Terra Extraneus

The Death Penalty Information Center, a group opposed to the death penalty, issued their year end 2009 report at deathpenaltyinfo.org. It indicated a decline in the number of executions during the decade just concluded with an up tick in 2009.

The startling thing to me about this report is the assertion that there are on average about three people exonerated from their convictions per year in death penalty cases and as many as five per year in the decade just concluded. This seems startling given the resources used to make sure that the death penalty is used only in response to heinous crimes and imposed on only the guilty.

On the other hand, there is no branch of government as starved for resources as the court system. That includes the resources committed to defense of an accused as well as prosecution. Overloaded systems and people make mistakes. Thus, the moral and policy issues surrounding the death penalty may not be the real or important issues. The real issue may be technical. Do we have the resources to manage death penalty cases from arrest to execution and remain true to our sense of justice?

Fifteen states no longer have the death penalty, according to the report, with New Mexico being the newest member of that club. I have to wonder at the politics of that. What political forces would have to exist to bring about the end of the death penalty? I also have to wonder, if political forces can align to bring about the end of the death penalty, why can’t political forces align to bring about the end of abortion?

Of course, as a society, we cannot agree to give up our paper dollar bills in favor of dollar coins, so seeking agreement on weightier issues is nearly a form of extremism.

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In Oklahoma, on a slow news day, you can be sure each local television news broadcaster will have a story about a dog complete with video footage. Movie industry executives also seem to have concluded that movies about dogs sell tickets.

But, it now appears that human civil rights can be curtailed in the face of dog rights. The United States Court of Appeals for the Tenth Circuit reversed the federal district court sitting in Oklahoma City, in a published opinion no less, in a case styled Rajeanna Dixon v Oklahoma Board of Veterinary Medical Examiners. It took thirty pages for the Tenth Circuit to explain this. Indeed, the challenge we are now faced with is to explain why it took thirty pages for the Tenth Circuit to reduce the civil rights of a state employee to zero, elevate dog rights to greater than constitutional importance, and zero out the First Amendment in the absence of a national security consideration. Oh, and the Central Intelligence Agency is involved, so keep reading.

Ms. Dixon was fired from her secretarial job at the Veterinary Board because she allegedly discussed an ongoing investigation into dog fighting and dog doping with her own veterinarian, who happened to be a veterinary association member responsible for legislative over sight of the Veterinary Board and its budgets and powers, largely because she was concerned the agency, which only had four employees, including her, was stepping out side of its mandate. Also, she allegedly told the veterinarian that the board’s investigator was now carrying a gun even when he went to meet with veterinarians.

The federal district court denied the summary judgment motions asserting qualified immunity presented by the board and the board appealed. Thus, this opinion by the Tenth Circuit was doubly weird because normally the mere denial of a summary judgment motion is interlocutory and not appealable.

It has to be noted that the investigation of the Veterinary Board into dog fighting and dog doping resulted in an arrest, probably by another law enforcement agency, that was reported in the news media. It has to be noted that Ms. Dixon comments on the investigation, if they occurred, were made after the news media report made the investigation, at least in part, public. Indeed, the news media report suggests it had become a matter of public concern, at least on a slow news day, and thus Ms. Dixon’s comment upon on it should have been presumptively protected, and not used as a pretext for firing her.

But, the Tenth Circuit concluded that there were “unprotected” statements, in addition to protected ones. In other words, as soon as the Tenth Circuit found that the First Amendment did not reach these statements, then Ms. Dixon could be fired for speaking about the Veterinary Board if the interests of the Veterinary Board, as a government employer, outweighed Ms. Dixon’s right to free speech. The Tenth Circuit concluded that Ms. Dixon’s other comments were “trivial in nature.” (“Serious complaints about discrimination can certainly be a matter of public concern, but the record reveals discussion of nothing more than a few stray comments.”) The right of the state government agency not to have a secretary discuss agency business, public or non-public, was deemed greater than the First Amendment protection.

Comically, the Tenth Circuit put the Veterinary Board of Oklahoma on a high investigatory pedestal when it parenthetically stated: “That is why the CIA regularly responds to inquiries by saying it can “neither confirm nor deny.” Admittedly, sitting in Denver, the Tenth Circuit might not be completely aware that the Central Intelligence Agency of the United States and the Oklahoma Veterinary Board are not handling matters of equal importance. That might explain the lack of a sense of perspective in the opinion and may be the loss of perspective in government generally. Apparently, we dare not have transparency in any government agency, even one that abandoned its mission to regulate veterinarians in favor of investigating dog fighting rings. Apparently, our society will come crashing down around us if we have First Amendment rights about state agency veterinarian medicine regulation.

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Recent commentators, including my own erstwhile colleague, have noted President Bush’s appendage to bills signed into law, recently called “signing statements,” some of which written by President Bush are critical of the scope or reach of the law. Terry noted the ABA’s report on it. Terry’s comment was picked up by a prestigious national commentator.

However, regarding the whole controversy, I’m still searching for the materiality of the dispute. Can anyone cite a single instance in which the President or the Executive Branch violated a law based on a “bill signing statement?” Can anyone point to a single court that accepted the “bill signing statement” as part of the legislative history? Can anyone point to a single court that accepted the “bill signing statement” as the lawful basis for interpretation of the statute so passed, much less a constitutional challenge?

A “bill signing statement” is no more than a historical artifact in most instances, and it has never been used, successfully or otherwise, as determinative of policy insofar as I have ever heard or been made aware. They are printed in the Federal Register so they are publicly available for all eternity and can be debated by anyone that wants to do so.

This is hardly different than when Congressmen, regardless of partisan disposition, include criticisms of proposed statutes in the legislative history during hearings held on the statute, as part of floor debate, or simply as a unilateral insertion by a congressman in the Congressional Record. Lastly, at the most, it is a forum used by a President under the protection of the First Amendment, and has no more weight than a press release from the White House.

The practice has expanded under the present Bush presidency but it was not invented in this administration. Thus, why didn’t the American Bar Association leap onto the practice before now, or when it was used in prior administrations? I resigned from the American Bar Association for exactly this sort of nonsense, coupled with its then express advocacy of abortion upon demand and other forms of murder, without real consultation with the paying ABA membership. The ABA is once again wasting its resources and everyone’s time. In this instance, there is simply no issue.

There have been a number of “reservations” expressed by the nations chief executives to new laws. President Nixon used “impoundments” to try and control the spending of what he viewed was a runaway Congress. Congress would pass a law and a budget and Nixon simply refused to spend some or all of the money Congress allocated. It gave him a form of line item veto he used in an effort to control federal deficits. Also, because it was not an actual “veto,” it avoided Congressional overrides. My recollection is that Arthur Schlesinger’s book, The Imperial Presidency, had an excellent summary of “impoundments, but I no longer seem to have a copy of it at hand, and would hope to be corrected if I have erred in this citation, but my recollections of “impoundments” is, I am sure, correct. What the present Presidency is doing is a far cry from that and impoundments actually did raise a real spectre regarding separation of powers that the mere talk included in a “signing statement” simply does not. It would be interesting to compare the ABA’s “report” on impoundments, if there was one, to its report on “signing statements,” and see which contains the most lurid language. A political fingerprint might have been left behind, and for the ABA, that would not be surprising or beneath them.

Moreover, federal agencies of the Executive Branch are given deference by courts in the interpretation of the statutes of which they are responsible for enforcement. However, deference does not mean abdication, and courts are not hesitant about overriding federal agency statutory interpretation that is wrong or twisted. A presidential “signing statement” is no more important than a federal agency interpretation and would not cause any greater furor during enforcement of a statute.

Any academician responsibly reviewing the impact of “signing statements” would have to compare them to “impoundments,” federal agency statutory interpretation, and White House press releases to determine if there is in the differences any difference.

The ABA is angry because the Bush Administration gives little credence to ABA certifications of the qualifications of presidential federal judicial appointments. The ABA is a private lobbying organization and an inferior one, in my view, to others, such as the American Center for Law & Justice. If the ACLJ, or a similar organization, were to develop a “membership” of attorneys in addition to its donative supporters, it would one day, I am sure, rival the ABA as spokesman for the nations attorneys. Thus, the ABA has no special right to be acknowledged on judicial appointments or anything.

The ABA has a large paying membership, 410,000 according to the AP’s Gina Holland, largely because law firms and corporations pay the dues for employed attorneys. Although, 410,000 is not much more than 10% of the nations attorneys and indicates the ABA’s slipping influence in the legal community. The membership would shrivel if attorneys had to pay the dues themselves, much less if attorneys took a hard look at the advocacy of the organization. I resigned from the ABA while I was an employee attorney and had a law firm paying the dues for me, simply because the ABA’s stance on moral issues, in my view, was inconsistent and in too many cases, contrary to my moral beliefs. It is unlikely the report noted by Terry was any more representative of the feelings of the paying ABA membership.

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My preceding post (“Bush Criticized for Disregard of Law”) mentions a report issued yesterday by a 10-member task force of the American Bar Association. One member of that panel is former Congressman Mickey Edwards.

Edwards is a familiar name to Oklahomans. Edwards, a Republican, served as U.S. representative of the 5th District (OKC area) from 1977-1993 and now is a professor at Princeton University. Edwards has served as president of the American Conservative Union and is a founding trustee of the Heritage Foundation. Edwards has been a frequent critic of the Bush administration. When even people with his conservative credentials say the president has gone too far in defying our democratic system, it’s time for the American people to start listening.

Here is an opinion piece from Edwards, published last week on The Huffington Post (a left-wing and usually snide blog headed by Ariana Huffington, which I do not mean to endorse by referencing here). Edwards’ piece is titled, “The Erosion of American Constitutional Principle.” Edwards writes:

The presidential signing statement [is] a relatively innocuous tradition which has, in this President’s hands, been transformed into a dagger ripping at the heart of America’s central governing principle: separated (and thus constrained) power.

In his essay, Edwards’ primary concern is worth pondering long and hard. He warns that the power President Bush usurps for the executive branch today is the same power some future president will use in ways we cannot foresee.

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The American Bar Association issued a report yesterday criticizing President Bush for attaching bill-signing statements to more than 750 laws during his presidency. Presidents attach such statements to bills when they sign them into law to declare that the president questions the law on constitutional or national security grounds. Bill-signing statements are nothing new, but President Bush has attached more such statements than all 42 previous presidents combined, and has operated as if such statements give him a pass to disregard the very laws he signs.

Says ABA president Michael Greco:

This report raises serious concerns crucial to the survival of our democracy. If left unchecked, the president’s practice does grave harm to the (doctrine of the) separation of powers and the system of checks and balances that have sustained our democracy for more than two centuries.

The president’s spokesman has responded to such criticism by defending the practice of signing statements. But the practice is not what is at question, but Bush’s prolific and manipulative use of it. Lawmakers have pointed out the obvious connection between the President’s little use of his veto power and his broad use of signing statements. The president’s recent veto of the embryonic stem cell research bill was the first veto of his presidency.

When the president vetoes a bill, with sufficient votes the Congress can override his veto. By signing bills into law but stating upfront that he has no intention of obeying them, the president avoids confrontation and political embarrassment, and then just does whatever he chooses. In other words, this president, more than any other in our history, believes that he is above the law.

Sen Arlen Specter (R-Penn.) says he will introduce a bill by the end of this week which would empower Congress to sue the president in federal court to challenge bill-signing statments.

The ABA report was prepared by a 10-member task force which includes former FBI director William Sessions and former Congressman Mickey Edwards. The ABA report is available here.

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