October 24, 2007

"A kafuffle has broken out between Yale Constitutional Law Professor Jed Rubenfeld and self-righteous right-wing blogger 'Simon.'"

LOL. Our Simon has a quote for his banner from preening, left-wing, he's-not-Mickey blogger Stephen Kaus (who seems to be some sort of lawyer but thinks judges announce decisions by saying "Decision: [name of winning party]" and that there is a word "kafuffle").

IN THE COMMENTS: Inwood writes:
I don't know how anyone could fail to, um, decide correctly which is more reasonable from both a commonsense POV, & a Con Law approach: (a) the carefully reasoned & well-expressed points presented by both Mukasey & Simon or (b) the, um, “self-righteous” as well as hysterical "five days from the effective date of Mukasey's appointment, we're all gonna be back in the McCarthy era where, because we've talked to certain people, expressed certain ideas, or are some kind of free thinkers; we’re gonna be on the "National Wire Tapping List", following which we may well be randomly water boarded by the jackboots of BushHitler" nonsense of The NYT & these guys.

BTW, IR, how about “Kausfluffle”?
And Simon is unruffled by the Kausfluffle:
I'm not sure how ruffled my feathers could really get when someone whose sole claim to fame is having a brother more famous, more erudite and more accomplished than he is decides to demonstrate the same lack of reading comprehension skills (he completely misapprehends my post, not to mention making some very questionable assumptions) by scrawling some graffiti on the sewer wall of the internet.

I mean, really, Steve Kaus? For all the world, he's the blogosphere's equivalent of the brother of the Paul Bettanny character in Wimbledon.

And what's with the "Simon" in scare quotes? It's not as if my last name's a secret or hidden.

ALSO IN THE COMMENTS: Too Many Jims said "there are better indictments of Kaus' writing than "kafuffle is not a word." And I said:
I have many indictments, but that doesn't mean I'm going to spend my scarce time rebuffing some lawyer who writes for readers that he thinks will be awed by the title "Yale Constitutional Law Professor." I've seen too many things written by Yale Constitutional Law Professors to get stirred up when a non-Yale Constitutional Law Professor comes along and acts like something must be true because it was written by a Yale Constitutional Law Professor. Kaus must be: unsophisticated/blinded by ideology/out to manipulate readers. I have no time for that.
MORE: Jed Rubenfeld — the Yale lawprof who wrote the NYT op-ed that started all this — emails:
In response to my op-ed, some have said, "But Judge Mukasey in no way suggested a presidential authority to ignore constitutional statutes; all he meant was that the president has authority to ignore unconstitutional statutes." Others have wondered, on my behalf, whether, given Judge Mukasey's actual statements, and given the history of executive-power claims by the present Administration, this reply is in fact a meaningful reply to the point I made in my op-ed. Of those posting on your blog, "Laser" comes closest to saying what I myself would have said. But in case it would be helpful, here is my own answer.

There are two interpretations of Judge Mukasey’s statements that I meant to be addressing simultaneously and that I would object to equally.

Judge Mukasey indicated that the president has constitutional authority to disregard a federal statute if “what goes outside the statute nonetheless lies within the president’s authority to defend the country.” The president was not above the law, Judge Mukasey emphasized, but the law “starts with the Constitution.” A "statute, regardless of its clarity, can't change the Constitution."

The first question — and what I regard as the real question — is whether Judge Mukasey's statements imply a presidential authority to ignore a federal statute in the following kind of case: (a) where both the president and the Congress possess constitutionally granted power over a certain subject matter; (b) where Congress has exercised its constitutionally granted power; but (c) where the president, in the exercise of his constitutional power, wants to do something that is otherwise constitutionally permissible, that he believes justified in the name of defending the nation (at least in wartime) as he thinks best, but that the enacted statute prevents him from doing. I think Judge Mukasey's statements at least leave open the possibility that the president has authority to disregard the statute in this kind of case.

There are two interpretations of Judge Mukasey's statements according to which he could have endorsed such an authority. First, he might have meant: (1) that, under our Constitution, executive power simply trumps a constitutionally enacted statute in those cases. This is not an unintelligible position. Where two branches each have power over a certain subject matter, one must be supreme over the other, even if both are acting within their constitutionally granted powers. In matters of defending the nation in wartime, someone might intelligibly believe that the executive power must be supreme. On my view, however, this position is plainly unacceptable, contrary to Youngstown, contrary to the supremacy clause, and a subversion of the Constitution’s foundational principles.

Second, Judge Mukasey’s statements could be interpreted to mean: (2) that in the cases specified, the statute becomes unconstitutional just because the statute has infringed on executive power. Now, some people seem to think that this is very different from position (1). They say, "On this view, Judge Mukasey was merely arguing for an executive power that everyone agrees to -- the power to disregard an unconstitutional statute." For myself, I do not view position (2) as meaningfully different from position (1). I think position (2) just is position (1), dressed up in different words; or, to put it the other way, that position (1) just is position (2), dressed up in different words. I take position (2) to be unacceptable precisely because it boils down to the same thing as position (1). I also take position (2) to be close, if not identical, to the position articulated in the repudiated “torture memo.”

I thought about trying to distinguish these two positions in my op-ed, but in the end decided not to. I made this decision not only to save words. On my view, the two positions are in the end not distinguishable, so it is obfuscatory to try to make them sound distinct.

Let me emphasize that I take both positions (1) and (2) to be distinguishable from position (3), which holds that the president has the authority to disregard a statute that unconstitutionally asserts congressional power over a subject matter that the Constitution simply does not grant Congress power over. Thus if Congress passed a statute ordering the deployment of troops in a fashion so specific that Congress had attempted to exercise a power that only the commander-in-chief possesses, Congress would not have been exercising one of its constitutionally granted powers and would not have passed a valid statute at all. By contrast, I take FISA and the military commissions act clearly to govern matters that both Congress and the president have powers over (at least, in FISA’s case, as applied to communications made by United States persons on United States soil). It follows that the president is simply breaking the law if he unilaterally violates these statutes, regardless of which position, (1), (2), or (3), is asserted in defense thereof.
What is key is that there are some things with respect to which the President has exclusive power. This is commonly known as Jackson's category 3 (from the Youngstown case). Here is Justice Jackson's delineation of the concept:
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system....

[Where the President's action is contrary to a federal statute,] it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject.
I think this is what Mukasey was referring to, and, as such, it is a solid and unremarkable position. The real dispute is not over whether the President can violate statutes, but how big "category 3" is: How much power does the Constitution give exclusively to the President? I don't doubt that Mukasey has a more expansive view of "category 3" than Rubenfeld does.

130 comments:

Trooper York said...

Michael: My father is no different than any powerful man, any man with power, like a president or senator.
Kay: Do you know how naïve you sound, Michael? Presidents and senators don't have men killed.
Michael: Oh. Who's being naïve, Kay?
(The Godfather, 1972)

Steve Donohue said...

The Kaus brothers are like the Baldwin brothers; they look exactly alike.

Roost on the Moon said...

He was on Bloggingheads.tv once, seemed like a nice guy. And he hinted at but didn't tell the story of a heated confrontation between Kaus's mother and Ann Coulter.

Randal Rogers (I. Ronin) said...

I think the word he was looking for was "kausfuffle."

Luckyoldson said...
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Justin said...

For Lucky

Too many jims said...

"kafuffle"
-- Not saying that should be the definitive source, or that it was there last week, but there are better indictments of Kaus' writing than "kafuffle is not a word".

Ann Althouse said...

I have many indictments, but that doesn't mean I'm going to spend my scarce time rebuffing some lawyer who writes for readers that he thinks will be awed by the title "Yale Constitutional Law Professor." I've seen too many things written by Yale Constitutional Law Professors to get stirred up when a non-Yale Constitutional Law Professor comes along and acts like something must be true because it was written by a Yale Constitutional Law Professors. Kaus must be: unsophisticated/blinded by ideology/out to manipulate readers. I have no time for that.

Ann Althouse said...

And, Too Many Jims, that's not much of a dictionary you found. I use Bartleby, which collects many references and turns up nothing with that spelling.

Trooper York said...

That was the end of our voluntary searchings in the caverns of dream. Awed, shaken, and portentous, my friend who had been beyond the barrier warned me that we must never venture within those realms again.
(H.P. Lovecraft Hypnos 1922)

Luckyoldson said...
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Simon said...

I'm not sure how ruffled my feathers could really get when someone whose sole claim to fame is having a brother more famous, more erudite and more accomplished than he is decides to demonstrate the same lack of reading comprehension skills (he completely misapprehends my post, not to mention making some very questionable assumptions) by scrawling some graffiti on the sewer wall of the internet.

I mean, really, Steve Kaus? For all the world, he's the blogosphere's equivalent of the brother of the Paul Bettanny character in Wimbledon.

And what's with the "Simon" in scare quotes? It's not as if my last name's a secret or hidden.

Simon said...

Ann Althouse said...
"I've seen too many things written by Yale Constitutional Law Professors to get stirred up when a non-Yale Constitutional Law Professor comes along and acts like something must be true because it was written by a Yale Constitutional Law Professors."

I'll have to send him a copy of Neutral Principles and Some First Amendment Problems sometime...

rhhardin said...

Er hat kafufflt. He screwed up.

Balfegor said...
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Trooper York said...

"Steve Kaus" is the Steven Baldwin of the Internet. Simon kick his ass all over town baby! Yeah Team!

Trooper York said...
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Trooper York said...

I am sorry Simon, but I don't know your last name. I hope it's not Peter. Because if it is, I need some advice on plea bargining.

From Inwood said...

I've been reduced to a reader of this site recently, but that does have the advantage of giving one time to think.

I don't know how anyone could fail to, um, decide correctly which is more reasonable from both a commonsense POV, & a Con Law approach: (a) the carefully reasoned & well-expressed points presented by both Mukasey & Simon or (b) the, um, “self-righteous” as well as hysterical "five days from the effective date of Mukasey's appointment, we're all gonna be back in the McCarthy era where, because we've talked to certain people, expressed certain ideas, or are some kind of free thinkers; we’re gonna be on the "National Wire Tapping List", following which we may well be randomly water boarded by the jackboots of BushHitler" nonsense of The NYT & these guys.

BTW, IR, how about “Kausfluffle”?

Simon: Brilliant. Gotta start reading your blog directly, unless that will bring scrutiny from the BushHitler jackboots! Even in my youth I could never hold my breath very long under water.

Justin said...

Lucky,

I provided the link to refute this line that you quoted:

...all cell phone numbers are being released to telemarketing companies and you will start to receive sales calls.

Which is, according to the link, false.

Back to the topic at hand:

It looks to me like Steve Kaus has just been itching to attack that strawman for a while. He finally found an opportunity and went after it.

Steve Kaus says:

By defining any law that limits the president from doing whatever he wants in the name of national security as Unconstitutional...

Even Rubenfeld didn't make this claim.

Trooper York said...

From Inwood, welcome back.

Simon said...

Trooper - it's Dodd. No relation! ;) I think Patterico has the right approach, I don't go out of my way to either hide it or to publicize it - I leave it off my blogger profile because that way y'all have to do what I say. ;) But it's on my SSRN page (which is linked from my profile) and my domain name. I don't honestly know why it's not listed at SF, I guess I never really thought about it. Maybe we'll change that now.

James said...

The word is kerfuffle. I first heard Jackie Stewart use it while commenting on an auto race.

john said...
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Palladian said...

I hate the word "kerfuffle". It's a disgusting sounding word.

Trooper York said...

Simon, I think the professor is tweaking you with another post.
I just hope you are not related to Molly Dodd. That would really require some plea bargining.

hdhouse said...

gosh Ann, I was feeling pretty good about my analysis and contributions in the parallel post on this subject and now, after reading your vective, I'm deflated.

darn.

Trooper York said...

Palladian, kerfuffle is what they used to do to Graham Kerr before he went on to set of the Galloping Gourmet.

Too many jims said...

I have many indictments, but that doesn't mean I'm going to spend my scarce time rebuffing some lawyer who writes for readers that he thinks will be awed by the title "Yale Constitutional Law Professor." I've seen too many things written by Yale Constitutional Law Professors to get stirred up when a non-Yale Constitutional Law Professor comes along and acts like something must be true because it was written by a Yale Constitutional Law Professors. Kaus must be: unsophisticated/blinded by ideology/out to manipulate readers. I have no time for that.

See that is a better indictment (in my view) even if you have no time for it. And I readily admit (and acknowledged) that the source I linked to might not be the best source.

Trooper York said...
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Trooper York said...

I think that’s how Emeril got his start. As a kerfuffler. Hey, everybody has to start somewhere.

knoxwhirled said...

FYI, Simon, being referred to as either "self-righteous" or "right-wing" on the icky Huffington Post (despite what its readers think) is actually a huge compliment...

Roger said...

First time I saw the word was Taranto on Opinionjournal. Of course we know those wingnuts will steal anything--esp our civil liberties.

With respect to the Kaus boys: those guys sure fell out of the ugly tree and hit every branch on the way down. Ewwwww.

JohnAnnArbor said...

Justin,

People like Luckyoldson, once they choose an urban myth to believe, get REALLY upset when you burst their bubble with facts. Just FYI.

Roger said...

OMG: I apologize to our hostess who asked us to avoid personal attacks. But you gotta admit: clocks run backwards when the see the Kaus boys.

john said...

hdhouse -

What's a "vective"? I've only heard of a fulminating vective (Pink Floyd, my fav band.) Perhaps I would know this word if I had not taken my fav band's advice, and stayed in school.

Regards,

john said...

May not have been Pink Floyd. My bad.

Trooper York said...

I believe that it was Uncle Floyd who displayed his pink vective to Pee Wee Herman in the men’s room at Asbury Park down the Jersey Shore which led to many unfortunate consequences for all involved.

John said...
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john said...

John,

You aren't me. One of us needs to change. WHo was here first?

Trooper, Jersey Shore is in Northern PA not NJ, so I think Pee Wee was coerced into his guilty plea, and he needs to confer with Craig's lawyers about this. Maybe the two of them can start some class action.

Luckyoldson said...
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Trooper York said...

All I know is that the rumor down the shore is that all of this toe tapping started at a Bruce Springsteen concert in 1971. Conspiracy theory? Base canard? You make the call.

Luckyoldson said...
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Simon said...

I put an update on my original post; I don't think there's any substance to Kaus' criticism, and he seems to have missed the point entirely.

Simon said...

I should say, thanks for the heads up, Ann. :)

Luckyoldson said...
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john said...
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john said...

Timing is everything.

No, I did not say I blowed LOS.

Lets get that straight.

Regards,

john said...
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Luckyoldson said...
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Luckyoldson said...
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Simon said...

John - "languishing"? I think you give Kaus a little to much credit. ;) But, you know, I'll count a week where I make it onto Ann's radar more than once as a win, so maybe he's an idiot, but he's a useful idiot at least. ;)

Roger said...
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Luckyoldson said...
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JohnAnnArbor said...
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john said...
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jeff said...
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Justin said...
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Luckyoldson said...
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JohnAnnArbor said...

Wow, some people don't take correction well. Get a grip. You were wrong.

Ann Althouse said...

Stop talking about the f**king do not call list!

Trooper York said...

I was on a lot of I not f*cking you call lists, and my message's were all automatically deleted. Technology can be a bitch.

Revenant said...

Simon,

I'm a little disappointed that you only got flamed by Kaus the Lesser. That was a good blog post; it deserved to be flamed by an A-list liberal.

Luckyoldson said...

Ann Althouse said..."Stop talking about the f**king do not call list!"

Okay...but only if you promise not to call.

Ann Althouse said...

Never, never, never, never hijack a thread with such a boring, stupid topic ever again. I cannot believe I had to spend 5 minutes clearing out that deadwood. The hell!

Luckyoldson said...

Ann,
Just a thought, but...maybe if the thread was more interesting to begin with...?

JohnAnnArbor said...

Dude, we're guests. She sets the rules. Duh. (Again.)

Luckyoldson said...

JohnAnnArbor said..."Dude, we're guests. She sets the rules. Duh."

I bet you get a cookie for that one.

Palladian said...

LOS, when your foot is not only in your mouth, but down your throat, through your colon and coming out your ass, it might be a good time to, I don't know, shut the fuck up.

Lord.

Trooper York said...

I am also on several don't call me if you are the f*cking last man on earth lists. I bet some of you guys are too. Heh.

Justin said...

Palladian said...

I hate the word "kerfuffle".

I always thought it was "kerfluffle". Either way, I agree with you. It's and awful, awful word.

Randal Rogers (I. Ronin) said...

I can see that this has gone well.

Anyway, Simon, I think you have still have the advantage over your detractors. (BWDIK, I am not a member of the elite).

Randal Rogers (I. Ronin) said...

fuffle, fluflle, fluffer - what's the difference?

Roger said...

Looks like the professor has her skivvies in a bunch today :) Hormone therapy perhaps?

OK--apologies for participating in the do not call discussion--but really, its a hell of a lot more valuable than what a bunch of constitutional law professors think. No offense intended :)

Trooper York said...

I thank the good lord that I was never on the "I don't know who I f*cking caught it from-was it you call lists." Dodged a bullet there.

LoafingOaf said...

However unpopular, "kafuffle" is a word.

And the first person to compare "Decision:[name of winning party]" to Althouse acting like a judge was Simon in Althouse's previous post's comments: "a sound decision from Althouse, J".

Luckyoldson said...

Palladian,
Why are you reading my comments?

Do you love me?

Do you want me?

Sorry...already taken.

Here's a suggestion: Get lost.

LoafingOaf said...

You should keep the Do Not Call Registry discussion. It's nice to see Lucky likes something President Bush has done for America.

Trooper York said...

Does this dust up now technically qualify as a Kafuffle or a Kefuffle? Enquiring minds want to know.
(Mary Hart, Entertainment Tonight)

Luckyoldson said...

LoafingOaf said..."It's nice to see Lucky likes something President Bush has done for America."

It's about the only thing, but I guess you have to take what you can get.

What do YOU like?

Trooper York said...

Women with large breasts and ample butts, beer and wine, Italian food, cigars, old movies, music, red meat, and old school sci-fi with lots of naked slave girls.

Justin said...

Trooper York said...

I thank the good lord that I was never on the "I don't know who I f*cking caught it from-was it you call lists." Dodged a bullet there.

That's the funniest thing I've read all month.

Mortimer Brezny said...

My, my, my Ann is castrating comments in here like a state-appointed dominatrix from the planet Amazonia-69.

I am deeply sorrowful that I have missed this flare-up, which, frankly, has Simon stomping all over Mr. Liberal Yale Law Professor even better than I stomped all over Michael Dorf for his elitism way back when. What fun.

Well, if I had to offer belated comments, in addition to congratulating Simon for his official blogospheric coming out to non-law-junkies, there seems to be a lack of sophistication in Rubenfeld's op-ed that is particularly inexcusable given that the book that won him his acclaim (and a fiction book deal) was a critique of the lack of sophistication of originalist arguments failing to appreciate the difference betwixt original understanding and original expected applications. You would think such a fine parser of historical record and positive legal effect would have a more nuanced view of a statute that could be constitutional on the whole and so withstand a facial challenge, but yet unconstitutional as applied to a particular circumstance with respect to a given litigant. You would likewise think such a well-honed analytic mind could distinguish between a statute that is unconstitutional because it conflicts with another clause of the Constitution, e.g., the Due Process Clause or the Equal Protection Clause, and a statute that would not conflict with another clause of the Constitution yet simply is an ultra vires act because it is beyond the limited enumerated powers granted to Congress. If you take the position that Congress lacked the power to pass certain parts of FISA (not necessarily that there is conflict with Article II) and, even if not, where there is conflict with Article II, it is void as applied, it should be quite obvious that Mukasey's testimony is not semantic, but rather open to the possibility of an alternate view, as Simon pointed out very well. I suppose Rubenfeld, at best, could be indicting Mukasey for giving ambiguous testimony, because he does not specifically state what his position is (much like his answer on torture). But then the burden really should be on Rubenfeld, or Kaus, if he has the intelligence to muster a cogent answer, to explain why President Bush's nominee should have to swear that he will uphold the rule of law as Yale Law professors see it, not as the President, who Takes Care that the law be faithfully executed, sees it, not as a jurist with many years on the bench sees it, and not how a plurality of the American people see it. It seems mighty inconsistent to ask Mukasey to pledge that he be independent and then criticize him for not advancing your partisan political agenda.

Trooper York said...

What he said. I think.

Mortimer Brezny said...

Just had an espresso.

Ann Althouse said...

"My, my, my Ann is castrating comments in here like a state-appointed dominatrix from the planet Amazonia-69."

LOL.

Glad you appreciate the sharp edge.

Darkbloom said...

If there's going to be any thread hijacking, we should leave that to Titus. 100% guaranteed it will be far more interesting than the do not call list.

Stephen said...

Webster's New Millennium™ Dictionary of English

Main Entry: kafuffle
Part of Speech: n
Definition: disorder, commotion; also written curfuffle, kerfuffle, gefuffle
Etymology: Gaelic cur 'twist, bend' + fuffle

Ann Althouse said...

Yeah, where is Titus?

And where's Simels?

Ann Althouse said...

Stephen, "Webster's" is a generic term, appropriated by the least reliable dictionary's (other than Merriam-Webster). As you can see in the etymology, the right prefix is "ker-," not "ka."

Luckyoldson said...

Trooper York said..."I thank the good lord that I was never on the "I don't know who I f*cking caught it from-was it you call lists." Dodged a bullet there."

Reminds me of when herpes was the sexual terror of the universe and I was living in Los Angeles.

I friend told that the way to find out if your potential sexual partner was infected was to tell them YOU had herpes.

If they said "no problem"...you knew they were.

Stephen said...
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Stephen said...
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Stephen said...

I am not sure why you are so hostile or why you harp on these little things, but the fact is that I wrote kerfuffle and the spell checker in the software said it was kafuffle, which surprised me, but I changed it. For what it is worth, the software on your page for these comments says that both are wrong.

I stopped by your page because I usually like your pictures. Your Simon - Rubenfeld piece caught my eye and I disagreed with you, so I wrote about it. I mainly thought Simon was raising a semantic point of little consequence. Professor Rubenfeld obviously does a very professorial job of defending himself, but I stand behind what I said and how I expressed it.

On other points, Simon may not be hiding his name, but I didn't see it on his home page or the about section, so I took the use of "Simon" to be an affectation. It will come as a surprise to many in your echo-chamber comments that to say that Justices Scalia and Thomas are process driven and not result driven, as Simon does, is an opinion and not fact.

Ann Althouse said...

Actually, Stephen, I didn't read your whole piece, only the first part that was about assuming that a Yale professor must be better than a guy who looked to you as though he only had a first name. That kind of argument by authority is bullshit in my book. And if it's not bullshit, then I'm a law professor and you're not, so what are you talking about? Either way it irked me, and you wrote that I was wrong, and in fact, I'm not wrong, but I really didn't have the time to read why you thought I was wrong. If you don't want me to be hostile, try treating me (and Simon) with more respect. I don't know why you are confused by this.

Mortimer Brezny said...

The first question — and what I regard as the real question — is whether Judge Mukasey's statements imply a presidential authority to ignore a federal statute in the following kind of case: (a) where both the president and the Congress possess constitutionally granted power over a certain subject matter; (b) where Congress has exercised its constitutionally granted power; but (c) where the president, in the exercise of his constitutional power, wants to do something that is otherwise constitutionally permissible, that he believes justified in the name of defending the nation (at least in wartime) as he thinks best, but that the enacted statute prevents him from doing.

The problem with this synopsis, which my post above addresses, is that there may be no overlap. It could be that (a) Congress simply lacks the authority to pass a statute of such scope (i.e., 70% of the statute is constitutional, but 30% is ultra vires) and the President's actions are thus not "otherwise constitutionally permissible" -- they are constitutionally permissible; or it could be that (b) the statute does not prevent the President from taking the "otherwise" constitutional behavior, because Article II trumps the 70%-part of the statute given the specifically exceptional facts of the case. Both my (a) and (b) are compatible with the notion that in the ordinary 70%-part case, the President's baseline/deafult power has been overriden by a specific and legitimate act of Congress, which is a simpler way of stating Jed Rubenfeld's (a)-(c). As we shall see, the no overlap problem afflicts much of the rest of Professor Rubenfeld's reasoning, because he thinks we are in the co-extensive area of the Venn diagram, rather than in the mutually exclusive zones. Let me point out a few examples:

1. Prof. Rubenfeld: "This is not an unintelligible position. Where two branches each have power over a certain subject matter, one must be supreme over the other, even if both are acting within their constitutionally granted powers."

Who says that is the case we are discussing?

2. Prof. Rubenfeld: "On my view, however, this position is plainly unacceptable, contrary to Youngstown, contrary to the supremacy clause, and a subversion of the Constitution’s foundational principles."

Except it was Robert Jackson who wrote that the Constititon is not a sucide pact, and so the belief in necessary overlap certainly cannot be attributed to him, especially given his discussion in Youngstown of the "twilight" of zone two.

3. Prof. Rubenfeld: "[T]hat in the cases specified, the statute becomes unconstitutional just because the statute has infringed on executive power."

Again, Rubenfeld cherry-picks an overlap case. Who says we're talking about overlapping cases? We aren't, under the no overlap theory.

4. Prof. Rubenfeld: "I think position (2) just is position (1), dressed up in different words; or, to put it the other way, that position (1) just is position (2), dressed up in different words. I take position (2) to be unacceptable precisely because it boils down to the same thing as position (1). I also take position (2) to be close, if not identical, to the position articulated in the repudiated 'torture memo.'"

Aha! A tacit admission that he simply thinks there is overlap. But if there is no overlap, all his analysis is off!

5. Prof. Rubenfeld: "Let me emphasize that I take both positions (1) and (2) to be distinguishable from position (3), which holds that the president has the authority to disregard a statute that unconstitutionally asserts congressional power over a subject matter that the Constitution simply does not grant Congress power over. Thus if Congress passed a statute ordering the deployment of troops in a fashion so specific that Congress had attempted to exercise a power that only the commander-in-chief possesses, Congress would not have been exercising one of its constitutionally granted powers and would not have passed a valid statute at all. By contrast, I take FISA and the military commissions act clearly to govern matters that both Congress and the president have powers over (at least, in FISA’s case, as applied to communications made by United States persons on United States soil). It follows that the president is simply breaking the law if he unilaterally violates these statutes, regardless of which position, (1), (2), or (3), is asserted in defense thereof."

And, voila! An explicit confession that he thinks there is overlap. But who says so? Not Mukasey! Rubenfeld says so because Rubenfeld says so. A tautology! He must have taken constitutional law from Michael Dorf! So, Rubenfeld may be doing advanced Dorftastic constitutional theorizing, but he ain't reading Mukasey's testimony. Mukasey certainly does not -- as Simon has already shown -- say that he believes there is overlap. And if there isn't, Rubenfeld's analysis is simply inapposite. I guess Clarence Thomas was right! A law degree there IS worth no more than 15 cents!

Mortimer Brezny said...

I mainly thought Simon was raising a semantic point of little consequence. Professor Rubenfeld obviously does a very professorial job of defending himself, but I stand behind what I said and how I expressed it.

Except Rubenfeld's "professorial job" is purely tautological and of little consequence. And while I am sure you are a real person with your own identity, if you're going to accuse Simon Dodd of using a fake name, the least you could do is stop using Philip Roth's picture.

From Inwood said...

Mort B

You said:

"It seems mighty inconsistent to ask Mukasey to pledge that he be independent and then criticize him for not advancing your partisan political agenda."

Wish I'd said that.

Trooper Y

Thanks.

Was in NYC two weeks ago. Didn’t get to Inwood.

Did get to the last Met’s win of the season.

Did walk across the Bklyn Bridge to the arts festival in DUMBO, off York, which is where I assume you get your nom de blogue. Was not impressed. Most interesting stop: a furniture shop for tots. Shows that either (1) I’m a philistine or (2) I know what’s worthy, I guess. Got to have brunch at the River Cafe with my friend the owner, tho & then took the water taxi around the Harbor.

Also went on a Night tour of Green Wood Cemetery. Saw a person on the tour who looked like she could be Prof A. At the end of the tour I approached her & asked “is your name ‘Ann’?” Obviously I’ve been, um, out of touch, since I got a look that one might get if he’d said “What’s a nice girl like you….” Oh well….

Prof A: Go there: One of the most exciting views of the Harbor & the skyline. (Watch out for guys who approach you!)















































































































































Trooper Y

Thanks.

Was in NYC two weeks ago. Didn’t get to Inwood.

Did get to the last Met’s win of the season.

Did walk across the Bklyn Bridge to the arts festival in DUMBO, off York, which is where I assume you get your nom de blogue. Was not impressed. Most interesting stop: a furniture shop for tots. Shows that either (1) I’m a philistine or (2) I know what’s worthy, I guess. Got to have brunch at the River Cafe with my friend the owner, tho & then took the water taxi around the Harbor.

Also went on a Night tour of Green Wood Cemetery. Saw a person on the tour who looked like she could be Prof A. At the end of the tour I approached her & asked “is your name ‘Ann’?” Obviously I’ve been out of touch, since I got a look that one might get if he’d said “What’s a nice girl like you….” Oh well….

Prof A: Go there: One of the most exciting views of the Harbor & the skyline. (Watch out for guys who approach you!)

laser72 said...

wow, a shout out from a law professor, that's something. Thanks Professor Rubenfeld!

Trooper York said...

From Inwood, a great place to get furniture on Jay St is a joint called the Source. Great heavy pieces that look fab in your dining room. I got three catty-corner liquor cabinets that are stocked full. Good stuff.

Stephen said...

But Ann, the first paragraph of my piece, the paragraph you say you actually read, is not an "argument." It is exposition setting up the argument.

Of course I colored things a little, don't you. Shouldn't "some kind of lawyer" do that? I was using "Yale Law Professor" to identify Mr. Rubenfeld. Do you ever call yourself a "law professor"? Oh wait, you just did.

Anyway, I was kind of using it in the same way you used "Preening, left-wing, he's-not-Mickey blogger," which I agree is much more classy.

Maybe it is just me, but when I criticize something, I usually at least scan the substance. As has apparently annoyed some of your acolytes, it is quite short, and if you had time to blog about it, you could have taken in eight more short paragraphs.

Basta for me.

Ann Althouse said...

I react to what I react to. In this case, the disrespect. And I happen to know I'm not wrong on the law. I don't have to read paragraphs of things just because my name is invoked. If I did, jerks would take over my life here in the blogosphere.

Luckyoldson said...

Ann Althouse said..."...jerks would take over my life here in the blogosphere."

Could you tone it down?

Too many jims said...

Regarding the update from Prof. Rubenfeld's e-mail. This reinforces my opinion from yesterday that this particular issue is an incredibly difficult one to write an op ed about for a general audience.

Mortimer Brezny said...

This reinforces my opinion from yesterday that this particular issue is an incredibly difficult one to write an op ed about for a general audience.

Except it isn't a general audience that's ripping apart Rubenfeld's analysis. It's law-bloggers, lawyers, and lawprofessors. In other words, people who aren't ignorant of the relevant issues.

Too many jims said...

Except it isn't a general audience that's ripping apart Rubenfeld's analysis. It's law-bloggers, lawyers, and lawprofessors. In other words, people who aren't ignorant of the relevant issues.

I have no idea if law bloggers and law professors are uniformly ripping his op ed. If it is not linked by this blog, Volokh or (on this issue) Sullivan, I am unlikely to read a law professor or law blogger. It is safe to say that lawyers (or at least some sort of lawyers) are not uniform in ripping the op ed.

Prof. Rubenfeld sent an 800 word email to Prof. Althouse explaining that he understands the difference that Simon pointed out but that he thinks "the two positions are in the end not distinguishable, so it is obfuscatory to try to make them sound distinct."

His op ed. was about 600 words. I doubt the editors would have let him have 800 extra words to explain a distinction he doesn't believe exists.

Ann Althouse said...

Too Many Jims, you assume that Rubenfeld is only capable of saying that in 800 words and the other in 600 words. I sure don't. Going long like he did in the email that is a way to try to make the reader feel overwhelmed and, consequently, to defer to what seems to be greater knowledge and learning. I'm sure he knows other ways of writing, and he chose what to put in his op-ed because it served his end of trying to make Mukasey seem bad.

From Inwood said...

Mort B

Good reply to the disdainful Rubenfeld apologist, TMJ.

We might say, then, that the blogosphere presents an incredibly difficult obstacle to some would-be “I am the expert here” op-ed wrier to sneak his prejudices past, & to present one-sided polemics to, an audience which consists, as you note, of “people who aren't ignorant of the relevant issues”.

In his response to you, he again misses your point, either ingenuously or disenguously. And he changes the terms, making it seem that you claimed that “law profs” were “uniformly” attacking Rubenfeld. (I would guess that “law profs” would “uniformly” avoid attacking Ruby since his superficial position amounts to attack Bush, attack Bush, but TMJ might see “attack Bush” as a relevant position in this debate!)

And Prof A, Simon, & you have shown to the TMJ’s that it’s not difficult at all for unprejudiced people to explain this issue or most Con Law isues to a “general” audience, by which I mean people who are, unlike Lake Wobegoners, of average intelligence.

Too many jims said...

From Inwood said...

Good reply to the disdainful Rubenfeld apologist, TMJ.


Who have I treated with disdain and how?

Luckyoldson said...

Too many jims asks: "Who have I treated with disdain and how?"

1. In Inwood's mind; The "Queen."

2. To most here; Any response that is not acceptable to the "pack."

Simon said...

Too many jims said...
"Prof. Rubenfeld sent an 800 word email to Prof. Althouse explaining that he understands the difference that Simon pointed out but that he thinks "the two positions are in the end not distinguishable, so it is obfuscatory to try to make them sound distinct." His op ed. was about 600 words. I doubt the editors would have let him have 800 extra words to explain a distinction he doesn't believe exists."

It seems to me that the distinction between what Mukasey actually said and what Jed represented him as saying are significant and obvious enough, regardless of whether you have 600 words or 800.

Simon said...

FromInwood:
"We might say, then, that the blogosphere presents an incredibly difficult obstacle to some would-be 'I am the expert here' op-ed wrier to sneak his prejudices past, & to present one-sided polemics to, an audience which consists, as you note, of 'people who aren't ignorant of the relevant issues'”.

Well, you'd hope so, but the facts remain that the possibility of being held up to scrutiny didn't dissuade him from writing it (or the NYT from running it), most of the people who read the NYT piece won't have done a technorati search for people taking issue with it, and alas, I suspect, most of the piece's target audience aren't going to be dissuaded from the view of Mukasey that Rubenfeld's piece aimed to engender by something as paltry and irrelevant as what Mukasey actually said.

Too many jims said...

Prof. Althouse,

I readily admit that was an assumption of mine. In fact, in drafting the comment, I initially included a reference to that assumption but deleted that paragraph because it became an "on the one hand it could have been shorter" and "on the other hand it could have needed to be longer if it was for an op ed" type of paragraph. I confess that I don't have enough of a handle on the substantive issue to say whether it should have taken him 250 or 1400 words to make the points. I do know (and continue to be reminded) that most writing should be tighter.

Let me also say, that I would have preferred fo Prof. Rubenfeld to at least acknowledge the point that Simon had raised. I just don't think that his failure to do so is the level of smear that Simon thinks it is. I chalked this slight up to the difficulties of writing about a complex issue in a confined space to broad audience.

I am curious about your take on his email. I had assumed the email was addressed to you. If so, do you really think he was trying to make you "feel overwhelmed and, consequently, to defer to what seems to be greater knowledge and learning" with 800 words? I don't know the guy, perhaps you do, but if the email was to you, you must think the guys is some kind of pompous ass. (And if the email was to someone else, the level of pompous might be lower but the level of ass would be just as high or higher.)

Mortimer Brezny said...

If so, do you really think he was trying to make you "feel overwhelmed and, consequently, to defer to what seems to be greater knowledge and learning" with 800 words?

No, idiot. He obviously sent it to her so she could post it on her website as a response to the thrashing he was getting. And if she didn't post it, he could always say "Oh, but I sent her a more elaborate explanation, which she refused to post, that lying bitch!"

Too many jims said...

Mortimer B.

That is why I thought he had emailed (presumably Prof. Althouse) but she appears to think the reason he ran so long in his email was that he was trying to intimidate with his status and pedigree.

But what do I know, I am an idiot.

Simon said...

Mort, do me a favor and drop me an email sometime? Address is in my profile.

Too many jims said...

I had missed Prof. Rubenfeld's reference to commenter "laser". Clearly the email was to Prof. Althouse.

If Prof. Althouse does think (and I take her at her word that she does) the reason he wrote such a lenghty email was to overwhelm her and to have her defer to apparent greater knowledge and learning all I can say is wow. That guy must be (or at least she must think he is) some monumental pompous ass. It is not like Prof. Althouse is chipped ham or something.

Mortimer Brezny said...

TMJ,

Here is what Ann said: "Going long like he did in the email that is a way to try to make the reader feel overwhelmed and, consequently, to defer to what seems to be greater knowledge and learning."

The reader is not necessarily herself, but rather his ultimate intended audience. You know, people reading Ann's blog.

From Inwood said...

TMJ

You treat all of us who disagree with Ruby with disdain when you indicate that the problem is not with his argument but what you see as his inability to realize that he has to spell it out in the simple terms possible to reach us’n who ‘r unable to understand complexities, to grasp nuances.

Simon

Don’t ruin my day! Perhaps I’m grasping at small victories, but let me have them! I agree that NYT epigones, fundamentalist true believers, etc, will never be swayed by arguments denying Revealed Truth. And I agree that the NYT will repeat Revealed Truth every day so that the faithful will be secure. I just note that that “target audience” is getting smaller.

Here’s where I’m coming from: until the Blogesphere, I was forced to listen at work, at parties, hell, at church socials, to people on the Left attack politicians on the Right with immunity. Their Bible was the NYT, CBS News, Time, etc. The NYT would say that 50% of the people in the US are reduced to eating dog food. I would sputter a dissent but the consensus, expressed consensus anyway, would be: who’re we gonna believe, Inwood & his simplistic amateur, extremist sources or the NYT with its expert resources & sources, witness this fact-filled story with the pictures of kids eating the stuff, just like those Depression pictures, which iconic paper of record no one, other than Inwood & a few other extremists on the Right (name calling – PC acceptable “labeling” - which is how the trolls operate here rather than actually addressing any arguments) has ever successfully challenged on substance.

If, say, two weeks or a month later, National Review or Commentary or even the Harvard Business Review had an article refuting the NYT dog food assertion & I brought it up, someone (sometimes even a Conservative or a Republican, not wishing to be “out-compassioned”) would say: old news, let’s move on.

Now, I can argue with people in real time & cite articles, etc. to those who are no longer fundamentalist, under educated, lazy NYT faithful, having seen that the MSM has no clothes on & that academia is far Left. They have at least stopped putting me down with a simplistic “How do I [i.e., they] know? The NYT (or CBS News) tells me so!” chant masquerading as argument.

And I'd like to think it's safe to say that except for the die-hard true believers who are fact free & fancy full, those who are paying attention do not feel that Mukasey is a fascist who will trample the Bill of Rights (or that Bush is mishandling the California fires, etc.). They understand that we’re not talking here about a President as dictator who will ignore the Rule of Law but a Commander-In-Chief with a primary Con Law duty to preserve & protect. And that we cannot have 535 Commanders-In-Chief.

Baby steps, baby steps.

Simon said...

Inwood - fair points all. :)

Too many jims said...

Mortimer Brezny said...

The reader is not necessarily herself, but rather his ultimate intended audience. You know, people reading Ann's blog.


Good and fair point. Although, I would say that while that may reduce the pompousness of him slightly, it increases his assiness.

Too many jims said...

Inwood,

You have misapprehended my point.

Stephen said...

This is why I put it more simply and you all made fun of me, how I look, my relative intelligence compared to my misguided brother which alternative spelling I chose and various other irrelevant points.

It all comes down to whether the President can assure us that some action is required by national security and trump everything. that is not the Constitution that I learned about in 8th grade civics.

JohnTaylor88 said...

that is not the Constitution that I learned about in 8th grade civics.

Your 8th grade Civics teacher was a Marxist fucktard.

Stephen said...

Like I said . . .

Simon said...

Stephen said...
"It all comes down to whether the President can assure us that some action is required by national security and trump everything."

Stephen, no one argues that this is the case, as I explained in my original post which you linked to, as I clarified in an update to that post since you obviously misunderstood it in the first place, and as many other people in this place and I don't doubt others have tried to explain to you.

Stephen said...
This comment has been removed by the author.
Stephen said...

Well, first, if you are so erudite, why is your best argument that I am "scrawling some graffiti on the sewer wall of the internet" just because I disagree with you? Not a lot of logic there. What are your qualifications, exactly?

The more you go on, the more clearly my descriptions of you as "self-righteous" and "right wing," are apt.

I don't really think the meaning of the word "unconstitutional" is all that important. I believe i understood the point you made, and I disagreed with it, but it was quite beside the point. What is important is that this administration thinks that 9/11 gave it a license to do whatever it wants, and it has been rudely surprised that even with its new lock step federalists on the Supreme Court, it has resisted.

Gonzales was about as independent as my left foot. The problem with Mukasey is that he is unwilling to tell us where he draws the line. In the course of doing this, he has decided to lie, a la Bork and a la Thomas, for example on whether he even knows what waterboarding is. I do not trust this man to follow in the line of James Comey or Jack Goldsmith to put some controls on the erosion of civil liberties, so I do not believe he should be confirmed.

If your response to this is to call names, I wonder who lives in the sewer.

1:12 AM

Simon said...

Stephen said...
" Well, first, if you are so erudite, why is your best argument that I am 'scrawling some graffiti on the sewer wall of the internet' just because I disagree with you? Not a lot of logic there."

(1) That wasn't my best argument, and I disagreed with you substantively in other places; (2) it always bears pointing out that the Huffington Post is the sewer of the internet; and (3) the problem isn't that you disagree with me, it's that you chose to wholly and very possibly willfully misrepresent my remarks (and Mukasey's for that matter), creating and burning a straw man rather than disagreeing and presenting a counter-argument in good faith. Not to mention that you opening gambit was to toss some ad hominem in my direction, so don't try to act like you're sitting on a high horse here.

"I don't really think the meaning of the word "unconstitutional" is all that important."

I think it's all-important. It's the different between using it as window-dressing to vilify a policy you disagree with, on the one hand, or having a serious debate about the contours of the powers granted and managed by the Constitution.

"I believe i understood the point you made, and I disagreed with it, but it was quite beside the point."

If you understood it, you went to great lengths to misrepresent it. And judging by the rest of your response, the "point" is to throw out as many buzzwords as you can in the hope it will stick - it seems faintly amusing that having complained that my argument, which was precisely on-point, is beside the point, you throw some mud in the direction of Clarence Thomas and Robert Bork, who really are beside the point, unless "the point" is to berate those evil right wing folks you seem to think are the enemy.

Harvard Anti-Torture said...

Please join us in protest.

This is the end of the line. When a nominee for Attorney General does not concede that waterboarding is illegal explicitly in order to protect waterboarders from criminal liability, there is nothing left but shame and mourning.

We call upon others to join us in our symbolic protest at www.stop-torture.org by posting a silent, drowning black.