Liberty Law Blog

Government Wrongdoing and the Need for Oversight

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In a world where government does so much, there is all the more need for transparency and public oversight. Here, of course, would be the place to insert a joke about the most transparent administration in history, but to be honest these problems are not restricted to one party.

A recent report issued by the Project on Government Oversight, based on records acquired from the government, indicates that Justice Department prosecutors have engaged in a large number of serious infractions:

An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work. The violations include instances in which attorneys who have a duty to uphold justice have, according to the internal affairs office, misled courts, withheld evidence that could have helped defendants, abused prosecutorial and investigative power, and violated constitutional rights. From fiscal year 2002 through fiscal year 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 infractions, according to a Project On Government Oversight review of data obtained through the Freedom of Information Act and from OPR reports. In the majority of the matters—more than 400—OPR categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.

While this information is helpful, it would be even more valuable if the particular prosecutors who engaged in the wrongdoing and the cases involved were identified. Yet, the Justice Department refuses to do so. This is yet another example of government protecting its own employees from proper scrutiny.

In 1993, Deptury Attorney General Philip Heymann announced a policy of broader disclosure.

Subsequently, OPR released detailed accounts of investigations naming the offenders in some cases where misconduct was found. Those accounts, which OPR described as summarized reports, were more elaborate than the brief summaries in the annual reports.

This was a step in the right direction. But alas the Justice Department under George W. Bush “abandoned the policy Heymann had articulated in 1993”:

In a 2008 story about a “growing shroud of secrecy” at OPR, the Los Angeles Times reported that the Justice Department had reversed the Clinton-era policy. It didn’t say when that happened, but it reported that Associate Deputy Attorney General David Margolis said it was his decision to excuse the OPR from preparing summaries of cases that might be released to the public. According to the newspaper, Margolis said the decision reflected a lack of resources and concern about balancing public interests with the privacy rights of individual attorneys facing accusations.

How compelling! The Justice Department was merely saving public resources and protecting privacy. That government attorneys who have engaged in misconduct that affects the interests of specific individuals should have privacy interests is hard to justify.

As with so many other things, the Bush Administration paved the way for the Obama Administration.

It is time for these policies to be reversed. And for the Congress to take action. One reform would be to authorize the Justice Department’s inspector general to investigate attorney misconduct, a power it currently lacks. Legislation supported by Senators from both parties has been introduced to authorize such investigations.

A Failure of Intelligence

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A Russian tank rolls outside a former Ukrainian military base in Perevalnoye, near the Crimean capital Simferopol.

A Russian tank rolls outside a former Ukrainian military base in Perevalnoye, near the Crimean capital Simferopol.

Last week, intelligence officials and congressional overseers were telling the Wall Street Journal that the U.S. government had been surprised by Vladimir Putin’s seizure of the Crimea “because they hadn’t intercepted any telltale communications where Russian leaders, military commanders or soldiers discussed plans to invade.” Meanwhile, debates on intelligence within the government and the policy community were focusing on how to regulate the interception of ordinary Americans’ communications. Establishment Republicans were particularly keen on making sure the practice continued. Continue Reading →

Obamacare, the NSA’s Metadata Collection Program, and the Separation of Powers

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US-POLITICS-OBAMA-RETURNThe brilliant light that burst over the Northwest quadrant of the nation’s capital Thursday was not a sunrise. Illuminating the skies above the White House was the light bulb of discovery, in this case of an antiquated constitutional ideal: the separation of powers. The NSA metadata program having been authorized by Congress, the President announced plans to seek its reform by Congress. He is to be commended for involving the legislative branch of government in a decision involving, well, legislation. Continue Reading →

Friday Roundup, March 28th

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The Common Core’s Pedagogical Tomfoolery

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One frequently hears that the Common Core standards are merely standards and expectations that do not dictate curriculum or pedagogy. Common Core proponents argue that those national standards do not interfere with the ability of teachers to use their preferred pedagogical approaches, and do not further interfere with local autonomy over the curriculum. Continue Reading →

Oxfam’s Flimflam

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Goat Gifts: Oxfam’s Unwrapped Campaign

A report of the British charity Oxfam recently drew attention to the fact that Britain’s five richest families had more assets than the lowest 20 per cent of the population put together. It called upon the government to consider instituting a wealth tax to reduce the gap, by how much it did not say. Would the poorest fifth be much the better off, or at least happier, if 20, say, or 50, rather than five families now had more wealth than they? Continue Reading →

Responding to Tim Sandefur

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Over at his blog, Tim Sandefur asks some questions about my new book with John McGinnis, Originalism and the Good Constitution. While I can’t answer all of his questions in a single post, let me address his first two basic points. Start with his first point:

What, then, do we do about existing precedent that diverges from the original meaning? A die hard Originalist might say, Jettison this precedent. But Rappaport and McGinnis don’t. They argue that where precedent diverges from the original meaning, we should continue to follow such precedent if overruling it would impose “enormous costs,” and where the existing precedent is “entrenched,” meaning that a strong consensus supports that precedent today.

My question is this: this escape hatch from the apparent requirements of Originalism is not based on anything intrinsic to the Originalist commitment. It’s ordinary cost-benefit analysis, and notably contemporary in its focus. What connection is there between the Originalist notion of fidelity to the original language, and this apparent permission to escape from that commitment?

In our view, the original meaning of the Constitution allows precedent. It does not, for the most part, specify what that precedent is. Instead, it treats precedent rules as a matter of common law that is revisable by congressional statute. Since precedent rules can be enacted by statute, we discuss what we believe would be the best precedent rules based on our preferred normative approach – welfare consequentialism (a form of utilitarianism). We do not justify this precedent approach based on the Framers’ values, but there is no need to do so. Ordinary legislation today does not have to follow the Framers’ view about what is good legislation (so long as it is constitutional). Similarly, precedent rules do not have to follow the Framers’ view about precedent. Continue Reading →

Health Care Policy that Kills

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A recent letter from Congressman Henry Waxman, demanding that a pharmaceutical company justify its pricing of Solvadi, a new drug to cure Hepatitis C, precipitated a selloff in biotech stocks. Waxman’s concern about Solvadi’s price does not appear well-founded when one compares Solvadi to the alternatives.  While more expensive per dose than the previous treatments, Solvadi is more effective and requires a shorter course, marking it as a substantial advance for curing this serious illness.

The Congressman’s intervention raises larger questions about the relation of government policy to innovation. Anyone who is getting older—and that is all of us—should see medical innovation as one of the most important measures, if not the most important measure, of a successful health policy. As Eric Topol details in his fine book, The Creative Destruction of Medicine, technological acceleration, including advances in genomics and stem cell research, suggests that we are on the cusp of a golden age of medical innovation. But government-imposed price controls and other policies can reduce the incentives for devising new treatments, resulting in preventable death and illness.

Sadly, our health care debate does not sufficiently focus on innovation. Indeed, the very name of the so-called Affordable Care Act emphasizes the current cost of health care, not its benefits, and certainly not future benefits from innovation. Supporters of the Act have focused on holding down health care costs and limiting their growth. Continue Reading →

Declaratory Judgment as a Quasi-Injunction

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Traditionally, in order to obtain an injunction, a plaintiff must prove four elements: “A plaintiff seeking a preliminary injunction must establish that he is (1) likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and that an (4) injunction is in the public interest. If an injunction is issued, a defendant is ordered to do, or not to do something. Failure to comply with the order can result in contempt of court.

Continue Reading →