Spare tire or fifth wheel?

October 27, 2008

In an NYT op-ed today, Glenn Reynolds performs dizzying feats of illogic, twisting and stretching a strict-constructionist definition of the vice-presidency like a balloon animal at a children’s birthday party:

The most important function of a vice president is to serve as a spare president. Using the spare president in the ordinary course of business is as unwise as driving on one’s spare tire. Spares should be kept pristine, for when they are really needed.

If the president resigns or is removed from office, a vice president who has been involved in the activities of the executive branch is also likely to be at risk for impeachment. Just as important, a vice president who is enmeshed in the affairs of the president cannot offer a fresh start for the executive branch.

This odd line of defense of Sarah Palin’s ignorant statements on the subject has very little basis in either precedent or case-law (and last time I checked, that was still the way our legal system was supposed to operate).

Reynolds has been making the same case for years, but has still not found a way around earlier critiques of his underlying assumption that it is illegal for the president to delegate executive powers to elected officials.

In calling for congress to legislate the responsibilities of the VP’s office, Reynolds thus endorses a strangely activist interpretation of the constitution that does not reflect the evolution of the executive branch during the last half century. Forgive me if I’m missing something here, but I just don’t see the point (beyond reading this as a chivalrous effort to save Palin from herself).

If the congress wants to take action to prevent Cheney-esque abuses of power in the future, there are more restrained and direct ways of doing so that do not involve such precious legal reasoning.

Ian Urbina of the NYT reports on a very troubling decision handed down by the Sixth Circuit Federal appeals court:

More than 200,000 registered Ohio voters may be blocked from casting regular ballots on Election Day because of a federal appeals court decision on Tuesday requiring the disclosure of lists of voters whose names did not match those on government databases, state election officials and voting experts said.

According to one O-State voting law prof., the judges must have taken a whopping dose of unconstitutional before issuing the ruling:

Daniel P. Tokaji, a law professor and voting expert at Ohio State University, said he thought the appellate decision was wrong. He said the stated purpose of the “matching” requirement in the federal law, the 2002 Help America Vote Act, was to accelerate procedures at the polls, somewhat like an E-Zpass lane at highway toll plazas. It was meant to allow voters to avoid showing identification if they had already been screened using database checks, he said.

The federal matching requirement, Mr. Tokaji said, was not meant to determine eligibility, deter voter fraud or raise added barriers for voters by forcing some to vote provisionally. “The majority judges don’t seem to grasp this point,” he said.

There is a real risk of large-scale challenges of voters on Election Day, said Richard L. Hasen, a professor at Loyola Law School in Los Angeles, but he added that any effort to use the list to purge the rolls before then could violate the federal provision that prohibits systematic voter removal purges within 90 days of a federal election.

This case and the judgment are the direct result of the profoundly inaccurate “voter fraud” narratives swirling out of desperate right wing circles at the moment.

Most egregiously, the ruling has no basis in any empirical evidence that fake registrations actually lead to fraudulent votes. Absent such evidence, any effort to challenge voters at the polls or require provisional ballots is a waste of government money and citizens’ time. It also makes it that much more difficult for vulnerable populations (the folks most likely to be challenged on the basis of poorly maintained federal database information) to exercise their rights and responsibilities on election day.

On a separate note, I’m curious if there’s any research out there that looks at whether the number of legal challenges related to voting laws is significantly higher in swing states/districts.

My untutored suspicion is that courts in sensitive regions are being abused on this issue and are being asked to devote a disproportionate amount of time and resources to refereeing a partisan tug of war.

Once again, the Internet confounds legal regimes based on pure territorial jurisdiction…

and this despite whatever Jack Goldsmith and Tim Wu might have told you in the past.

As always, well-informed legal analysis (this time of the AP-Drudge Retort spat) from David Ardia and the folks at the Berkman Center’s Citizen Media Law Project.

(Full disclosure: I work at Berkman, although not in conjunction with the CMLP).

More depressing, but important news passed along from the EFF:

It looks like Sweden is on the verge of passing some spectacularly invasive legislation allowing large-scale web traffic data-mining. This is a surprise to me given Sweden’s history of protecting digital freedoms.

Here’s the EFF article.

Here’s the Facebook Group opposing the agreement.

Here’s the official protest site (in Swedish).

Yep, just like the badge over on the right says, I’m going to the Berkman@10 Conference tomorrow morning.

Should be an exciting event (just click the badge for more details). While I have no intention of live-blogging, I will try to post some periodic updates here about the presentations and conversations that happen there.

The list of attendees is pretty awesome (and intimidating!), definitely a star-studded crew.

I won’t go into more detail, except to note that for purely selfish reasons, I was most excited to see that Ronaldo Lemos, Director of the Center for Technology and Society at FGV Rio and current chair-person of iCommons, will be in attendance. A couple of weeks ago, I saw him give a few excellent panel presentations at the Forúm Internacional de Software Livre in Porto Alegre. Now maybe I’ll have a chance to ask him some questions about the talk (and practice my portuguese).

Copyright law guru William Patry takes a look at Robert Merton’s thoughts on the ownership of ideas.

The moral of the story: the notion of originality (and therefore ownership in some sense) is vastly overrated.

Patry links to a number of Merton’s essays as well as his ASA Presidential address. I’ll be following up since I’m long overdue to read a lot more Merton.

I missed this when it first came out a couple of days ago: the Electronic Frontier Foundation’s Richard Esquerra offers another insightful critique of the so-called PRO-IP Act, also known as H.R.4279.

Here’s my favorite piece of Esquerra’s argument against the bill:

The most outrageous provisions would create new and unnecessary federal bureaucracies devoted to intellectual property enforcement. None seems more ridiculous than language creating a Cabinet-level “IP enforcement czar” that would report to the President and coordinate enforcement efforts across government, a proposal that has been loudly opposed by the Department of Justice. Why is Congress spending our tax dollars on a new layer of officialdom that the cops themselves don’t want or need?

Gee, that one’s easy: because the content industry lobby groups and big telecommunications firms pay the representatives (ahem, John Conyers) good money for their favors.

But I digress…here’s more from Esquerra (with a little emphasis added):

Moreover, the bill also includes provisions — such as expanded forfeiture penalties and language “clarifying” that copyright registration is not required for criminal enforcement of the copyright — that could be read to open the door to increased prosecution against individuals or innovators as well as large-scale commercial pirates.

Increased prosecution against individuals and innovators?! As if the courts weren’t already clogged with the specious arguments of record companies, software firms, etc.

Until someone adequately explains otherwise, I’m going to maintain that H.R.4279 is a digital pork fest thinly disguised as actual policy-making.

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