Owens Rhetoric

Lunch on the rocks

Disinterestedness, of the good sort

Stanley Fish writes for today’s Times. The column rightly, to my thinking, notes that the head-administrator at an academic institution ought to restrain from taking political-like stances:

The obligation of a senior administrator is to conduct himself or herself in such a way as always to bring honor and credit to the institution he or she serves. Just what this general imperative requires will vary with the particular situations an administrator encounters, but at the very least we could say that an administrator who brings attention of an unwelcome kind to a university is probably not focusing on the job. He or she may be doing some other job – speaking truth to power, standing up for free speech, protesting against various forms of injustice – and those jobs may be well worth doing, but they belong to someone else.

I agree; though I got the hunch that Mr. Fish sounds more controversial than the point of his lines.

After reading the piece, isn’t he arguing for disinterestedness? Such behavior, or lack thereof I reckon, is the hallmark of the academic pursuit; and seems to be the point of an academic administrator’s job–as Fish would say.

Any event- the disinterestedness to which we aspire to is that condition wherein we can think of a subject, listen to and understand the inputs of information (arguments from different perspectives), and make sound conclusions unaffected by prior-held convictions. That disinterestedness (free from the interest of bias) is the academic standard from which Columbia’s president fell recently (in remarks preceding Ahmadinejad’s talk.

** NB: Despite an appallingly long hiatus (which was entirely my own fault), Andrew has kindly let me resume my occasional guest posts on Owens Rhetoric. Thanks, APO! ~ A grateful Lily

Polygamy Trials

As all you OR news junkies have doubtless heard, yesterday a Utah jury convicted the leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints of two counts of being an accomplice to rape. The defendant, Warren Jeffs, has been leading his fringe Mormon sect along the same lines for many years, but it has taken a long time to actually prosecute him for anything. For those of you who are interested in further reading on this topic, I’d encourage you to check out Under the Banner of Heaven by Jon Krakauer. This non-fiction page turner includes a detailed discussion of Jeffs, his life story, and his belief system, and puts him in the context of the larger fundamentalist LDS movement.

I’ve had some interesting discussions recently about polygamy. Especially fascinating to me are the parallels between discussions over polygamy and same-sex marriage. The two topics share several common nexuses,* including questions over the impact they have (or don’t have) on heterosexual marriage/family structure and the potential abuses inherent in these practices when minors are involved.

Here’s one question I haven’t figured out yet: speaking in the context of consensual adult relationships only, is there any internally consistent way to reject polygamy and condone same-sex marriage? I ask because several states now allow same-sex marriage or civil unions, and some polls show Americans are growing increasingly tolerant of it. But I don’t know of too many polls stating that Americans are growing increasingly tolerant of polygamy / polygyny / polyandry, and certainly no state has even come close to allowing them. This seems contradictory to me. If the objections to same-sex marriage bans are all about the government respecting individuals’ dignity and privacy by staying out of private relationships between consenting adults, then why isn’t there a mainstream national debate about multiple marriage rights? The Anglican Communion, for example, sure isn’t being torn apart by disagreements over polygamous clergy.

Seems to me that we should either condone both multiple marriage and homosexual marriage, or reject both. I can’t figure out any way that I can honestly support the latter without also supporting the former. What’s the difference?

*Nexuses? Nexes? Nexi? Ack!

Slide Hampton conducts the Dizzy Gillespie All Star Band to close out this years Duke Ellington Jazz Fesival in DC. It’s a great joy in life to walk through a crisp Sunday, plop down under Washington’s Memorial, and listen to Slide, James Moody, Roy Hargrove, and Jimmy Heath. Our decided highlight was hearing Clark Terry and Mr. Moody do some “mumbling.”

Still not representing

Well, three Senators couldn’t come around to the American cause of representation.

GOP Minority leader McConnell makes the odd point:

“I opposed this bill because it is clearly and unambiguously unconstitutional,” McConnell said in a statement. “If the residents of the District are to get a member for themselves, they have a remedy: amend the Constitution.”

How, I wonder, are “they” to act on that remedy when they have no representative to make said motion to amend the law of our land.

The Constitutional argument is bogus. Senators Hatch and Lieberman do a decent job addressing this in their recent editorial in the Post.

A hundred-fifty years ago, a couple days ago, the U.S. Supreme Court decided, for the second time in the Court’s history, that the Constitution barred a Congressional Act. The first time was in Marbury v. Madison.

In Marbury, the Court struck down the Judiciary Act, passed by Congress in 1789. Some background: Normally, we hear about the Supreme Court in its role as the final appelate court after a case goes through all the rungs of lower federal courts (or a case with federal law issues is ruled upon by a state’s highest court). The Constitution also allows a person to file a case directly to the Supreme Court in certain circumstances. This original jurisdiction exists in “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” A few years after the Country got rolling, Congress appeared* to extend that original jurisdiction to cases where the plaintiff wanted the Court to issue writs of mandamus (i.e., tell another government entity to do something).

The Court, in Marbury, decided that Congress was not allowed to extend the scope of the Supreme Court’s original jurisdiction. Thus the plaintiff, who had gone straight to the Court rather than landing there on appeal, had gone to the wrong court…said the Court.

In the midst of so ruling, the Court noted that Acts of Congress that conflict with the Constitution are not, in fact, law. Judges, the Court also noted, swear an oath to uphold the Constitution (forgetting to note, apparently, that so do Presidents, Governors, Congressional members, lawyers, and various others).

It would be more than fifty years later, and about 150 years ago, on August 20, 1857, that the Court again decided a Congressional Act violated the Constitution. While deciding that Dred Scott, who had sued for the freedom that should have been his according to federal law, was not, in the eyes of the federal government, a person, the Surpreme Court’s Dred Scott v. Sandford decision overrulled Congress’ law that would have supported Scott’s freedom.

To make the case that, because he had been in free-state territory and had thus, under state and federal law, become free, Mr. Scott needed to be able to, well, make the case. The Constitution allows federal courts to hear cases between citizens of different states, so Mr. Scott needed the Court to consider him a citizen. Or, as Chief Justice Taney put it:

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

For the Court to have jurisdiction to hear the case, Mr. Scott needed to be a “citizen.” To answer the question, the Chief Justice opined on the nature of Mr. Scott’s eligibility of person-hood:

The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether [persons of African descent] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

By the way, pre-echoing a theme in jurisprudence common today, the Chief Justice cleansed his hands and noted that policy (good or bad) is made outside the court:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

Chief Justice Taney proceeds to discuss several reasons why the framers of the Constitution would not have considered Mr. Scott a citizen; thus, the Constitution bars Mr. Scott being a citizen.

Shall we call Taney’s jurisprudential approach the original original intent?

After establishing Mr. Scott’s (and any African American’s) non-person-hood, The Chief Justice reasoned that the 1820 Missouri Comprimise, which prohibited slavery in non-state territory north of a specified latitudinal line, violated the Constitution because it unreasonably deprived citizens of property (slaves).

Thus, the second instance of the Court’s use of the ‘judicial review’ stick to Congress’ hand. With that history said, I have a few things on the mind. Taney’s reasoning…is it bad, or just mean? Is there a better word than judicial review (or activism) to describe the Court’s role as balancing Constitution vs Congressional Acts? What did the dissent say in Dred Scott?

To be continued, I hope…

* Akhil Amar makes the convincing point, in America’s Constitution, that Marbury is wrongly decided because Justice Marshall misread the Judiciary Act (read page232-233).

If you missed the NY Times op-ed penned by 7 officers at the end of their tours in Iraq, let Fred Kaplan’s Slate article catch you up. The gravamen of the piece is that their experience of the insurgency/counterinsurgency causes the officers to be “skeptical of recent press coverage portraying the conflict as increasingly manageable and [to] feel it has neglected the mounting civil, political and social unrest [they] see every day.”

The piece continues to detail the causes of that skepticism.

Kaplan asks the interesting question: where are these officers now? How has the article affected their return home and job security?

over the bay

Summarizing Massachusetts v. EPA

The following is a summary of what the Supreme Court decided in Massachusetts v. EPA. The lawsuit arose out of EPA’s decision to deny a rulemaking petition asking the agency to regulate greenhouse gases pursuant to the agency’s authority under the Clean Air Act. The questions that the Court considered and answered in its majority opinion deal with greenhouse gases only tangentially; the debate in the Court centered on legal questions about lawsuits and government agency powers. The issues that the Court decided upon addressed: (1) whether the plaintiffs in the case should have been allowed to sue and (2) whether EPA properly denied the petition for rulemaking. While summarizing the Court’s decision on these questions, we will need to cover a few legal concepts that were central to the Court’s thinking—we will cross those bridges as they come along.

How the case came about

Federal agencies create regulations primarily because Congress directs them to through statutes. The agencies are also bound by those statutes—they cannot overreach and regulate more than Congress has directed. Thus, agencies are the government entities that implement laws. People often challenge agencies in court for regulating beyond the authority granted in a statute. Conversely, agencies can be challenged for not doing enough under a given statute. That is what happened here.

In 1999, 19 private organizations sent a petition to EPA telling the agency that it should regulate greenhouse gases according to the Clean Air Act. EPA published a note in the Federal Register asking the public to comment on the issues raised in the petition. The White House also asked the National Research Council to identify where there were uncertainties in climate change science. In 2003, EPA denied the rulemaking petition saying that it had no authority to regulate greenhouse gases under the Clean Air Act. To boot, EPA gave several policy reasons that, if it had authority, it would still decline to regulate.

The petitioners challenged EPA’s decision at the D.C. Court of Appeals (the Clean Air Act allows exactly such challenges that skip the trial court level because the challenge is about EPA’s government power rather than about facts that would be determined in a trial). Joining in the petitioner’s cause were several state and local governments, including Massachusetts.

The Appeals court ruled against the petitioners. One judge jumped straight to the issue and decided that EPA did nothing wrong in deciding not to regulate greenhouse gases for policy reasons. Another judge decided against the petitioners on procedural grounds, writing that the petitioners should not have been able to sue EPA in the first place. With two out of three judges deciding against them, the petitioners lost. They appealed and the Supreme Court accepted the case.

The Court considered two major issues to decide the case; one issue focuses on the petitioners, the other on EPA. We will first look into why the court spent 15 pages discussing whether petitioners could rightfully sue—an issue called “standing.” Then, we will consider the Court’s discussion that focuses on whether EPA acted properly.

Whether Massachusetts can sue EPA

The Constitution limits federal courts to hearing “cases” and “controversies;” which is to say, courts do no simply opine on any issue they want. There must be a plaintiff that suffers some actual injury for which we can (or can’t, as the case decides) ascribe causation to a defendant that, upon such finding of blame, can redress the injury. The elements bind courts to the role of deciding precise disagreements rather than creating law out of whole cloth.

The legal term of art for the above elements is “standing.” A plaintiff must have standing (i.e.., must have an injury and must identify the person that can be blamed for and can redress the injury). These elements are important because four out of nine Justices wanted to dismiss the case believing that the petitioners did not satisfy the standing requirement.

The Court discussed only Massachusetts’ standing because, for the purposes of this case, only one petitioner needed to show standing and the lawyers picked Massachusetts. In addressing whether there is an injury (the first of the standing elements), the Court first considered Massachusetts as a state. The Court emphasized the “special position and interest” of Massachusetts.

A state’s interest extends to its capacity as a sovereign entity—that, as the Court quotes Justice Holmes, it can control “whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.” This role of the state as a governing entity is important because the federal government has assumed the prerogative of assuring clean air. Because this prerogative has shifted from state to federal jurisdiction, the state enjoys a “special solicitude” in the Court’s standing analysis.

Many commentators have written about, and most of Chief Justice Roberts’ dissent complains about, the Court creating a new, relaxed standard for allowing states to have standing. However, rather than affording the state a relaxed ability to sue, the Court’s discussion correctly recognizes the context in which it decides whether there is standing (injury and a defendant we can blame and that can redress the injury).

Indeed, the discussion of Massachusetts’ injury is straightforward: the state, in its capacity as a landowner, is losing coastal lands (beyond normal erosion) due to rising sea levels caused by global warming. The state also asserted impaired of air quality. The argument against this first element of standing is that the injury is not particular to Massachusetts. In response, the Court noted that the widely shared nature of the injury does not diminish Massachusetts’ injury.

Having established an injury, the Petitioners needed to show that they brought in the person that caused the injury and can redress the injury. Remember, this case is about EPA’s role in regulating the greenhouse gases that are injuring Massachusetts. No party in the case disputed that greenhouse gas emissions cause global warming and contribute to the claimed injuries. EPA’s argument, rather, focused on the inadequacy of redressability in the case—in other words, EPA said it could not mitigate global climate change, especially in light of developing nations like India and China contributing to climate change.

The Court rejected that argument. Government commonly works one step at a time. For standing considerations, the defendant’s inability to redress fully the plaintiff’s injury does not destroy the plaintiff’s ability nevertheless to sue the defendant to spur some relief. As the Petitioners argued, the U.S. transportation sector contributed 1.7 billion metrics tons of carbon dioxide in 1999. If the EPA removed some portion of that contribution, the harm caused by global warming will be reduced.

Massachusetts, having shown a concrete injury and having brought into to court the entity causing that injury (by not regulating) and that can redress the injury, has standing. The case can move on; thus, we turn to the Court’s discussion of whether EPA acted unlawfully in denying the petition for rulemaking.

EPA’s denial of the petition and the agency’s discretion

As mentioned above, agencies are the government entities that implement Congress’ laws. But, laws are not always clear, and agencies often must exercise some interpretation while transforming Congress’ laws into the rules that actually affect people and industry.

An agency is often challenged in courts by litigants claiming the agency did something wrong while translating a law to a regulation. Courts are familiar with this frequent fight and generally favor affording agencies some discretion in interpreting statues. However, courts need some way to determine whether an agency deserves this discretion (because the agency consists of experts) or whether the agency has gone beyond the realm of reason while turning statutes into rules. The test that courts use when deciding this question was formulated in a 1984 case called Chevron v. NRDC, and is commonly referred to as “Chevron deference.”

Under Chevron deference, if the statute that the agency interprets is ambiguous (in other words, if there is room for interpretation), the court will defer to the agency’s interpretation. However, if that interpretation is unreasonable, the court will analyze the agency’s action (or inaction) with no deference to the agency. So there are two prongs: (1) was the statute clear or ambiguous; and (2) if ambiguous, did the agency make at least a reasonable interpretation?

Returning to Massachusetts v. EPA, in denying the petition for rulemaking, EPA said: (1) the agency did not have authority to regulate greenhouse gases under the Clean Air Act; and (2) even if EPA had the authority, it would decline to regulate. We will address the two points in that order.

The Court struck down EPA’s first authority-based argument with the first prong of the Chevron test; the clarity of the statute precludes EPA’s interpretation that it could not regulate greenhouse gases. The statute requires EPA to regulate “air pollutants from … motor vehicle engines, which … cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA had interpreted “air pollutant” not to include greenhouse gases. But, the Court said, the statute unambiguously includes greenhouse gases in the definition of air pollutant:

The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air ….” On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical … substance[s] which [are] emitted into the ambient air.” The statute is unambiguous.

So, EPA loses the first argument (that they have no authority to regulate) because the statute clearly allows EPA to regulate greenhouse gases. The language of the statute, quoted above, is important because it informs the next question: did EPA properly decide that it would decline regulating greenhouse gases for the time being?

This aspect of the case is entirely about an agency’s discretion. Usually, it is very hard to lose a case as an agency declining to regulate. Yet, EPA lost. The Clean Air Act contains a provision on how courts decide whether EPA properly exercises its discretion in turning down a petition: the EPA loses if the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

Turning to the issue in this case ,the Clean Air Act, said the Court, allows the agency to decide how to regulate, but does not allow the agency to decide what to regulate. To avoid regulating greenhouse gases as the petition urged, EPA needed to either determine that the asserted greenhouse gases cannot “reasonably be anticipated to endanger public health or welfare;” or the agency must offer a reason not to regulate.

EPA tried to offer reasons not to regulate: several voluntary programs are in place, the President is pursuing technological improvement approaches, regulations might hinder international negotiations on global warming policy, and so on. The Court did not find these reasons adequate because “they have nothing to do with whether greenhouse gas emissions contribute to climate change.”

The Court’s opinion suggests that when an agency makes a decision regarding whether or not to pursue rulemaking, it must ground that decision in the language of the statute. Here, the Petitioners asked the agency to regulate greenhouse gases because they are pollutants that the Act requires EPA to regulate.

The relevant language of the statute requires that EPA’s response address, head on, the science of greenhouse gases, and the costs and benefits of regulating them. The policy-centered reasons that EPA offered did not satisfy this requirement; nor did EPA’s assertion that too much uncertainty surrounds the features of climate change. EPA only asserted uncertainty at the margins of the global warming issue. Such “residual uncertainty” is not sufficient to excuse EPA’s refusal to determine outright whether greenhouse gases “endanger public health or welfare.” Thus, EPA’s explanation in response to the petition was “arbitrary, capricious, … or otherwise not in accordance with the law.”

A small conclusion

Reasonable people can differ on whether the Court has created a new legal hurdle for agencies responding to petitions for rulemakings. Many commentators, along with Justice Scalia’s dissent, wonder why the EPA had to make a judgment at all regarding greenhouse gases simply because of the filing of a petition. On the other hand, it makes sense to ground a determination of whether the agency acts arbitrarily or capriciously on the underlying statute.

The Court did not prescribe EPA’s decision—the agency can decline to regulate greenhouse gases for reasons more adequately connected to the Clean Air Act. However, the Court surely hinted that it (at least, five of the Justices) are convinced of some basic elements of climate change: greenhouse gases are sufficiently “air pollutants” that EPA can regulate, global warming results from greenhouse gases, and actual harms result. EPA would have a great deal of difficulty refusing to regulate on the basis of the air pollutants having insufficient harm to public health or welfare. Thus, it is very likely EPA will soon be pursuing cost/benefit, and other, analyses of carbon emission regulations to determine how to regulate greenhouse gas emissions.

Did Prince Write that Sign?

To have a laugh one day, Joseph Frederick held up a banner while the Olympic torch passed him by in Juneau, Alaska with the message, “Bong Hits 4 Jesus.” This being across the street from his school, during school hours, the principle rushed over, grabbed the banner, tore it up, and gave the high school senior a 10 day suspension. So he sued the principle claiming violation of 1st amendment right to speech.

The district court agreed with the principle, the 9th circuit agreed with the student, and the Supreme Court heard arguments on the case about a week ago.

Student speech is not a novel topic in the Court, and the most direct precedent to this case is Tinker v. Des Moines. There, the school suspended kids wearing black arm bands to protest the Vietnam war. The Court held that students still enjoy certain first amendment protection. Recognizing a school’s need to maintain order, the Court said that the school can prevent speech when such speech is disruptive. Black armbands were not disrupting any lessons.

In a recent column, Marci Hamilton writes:

Why shouldn’t schools be able to effectively discourage illegal drug or alcohol use, smoking, promiscuous sex, profane speech, and violence? The Motion Picture Association of America screens movies for children under such categories; surely, schools can make similar judgments in their guardian-like role as parens patriae.

…the slippery slope here is the one that is going to persuade many fine school administrators to find other lines of work. If the court rules that the school’s actions in this case cross the First Amendment line, then school administrators are going to be advised to err on the side of permitting a wide swath of student attention-grabbing, inappropriate speech, even if it directly undermines legitimate school policies. This turns each principal into Sisyphus, constantly rolling the rock of civility and wholesomeness up the hill only to have it roll back down, again and again.

Schools certainly can discourage drug use. But I don’t understand how Hamilton’s hope that schools can censure student opinion on the subject will even help the drug-resistance policy. Silencing the other side of the debate often strengthens it–especially when it is an illicit activity that teenagers are being told by authority figures to avoid.

Far better the debate of drug use be out in the open…as it is very often in Alaskan referendums. An honest debate about whether marijuana should be legal seems a perfectly civic oriented discussion that the 1st amendment would envision.

Many arguments on the school’s side focus on drug-use and propose that “disruptive” speech can be that which runs counter to a major school theme, and because pot-use is illegal, the school can prevent posters/shirts/etc that advocate the activity.

But, in Tinker, it was a major school policy was to promote patriotism and service (ie-not draft dodging). Thus, the black armbands in Tinker were a rebellion against the school’s policy just as a a poster advocating drug use.

Illegality is often used as a potential differentiator–the Principle can censure a sign reasonably understood to advocate illegal drug use. Speech about some civic/political point is one thing, so the argument goes; speech about drug use is not as deserving of protection. This is a problematic line, though. Many civic minded discussions are precisely about what should and should not be legal. In any event, speech about drug use is far different from passing out drugs or using drugs on school property.

All the above said, though, we cannot ignore the amazing need to allow teachers control within their classrooms. We would be robbing our children’s learning if we allowed their classmates to disrupt the learning environment at will, claiming 1st amendment protections.

In my mind, the focus ought never come off of “distraction.” The 9th Circuit made this point in its decision in Frederick, noting that in other contexts, the bong banner may have been a distraction to schooling and could be removed. Distraction should be a context driven concept. Some students might be able to talk about the merits of legalized/illegal marijuana while the mention of a drug, for others, might cause eruptions of shouting.

In deciding whether a speech incident was disruptive, courts should defer to teachers, principles, the community, and then common sense.

In Frederick, the student could not have been disrupting class because class was not going on, and the parade was not school sponsored (rather, it was Coca-Cola sponsored). On the facts, I tend to side with Frederick. Then again, district courts decide facts and this one sided with the school.