Dorf on Law

By Mike Dorf For better or worse, President Obama's articulation of his reasons for committing U.S. air power to the civilian protection mission in Libya is already coming to be known as the "Obama Doctrine."  Rather than try to sum it up myself, I'll quote the key passage from Monday night's speech , in which the President explained the factors that led him to the decision he took, which tacitly includes reasons for why he has not authorized similar action in other countries where civilians are under threat: In this particular country – Libya; at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Gaddafi's forces in their tracks without putting American troops on the ground. Let...

-- Posted by Neil H. Buchanan On Monday, I posted some thoughts on a NYT opinion column by Greg Mankiw, an economist at Harvard who once served as George W. Bush's chief economic advisor. My central purpose in that post was to show that Mankiw's unsupported (and unsupportable) assertion that health care inflation is an incontrovertible technical fact of life allowed him to protect the powerful interests who benefit from our bloated system of health care finance: the health insurance companies who have pushed our medical system's costs to levels unseen in any country in the world. Having sub silentio absolved the real culprits in our budget drama, Mankiw was then able to advance an agenda that would amount to nothing short of a direct transfer of wealth and power from the vast majority of Americans to those corporate interests: enacting deep cuts in Social Security, forcing people to pay more for health insurance policies that would provide minimal benefits, raising taxes...

By Mike Dorf Last week South Dakota enacted a new law requiring that a woman seeking an abortion wait three days after her initial consultation with a physician before she may obtain the abortion from that same physician.  Because the state apparently has only one clinic that offers non-emergency abortions, and the doctor who performs them comes in from out of state only once a week, the law effectively amounts to a one-week waiting period for an abortion.  Moreover, during the waiting period, the woman must visit a "pregnancy help center," essentially a pro-life organization that will try to persuade her not to have an abortion by, among other things, providing information on the assistance available to her should she decide to carry the pregnancy to term. For news coverage, click here .  For a parodic account of what the relevant counseling involves, see the following clip from  Citizen Ruth   (warning: contains profanity): Get the Flash Player to ...

-- Posted by Neil H. Buchanan In the new, know-nothing era of hysteria about budget deficits and government spending, a literary sub-genre has emerged. Those who decry the nation's supposed fiscal recklessness describe the dire consequences that surely lie in our future, accompanied by a plea to act before it is too late. An ideal distillation of this new literary form appeared in yesterday's Sunday Business section of The New York Times, in the form of N. Gregory Mankiw's quadriweekly opinion column. The column provides an especially clear summary of the arguments and assumptions necessary to conclude that people must be made to suffer now, in the name of fiscal rectitude. Pitched as a hypothetical Presidential address to the nation in 2026, in which the unnamed chief executive reluctantly announces immediate and painful austerity measures in response to a bond crisis, the column is a study in false choices and rationalizations for protecting the health insurance indu...

-- Posted by Neil H. Buchanan In my post yesterday , I discussed the proposed Tax Receipt Act, which would provide a very limited amount of information on federal spending to each person who files an income tax return each year. I argued that the idea was likely to (and was probably in part designed to) create pressure for unnecessary and damaging cuts in future Social Security benefits, thus relieving pressure on the real culprit of any possible long-term debt drama: health care costs. (As Paul Krugman recently noted , the forecasts on which budget hawks rely show that any long-run debt problems can be summarized "in seven words: health care, health care, health care, revenue." In other words, the Bush/Obama tax cuts are the only other moving part that matters.) I also argued that the motivating idea behind sending receipts to taxpayers was fundamentally anti-democratic, as well as inherently misleading. Even so, there is a great deal of support for tax receipts among De...

-- Posted by Neil H. Buchanan It is clear that few people have anything resembling a decent grasp of the federal budget. The public and the pundits tend to talk about "spending" in undifferentiated terms, with far too many treating spending by governments as the cause of -- rather than a necessary part of the solution to -- the ongoing effects of the recent economic collapse. The level of ignorance is such that polls show people simultaneously wanting the government to do more of almost everything, but to cut overall spending. It is tempting, therefore, to want to educate the public. How can an ignorant electorate be a good thing? If only people understood that foreign aid -- to take the most outstanding example -- is a tiny part of federal spending, they might be shaken out of their complacent belief that the deficit could be erased simply by withholding our largess from ungrateful foreigners. Moreover, even those Americans with less chauvinistic views would certainly b...

By Mike Dorf On  Monday  I parsed the text of the U.N. Security Council Resolution authorizing force to protect Libyan civilians and to enforce a no-fly zone over Libya.  I promised two follow-ups on the U.N. Security Council decision-making process, but then yesterday I pre-empted one of those posts to address the domestic constitutionality of President Obama's acting without prior congressional approval.  Today I return to my original plan, consolidating the two follow-ups into this one discussion. Let's begin with the basics.  Under Article 51 of the U.N. Charter , the unilateral or collective use of force is permitted to repel an armed attack.  (This was the U.S. justification for going to war in Afghanistan following 9/11.)  Defensive war, in other words, can be waged without prior approval from the U.N. Security Council.  The Security Council can also authorize the use of international armed force pursuant to Articles 39-49 in order t...

By Mike Dorf Okay, this is not the promised Part 2 of my series on the military action in Libya.  Tomorrow, I'll consolidate what had been planned Parts 2 and 3 into a single post that uses the Libyan intervention as an occasion to discuss the U.N. system for authorizing the use of military force.  Here I want to address the question of whether President Obama was required to go to Congress before committing the U.S. to supply the lion's share of the initial dose of air power to enforce U.N. Security Council Resolution 1973.  Purporting to comply with the War Powers Resolution, President Obama sent a letter to Congress yesterday explaining the reasons for his actions.  Do they satisfy the Constitution?  Here I'll address some aspects of that question. (1) It is unlikely that any court would declare the military action unconstitutional.  For one thing, U.S. involvement could be over before any case gets to court.  More fundamentally, the question w...

By Mike Dorf Absent unexpected intervening events, I'm devoting my three blog posts this week to U.N. Security Council Resolution 1973 (2011) , which authorized the establishment of a no-fly zone over Libya and the use of "all necessary measures" to protect Libyan civilians.  Today's post will highlight potential difficulties in the text of the resolution.  Tomorrow, I'll look at the factors that appear to go into a Security Council decision to authorize force in a case like Libya but not in other, seemingly similar cases--including Bahrain, Yemen, and Syria right now, and the Darfur region of the Sudan very recently.  On Wednesday I'll broaden my focus to ask whether the U.N. system for authorizing warfare makes sense. Precisely what measures does Resolution 1973 authorize?  The issue was nicely framed by Russia.  According to the official summary in the U.N. press release : VITALY CHURKIN ( Russian Federation ) said he had abstained, although his coun...

-- Posted by Neil H. Buchanan Even in these early stages of the unfolding disaster at the Fukushima Daiichi nuclear plant in Japan, it is becoming clear that countries both rich and poor will be forced to reassess their policies with regard to nuclear power. France derives three-quarters of its electrical power from nukes, and many rapidly developing countries (such as Chile) have been planning to use nuclear power to fuel their development. In the U.S., the political reaction has thus far been tentative , in large part because both President Obama and his fiercest political opponents have long been advocates for licensing and building new plants. Obama did not utter any exquisitely poorly timed comments regarding nuclear power, as when he declared deepwater drilling to be safe shortly before the BP spill -- although his recently-released budget does include $36 billion in loan guarantees for building new nukes. Still, there is little appetite in the U.S. to do anything but t...

-- Posted by Neil H. Buchanan Last Spring, in the early days of the Deepwater Horizon oil disaster in the Gulf of Mexico, I wrote a FindLaw column (remember those?) and a related Dorf on Law post , arguing that the spill had provided new evidence about the choices between oil, coal, and nuclear power. Specifically, I argued that we tend to underestimate the costs of low-probability/high-cost events, precisely because they are low probability (and thus are rarely or never actually experienced). Even now, we really have no idea how much damage has been done by the spill in the Gulf, nor do we know whether some of the damage is still getting worse. Most people were surprised to learn that there actually had been at least one other oil spill of similar size, but even two or three such disasters do not provide us with enough evidence to know with any precision the true consequences of a major catastrophe. Today, of course, the unfolding energy-related disaster relates to nuclear power. ...