranchisement as states legislatures look to preserve political control and power. The new lawsuit follows Holder’s attack on mandatory minimums, long seen as overly harsh tools that disproportionately discriminate against minority offenders in the U.S. The United States of America is a country with incredible wealth and prosperity but with correspondingly cavernous gaps in inequality. These gaps will continue to widen as long as minorities, the needy, the young and the old are taken advantage of.

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Eric Holder seems to be trying to leave his mark on the office of Attorney General. Rather than being remembered as the A.G who signed off on phone tapping, Mr. Holder seems to be actively addressing racial inequality that has for too long gone ignored.

The attention is a welcome relief. Inequality of all types is rampant in America. Social, economic, racial, educational and vocational inequality is a cancer on our communities and economies. By suing Texas, Holder is reemphasizing the need to address voter disenfranchisement in American politics, an issue that is both a cause and symptom of unequal treatment. American governments and politicians should be emphasizing voter participation, not discouraging it, and we seem to, at this moment at least, have an Attorney General who wants to hold American leaders up to true American standards.

An Abortion Storm is Brewing and It’s Heading for the Supreme Court

An Abortion Storm is Brewing and It’s Heading for the Supreme Court

-Christopher Carroll

A constitutional storm is brewing in America and it is heading slowly for D.C. On Monday, a judge in North Dakota blocked the most restrictive abortion law in the country. The law, passed in March 2013, was deemed unconstitutional on the grounds that it “is a blatant violation of the constitutional guarantees afforded to all women.” This law or one like it, could someday find itself argued before the Supreme Court of the United States.

This law was just one of many passed this year by Republican lawmakers across the country. Arkansas, Alabama, North Carolina and Texas state houses have all passed restrictions on abortions and all have, or likely will, be blocked in state courthouses.

The Court actions are not at all surprising. As noted by US District Judge Daniel L. Hovland in his decision today, the North Dakota law, while not outright making abortion illegal, would be so onerous on women and healthcare professionals that it “will effectively limit a woman’s ability to obtain an abortion to a single day during the pregnancy’s fifth week.” These laws may not make abortion illegal de jure because of the Roe v. Wade precedence, but they do make it de facto an impossible procedure to get legally.

 

It is not surprising that the states  have been pushing these laws. The Supreme Court has recently paid increasing deference to state sovereignty whenever State Law conflicts with Federal law.  If Republican state houses continue to push aggressive abortion legislation, we likely will eventually see them argued in Washington D.C before the highest Court.

While it is impossible to know when a case would finally make it that far and what the composition of the court may be by then, it is likely that the Court will be confronted with questions that put it between a rock and a hard place. Allowing extremely restrictive abortion laws to stand would keep in line with their recent preference for state power. However, in doing so, they would be forcing Women to withstand increased scrutiny and obligation, forcing them to adhere to laws unlike those of women in more liberal states and unlike any man in the country. Would the Court ignore their recent abhorrence for the creation of separate classes of people?

When the time finally comes, it will be interesting to see which direction the Supreme Court takes. Their aversion for different rules for different people has been splashed throughout judicial history, but old and new. Just this year, Justices Ginsberg and Kagan voiced their concern for inconsistent treatment of citizens in the DOMA case. However, as explained in a post on July 4th, the DOMA decision was simultaneously a deference to State jurisdiction, choosing to let the states handle the issue.

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The Court’s were able to tread a very fine line in the DOMA case, managing to treat gay and straight couples the same way under the law while still maintaining their recent preference for a strong State. Will they manage to do that this time?

The fact that the new abortion restrictions are by design, and necessity, so specific will make it impossible for the Court to have it both ways. It will be extremely difficult to treat women in all states the same way and impossible to argue that men and women are being treated equally before the law. Unless men are going to be obliged to undergo X-rays and be restricted by law to certain places and times they can undergo vasectomy among other sensitive medical procedures, women and men will not be treated equally laws.  Though the states have passed these laws in a constitutional manner, the Court will have difficulty preserving their actions and power unless they ignore the inequality of the laws.

In the end, if these laws reach the Court, their constitutionality will come down to one question: which is more important, equal treatment before the law or state sovereignty. The answer surely is a rhetorical one: who are laws meant to serve?

The Politics of Lifetime Appointments

The Politics of Lifetime Appointments – As people ask about Justice Ginsberg‘s retirement, the idea of Lifetime Appointment is no longer insulating the Judiciary from political gamesmanship.

– Christopher Carroll

Lifetime appointments are not insulating the Supreme Court Justices from politics.  We should stop pretending that it does. Unusually intense national attention on the Supreme Court, driven by recent high profile Court decisions, has left many people asking a question with serious political ramifications: when will Ruth Bader Ginsberg call it a career?

The 80 year-old Ginsberg has led the liberal-leaning Justices since her appointment to the Supreme Court in 1993. She has been the champion of liberal ideology on the Court since the retirement of Justice Stevens in 2010, himself 90 years old when he hung up the robes. But with a democratic president in his second term, many a questioning when the best time for Ginsberg to retire might be whilst ensuring a solidly left-leaning Justice takes her place. Many people are starting to think that this could be that time.

Justice Ginsberg, to her credit, vociferously disagrees, believing that she will not step aside to accommodate President Obama’s desire to fill her seat so long as she is still mentally and physically “equipped to do the job.” But, as Jamelle Bouie astutely discusses in a July 5th (link#3) Washington Post opinion piece, the questions over Ginsberg’s retirement raise an undeniable problem, the practice of lifetime appointment doesn’t seem to work anymore.

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Lifetime judicial appointments have been a hallmark of American Supreme Court law ever since it was vociferously argued for by Alexander Hamilton in Federalist #78. The intention of the practice was to protect the Judiciary from the Legislative and the Executive branches of the government and the popular opinion of the public. Without strong systemic protection, Hamilton feared that Judicial Review would cease to be based upon the Constitution, compromising the important role the Supreme Court has played in the balance of power in American democracy.

Lifelong appointments have certainly contributed to the Supreme Court’s extremely stable, authoritative and legitimate history in American democracy. However, it is telling that very few nations around the world have followed the American example. Perhaps they foresaw what Hamilton and the Founders did not: that even with lifelong appointments, judicial review and judicial appointments are extremely political.

It must be noted that those people calling for Ginsberg’s retirement are making a political miscalculation. Those who believe that Obama, a centrist by the account of many liberals, will pluck a younger version of Ginsberg from the sea of qualified individuals have not been tallying recent political history and are wrong for two reasons. First, it won’t happen, and second, Obama isn’t the type.

First, passing Judicial nominations has been historically difficult for this administration due to the misuse of the filibuster. There are countless important seats on important benches left currently unfilled because nominees cannot get a vote. Harry Reid’s moaning and “nuclear option” threats have thus far fallen on deaf ears. Additionally, using the “nuclear option,” a method of changing filibuster rules in order to pass confirmations with a simple majority, would do more damage to the legitimacy of the Court than any other action.

English: Harry Reid (D-NV), United States Senator from Nevada and Majority Leader of the United States Senate (Photo credit: Wikipedia)

Silent Filibuster – Senate (Photo credit: DonkeyHotey)

Second, President Obama has shown time and again that he is both a centrist and uncomfortable with controversial nominations. Every time he has picked (or even been rumored to pick) a high profile and polarizing figure to high office, he has backed off in the face of Republican outrage – see Susan Rice’s Secretary of State saga and the President’s failure to aid Sec. of State Chuck Hagel while in the confirmation process.

These two oversights aside, the debate over Ginsberg’s retirement is showing the nation that lifelong appointments no-longer insulate the Supreme Court from politics. Today, the President’s attempt to gain as much influence as possible by appointing the youngest judges they deem qualified, resulting in a highly polarized judicial body. Today, Justices are being asked when they will step down, not because their mental facilities are failing but because it is more convenient for one or another political party. Today, if Hamilton were alive, he would cringe. Today, though the Judiciary was meant to be a-political, it has become hyper-political.

Is it time to amend the Constitution and abandon lifetime appointments? Is it time to institute an age limit for Justices? Is it time to institute an age minimum for Justices? Whatever one’s particular feeling about these ideas, none are likely to be accomplished in the near or even distant future. Amending the Constitution is a uniquely difficult proposition (link#7), made harder by the hyper-polarized nature of the Senate and the House. But acknowledging that we have a problem is the first step.

Justice Ginsberg remains an extremely capable, intelligent and brilliant adjudicator who, with luck, will continue to serve this country with distinction. If President Obama and Democrats are worried about who will replace her, they should instead focus on Congressional and Senate elections and leave the Justices charged with checking the other two branches alone. When Ginsberg needs to retire, she will. Democrats shouldn’t try to force out a brilliant mind simply because this moment is easy. This moment, with this President and with this Congress, might be exactly the wrong time.

The Court’s Inconsistant Week and the Strengthening of Hamiltonian Review

 

The Court’s Inconsistent Week and the Strengthening of Hamiltonian Judicial Review – The Supreme Court’s VRA and DOMA decisions conflict with one another yet simultaneously strengthen the power of the State and the “letter of the law” school of judicial review

-Christopher Carroll

 

 

This past week, the Supreme Court was dangerously inconsistent in the way it treated the rights of minorities and the marginalized, it’s relationship with Congress. The emphasis placed upon a Hamiltonian “letter of the law” style of judicial review and the underscoring of the legislative power of the States and government, comes at the expense of individual citizens.

The Court found a way to act extremely conservatively, even while handing down a traditionally liberal decision. The strengthening of Hamiltonian style of judicial review, one where the letter of the law rather than interpretation of the law  is paramount in Court decisions should strike fear in those who hope to see emphasis place upon the rights of individuals, rather than the rights of the state.

The Court’s decisions on the Voting Rights Act, Defense of Marriage Act and Proposition 8 were remarkable, both for what they had in common and for what they didn’t.  All three decisions were remarkably activist, placing the Court well into the traitorous political tides of American domestic policy.  All three decisions concerned the unequal treatment of marginalized citizens. All three decisions lent substantial respect to the sovereignty and rights of the States. However, the Court was inconsistent in its treatment of the rights of individuals and in their relationship with Congress.

The VRA decision was extremely nuanced. The Court struck down an integral portion of the law, arguing that though the bill itself is not unconstitutional and has even been, in the words of Chief Justice Roberts, extremely effective, the guidelines are outmoded and unfairly discriminate against states that have, in the estimation of the Court, sufficiently addressed the discrimination that marked the period before the bill was enacted.

Protect the Voting Rights Act rally at the SCOTUS (Photo credit: SEIU International)

By striking down section 4 and deferring to an incapable Congress, the Court has effectively killed the entire Act, knowing that the chances that Congress agrees to new guidelines are extremely remote. Slimmer than the chances that the Chicago Cubs win this year’s World Series.

In doing this, they have enabled themselves to kill an unpopular bill among the GOP faithful under the legitimate pretext of protecting State’s rights and respecting Congress’s constitutional obligations and responsibilities.

The DOMA and Proposition 8 decisions were quite different. The cases themselves could have been approached much the way that the preceding VRA case was. The Court could have deferred to the law passed by Congress and a democratic President. The Court could have refused to rule on the cases, instead claiming that the plaintiffs did not have standing. Instead, the Court was able to strike a perfect balance between State and individual rights, while simultaneously rejecting past Congressional action and removing power from them.

As I wrote last week, the Court could have done serious damage to the progress towards marriage equality seen over the last decade. Had they gotten far in front of the nation, the resulting repercussions and conflict could have permanently damaged the movement, much the way Roe v. Wade has damaged a woman’s right to abortion in this country.Though the Court’s failure to assert that the marriage equality is a Constitutionally protected right has been poorly received by some,  the restraint shown by the Court is what makes the decision strong and inconsistent with the VRA decision just days before. By only giving federal rights to those couples legally married and letting the States arrive at marriage equality in due course, they have struck a balance between individual rights and state rights that was not accomplished in the earlier VRA decision.

The Court’s inconsistency in it’s treatment of both individual rights and of Congress, and its consistently conservative treatment of state rights, should dictate how issues are brought before them and how marriage equality activists should attempt to effect their agendas. Regardless of the issues at hand, in this political climate and with this conservative Court, the battles must be fought in the State legislatures. Today’s Court is far from socially activist or liberal, but is instead extremely conservative in it’s treatment of federalism, though is increasingly becoming more socially liberal within it’s conservative framework.

Alexander Hamilton. (Photo credit: Wikipedia)

In the end, the DOMA and Proposition 8 cases, though making liberals happy, represent a strengthening of the conservative ideology of today’s Supreme Court, strengthening Hamilton’s “letter of the law” vision of judicial review and weakening former Chief Justice Warren’s. Whether that is a good or a bad thing depends on your opinion about the place a Supreme or Constitutional Court should hold in society. There are pros and cons to both schools of thought, but the marginalized in our society should be weary, especially when oppression and popular public opinion coincide.

Caution: The Shrewd Form of Judicial Activism

Caution: The Shrewd Form of Judicial Activism

-Christopher Carroll

The highest profile Supreme Court decisions of the year are fast approaching. Decisions on the constitutionality of the Defense of Marriage Act (DOMA) and California’s Proposition 8 are due next week.

At this moment, the justices are contemplating, discussing and debating such questions as standing, ripeness and merit of both cases, which is to say nothing of the issues of application of the 14^th amen

Rally for Marriage Equality (Photo credit: vpickering)

dment, equality, state sovereignty and judicial precedence implicated by these issues. At the same time, those justices inclined to rush progress forward must consider the best interests of the nation and the same-sex marriage movement. Hopefully they will realize that addressing these two cases with caution and restraint will be an extremely shrewd decision.

The justices certainly are aware of the effect that the holdings, dicta and dissents written in their hallowed chambers will have on society. They certainly are aware that they can have both a minor or major impact on the direction of society and speed of change in the country. But caution must be taken. On the one hand, if they get too far in front of the public on the immensely important and difficult issue of marriage equality, they could cause cultural and societal strife and backlash, thus crippling the natural progress witnessed in America of the past 50 years. Yet, on the other hand, if they stay too far behind, they may slow down or even stop the country’s steady march toward equality.

Though Justices are supposed to divorce public opinion and custom from judicial review, on particularly important cases they must find a way to bear cultural practice, tradition and habit in mind, even if through disguised means.

Courts around the world must at times consider the public opinion, practice and culture. In South Africa, the Supreme Court has had to be very careful in examining laws and cases that bring common law and cultural standards and tradition into conflict. The famously important Supreme Court in India has taken Public Interest Litigation further than any other in an attempted to bring equality to all social and economic levels of Indian society, especially when cultural norms have prevented progress. Here in the U.S., justices have realized that an activist court can be both a boon for the country (see the Warren court decisions) and a danger.

Justice Ruth Bader Ginsburg has suggested that the 1973 Roe v. Wade case was mistimed. “Its not that the judgment was wrong, but it moved too far, too fast,” explained Justice Ginsburg at a Columbia Law School symposium in 2012. The speed Justice Ginsburg alluded to likely led to the incessant and acrid debate over abortion that has followed. Perhaps, Ginsburg would argue, her predecessors could have found a way to encourage progress on the issue while not going so far as to declare abortion constitutional across the entire country, regardless of whether or not the public was ready for it culturally. Perhaps, had they found the correct balance between progress and cultural practice, the country would have been spared the infighting Roe v. Wade has spawned in the decades that have followed and perhaps abortion would not still be such a divisive issue.

English: Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States (Photo credit: Wikipedia)

Nobody can say for sure what would have happened court acted more cautiously in 1973. However, all signs seem to suggest that abortion was going to become an accepted part of American society. Indeed, by the time the court had taken the case, society was already well on its way to adopting it. If Justice Ginsburg is correct, the courts involvement was as detrimental as it was beneficial, and we have paid the price for the courts inability to show restraint.

Today, marriage equality is following a similar path. The gay and lesbian community is slowly becoming an accepted, if not yet always welcomed, part of society. Gay marriage is quickly Marriage equality is becoming increasingly accepted in the United States, evidenced by the growing number of states (as of now 12 states plus the District of Columbia) that have embraced same-sex marriage. Though some portions of the country seem to be lagging behind others, the issue seems to be making slow yet steady progress. It seems that Marriage Equality will become a part of America with or without the courts help. Justice Ginsburg’s caution may well be right on point. The Court can help this immensely important issue move forward, and it could hurt it irreparably.

The Justices must decide how involved they want to be in American society. The fact that Supreme Court justices are unelected is an obvious strength for American democracy and for the Court as an institution. However, it simultaneously makes the Court vulnerable to questions of legitimacy when it wades through public policy.

Forcing cultural change on others is always a difficult task and usually results in resentment and anger if not outright rejection and conflict. The United States Supreme Court, unlike the courts of India and South Africa, must approach judicial activism with extreme caution in matters as fragile and contentious as marriage equality and abortion.

The American Judicial system has tradition of its own, and breaking from it in too substantial a way and too suddenly, would only serve to de-legitimize the Court and set marriage equality backwards, perhaps crippling it for good. Our country must embrace our gay brothers, sisters, friends, parents and neighbors and we must ensure that every person is treated with the same dignity and respect regardless of their sex, race, or whom they love.

Caution must be observed. Conservative, rather than unrestrainedly exuberant and progressive, action must be taken. Change must be slow and steady. Only then will it win the race.