On the Constitutionality of the Al-Aulaqi Killing

Posted in Law on 20111110 by Avenging Sword

I had planned to do a post about the constitutionality of the Al-Aulaqi killing.  Prior to completing that post, however, I discovered that John Dehn had already addressed the issue in a pair of posts on Cato’s website.  See here and here.  Basically, Dehn argues that, under Supreme Court decisions like the Prize Cases and Hamdi v. Rumsfeld, “lethal targeting of U.S. citizens who are part of an enemy army or force in armed conflict with the United States is entirely constitutional if it is otherwise consistent with the laws of war,” even “without a prior adjudication of guilt . . . .”  Admittedly, Dehn does not specifically consider whether Al-Aulaqi was indeed targetable under the laws of war.  However, this article by Robert Chesney does, and (mostly) answers that question in the affirmative.

I find Chesney’s analysis, and Dehn’s, persuasive.  Consequently, I am inclined to stand by my previously-expressed view regarding Al-Aulaqi’s killing.

Ego-Boosting Anti-Semitism

Posted in Random on 20111021 by Avenging Sword

A recent David Samuels interview with Edward Luttwak (HT Tyler Cowen) includes this hilarious excerpt:

[Samuels:]  There have been many different explanations given over the past 10 years for the strength of the American-Israeli relationship, ranging from the idea that Israel has the best and most immediately deployable army in the Middle East, to the idea that a small cabal of wealthy and influential Jews has hijacked American foreign policy.

[Luttwak:] You mean the Z.O.G.? The Zionist Occupied Government?


Personally, from an emotional point of view, myself, as me, I prefer the Z.O.G. explanation above all others. I love the idea that the Zionists have sufficient power to actually occupy America, and through America to basically run the world. I love the idea of being a member of a secretive and powerful cabal. If you put my name Luttwak together with Perle and Wolfowitz and you search the Internet, you will get this little list of people who run the American government and the world, and I’m on it. I love that.

Anytime you need an added jolt of ego gratification, you open your laptop and confirm the fact that you rule the world.

In Pakistan, there are millions of people who go to schools where they are taught that I am the ruler of the universe. So, emotionally speaking, I would explain everything that happens by referring to the Z.O.G., the Zionist Occupied Government, which is run by a small cabal of people, and that I am one of them.[1]

This reminded me of a line by Jack Ryan in Tom Clancy’s “Clear and Present Danger”:

Some old guy on the shtetl in Czarist Russia . . . was reading the hate rag of the antisemites – you know, the Jews are doing this, the Jews are doing that.  So a neighbor asked him why he got it, and the old guy answered that it was nice to see how powerful he was.[2]

I’m not sure if the latter story is actually true, but I find it funny nevertheless.

[1] Luttwak’s more serious explanation for the US-Israel relationship is a “solid mass of foreign-aware Americans, who also happen to be Bible-believers—we’re talking 50 million people—to [whom], the only foreign policy that counts is America’s support for Israel. Period.”  I find this response significantly less entertaining.

[2] Tom Clancy, Clear and Present Danger, in Three Complete Novels 371, 672 (1994)

Al-Awlaki Killing Links

Posted in Law, Mil on 20111002 by Avenging Sword

As Steve recently noted, Anwar Al-Awlaki was killed via US drone strike in Yemen a few days ago.  Out of the commentary provoked by this action, here are a few pieces that caught my eye:

  • In the NYT, Jack Goldsmith defends the legality of the killing.
  • Kenneth Anderson at VC gives some cogent thoughts on the matter.
  • Robert Chesney comments re. Al-Awlaki’s role as an operational leader, and the inaccessibility of his location.
  • Michael Lewis comments re. the laws of war & neutrality law.
  • Benjamin Wittes addresses the issue of due process.
  • Michael Ramsey offers an originalist perspective regarding the killing.
  • Marty Lederman makes a very educated guess about the contents of the Obama administration’s legal justification for killing Osama bin Laden.  (Somewhat apropos, since both killings implicate many of the same legal issues.)
  • A more critical perspective comes from Ta-Nehishi Coates (who rounds up the views of other like-minded individuals); and from Mary Ellen O’Connell.  (Of note:  the latter scholar was only able to square OBL’s killing with her view of the law by – unpersuasively, IMHO – characterizing the Abbottabad raid as having “followed law enforcement standards.”)

Also worth noting is this article by Robert Chesney, which explains why the Al-Awlaki killing was consistent with international law.  I find his argument persuasive.

In my (tentative) view, the Al-Awlaki killing was permissible under U.S. statutory & constitutional law.  More on that at a later date (hopefully).

Infectious Disease & the Law

Posted in Law on 20110928 by Avenging Sword

In response to comments by H.M. Stuart & one Lee Pierson regarding Steve’s recent vaccination post, I figured I’d take a stab at the legal & constitutional aspects of mandatory vaccination & quarantine measures.  Note:  I’m a layman, not a lawyer, and I haven’t studied this matter in detail; so take what follows with a grain of salt.

1.       From a federal constitutional standpoint, mandatory vaccination is not analogous to the ACA’s individual mandate provision, since vaccination is primarily mandated by state – not federal – law.[1]  Such laws are enacted as part of states’ police power, which does not implicate the strictures of Article I.

2.       State sovereignty is not absolute; the Constitution places many limits upon state action,[2] and empowers federal courts[3] (and sometimes Congress[4]) to enforce these limits.  However, state vaccination mandates have long been deemed consistent with these limits.[5]

3.       Federal & state quarantine authorities derive from the Commerce Clause & state police powers, respectively.[6]  Federal law primarily concerns the military,[7] as well as interstate & foreign travel.[8]  The primary constitutional limit upon quarantine powers isn’t the First Amendment’s association clause, but rather due process & the writ of habeas corpus.[9]

Corrections & comments welcome.

[1] Kathleen S. Swendiman, Cong. Research Serv., RS21414, Mandatory Vaccinations: Precedent and Current Laws 2-4 (2011), available at http://www.fas.org/sgp/crs/misc/RS21414.pdf.  Federal vaccination mandates do extend to immigrants & the military.  Id. at 7-8.

[2] See, e.g., U.S. Const. art. I, § 10; U.S. Const. amend. XIV, § 1.

[3] See, e.g., Randy E. Barnett, The Original Meaning of the Judicial Power, 12 S. Ct. Econ. Rev. 115, 123-125 (2004); Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 948-951, 958, 960, 964 (2003).

[4] See, e.g., U.S. Const. amend. XIV, § 5.

[5] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[6] Kathleen S. Swendiman & Jennifer K. Elsea, Cong. Research Serv., RL33201, Federal and State Quarantine and Isolation Authority 3-4 (2007), available at http://www.fas.org/sgp/crs/misc/RL33201.pdf.

[7] 42 U.S.C. § 266 (2006).

[8] 42 U.S.C. § 264 (2006).

[9] See Swendiman & Elsea, supra note 6, at 12-15.

Buffett v. The Data, Part Deux

Posted in Econ on 20110922 by Avenging Sword

In the comments of my previous post, co-blogger Steve stated, “[o]nly at the very top do taxes become regressive”; and – by way of supporting this statement – pointed (indirectly) to an IRS report regarding the 400 highest-AGI tax returns for 2008.  The data from this report, as well as other IRS data for that year, illustrates two things:

  1. Effective income tax rates do start to decline at the highest income levels.
  2. OTOH, the effective income tax rates at those levels remain well above those for most lower-income categories.

These points are graphically illustrated in Figure 1, which gives the effective income tax rates for various Adjusted Gross Income categories in 2008.

Figure 1

Granted, Fig. 1 only considers income taxes.  However, as Figure 2 shows, the aforementioned points remain valid when we include other federal taxes (e.g., FICA, excise, corporate).

Figure 2

I find it hard to get excited about the very-very-rich paying a somewhat lower federal tax rate than the very-rich, when rates for both groups remain higher than those for most other income categories.

Sources and Notes

In Figure 1:

  • The effective income tax rates for the categories between $1 & $50k, and between $500k & $10 mil, were calculated using the Adjusted Gross Income data in col. 2 of this IRS table, and the “Total income tax” numbers in col. 41 of this table.
  • The effective income tax rates for the categories between 50k & 500k were calculated using the AGI & “Total income tax” numbers from columns 2 & 62, respectively, of Table B in IRS Publication 1304 (Rev. 07-2010).
  • The effective income tax rate for the “Top 400” was calculated using 2008 AGI & aggregate income tax data from Table 1, pp. 1 & 10, of this IRS report.
  • The aggregate AGI for the “$10 mil+ ex Top 400” category was calculated by subtracting the AGI for the top 400 from the AGI of the “$10,000,000 or more” category in this table; the same procedure was used to calculate the aggregate income tax for the “$10 mil+ ex Top 400” category.

Figure 2 was generated using the 2005 Total Effective Federal Tax Rate data in Table 1 of this CBO report.

Tax Distribution: Buffett v. The Data

Posted in Econ on 20110920 by Avenging Sword

This post is all Warren Buffett’s fault.  When I read his recent NYT op-ed (HT Karen Street), this paragraph jumped out at me:

Last year my federal tax bill — the income tax I paid, as well as payroll taxes paid by me and on my behalf — was $6,938,744. That sounds like a lot of money. But what I paid was only 17.4 percent of my taxable income — and that’s actually a lower percentage than was paid by any of the other 20 people in our office. Their tax burdens ranged from 33 percent to 41 percent and averaged 36 percent.

The implication is that the federal tax system is regressive, such that Buffett & others at his income level have lower effective federal tax rates than the rest of us.  Or, at Buffett might put it, our tax system (unnecessarily) “coddle[s]” “super-rich” individuals such as himself.  However, it appears that Buffett’s anecdotal evidence is not representative of the federal tax system as a whole.  From a recent CBS news story:

This year, households making more than $1 million will pay an average of 29.1 percent of their income in federal taxes, including income taxes and payroll taxes, according to the Tax Policy Center, a Washington think tank.

Households making between $50,000 and $75,000 will pay 15 percent of their income in federal taxes.

Lower-income households will pay less. For example, households making between $40,000 and $50,000 will pay an average of 12.5 percent of their income in federal taxes. Households making between $20,000 and $30,000 will pay 5.7 percent.

The latest IRS data is a few years older and it’s limited to federal income taxes but it shows much the same thing. In 2009, taxpayers who made $1 million or more paid on average 24.4 percent of their income in federal income taxes, according to the IRS.

Those making $100,000 to $125,000 paid on average 9.9 percent in federal income taxes. Those making $50,000 to $60,000 paid an average of 6.3 percent.

For those so inclined, the sources for the above can be found in this Tax Policy Center table, and on p. 23, Fig. 4 of the IRS’s Statistics of Income–2009 Individual Income Tax Returns.  (See also this report from Citizens for Tax Justice, which gives similar results.)

Given my previous forays into tax-distribution issues, these results do not surprise me.

Random Links

Posted in Random on 20110915 by Avenging Sword

Service with honor


How Europe Sees Itself

Possible failure mode for the Eurozone (Related)

McArdle re. HPV vaccination

Cowen re. the “NASA space pen” myth

Orin Kerr at VC pens a WSJ op-ed about pending CFAA amendments . . . and promptly discovers an “imitator.”  Not the first time I’ve seen this happen . . . .