How gratifying to see democracy work as well as it has during the SOPA debate. A cadre of lobbyists devise a plan to protect their interests inimical to both the people, and to the larger society; the people fight back; and with alarming alacrity, at a rate comparable to Republicans abandoning Mitt Romney, the lobbyists’ pet representatives jump ship. This is how it’s supposed to work!

For late-comers, the Stop Online Piracy Act is a bill introduced by the lovable Lamar Smith (R-TX), putatively drafted to end commercialized piracy of American intellectual property, especially by overseas actors (like China). This much of the goal is laudable, and drew presidential approval during Obama’s recent State of the Union Address. But SOPA’s mechanism obliterates the safe-harbor provided by the DCMA (the Act that allowed my old firm to successfully defend YouTube’s continued existence, against the assault of Viacom and other content providers), and contemplates a world where content providers may, by simply lodging a protest, see any site that hosts allegedly stolen content shut down without a hearing or chance of reply. Under extreme interpretations of the bill, as originally drafted, this site could be shuttered, in full, on the basis of a copyright complaint about any picture used here without permission. Like the above.

By this late hour, the threat appears at an end, with the Obama administration issuing a thinly-veiled veto threat. But in retrospect, I urge you to look at SOPA as part of a larger narrative, and one liberals (or progressives, if you prefer) blissfully appear to be making some headway. During the darkest depths of the Bush administration, more than a few commentators drew on Ben Franklin’s famous exhortation:

Any society that would give up a little liberty to gain a little security will deserve neither and lose both.

As a watchword for those worried about the nation’s slow slide into a police state. Freedom, the theory goes, involves risk, but it’s well worth the reward. A free society, which we declare ourselves to be, prefers to allow some chinks in our national security armor rather than to close them all at the price of our liberty of movement, conversation, and discussion.

SOPA presents an identical issue. We’ve come to value the internet as a place for free and unbridled conversation, which knits us closer together and enriches each individual’s cultural experience. The price of that liberty, though, is the continual risk of piracy, and the concomitant loss of profit that entails for content providers. By placing the burden of proof to establish piracy and shut down an offending site on content-owners, the Digital Millennium Copyright Act chose to deflect error towards freedom of expression, rather than airtight protection of intellectual property. SOPA proposed the reverse solution, and failed, to the benefit of all. It’s tempting to view individual skirmishes in the broader political landscape as isolated incidents, but to the extent the defeat of SOPA favors liberty over restraint, it inures to the benefit of the larger society.

Thankfully, President Obama will decline to exercise this authority for the duration of his tenure in the White House (pdf):

I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret [the NDAA] in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

President Obama’s signing statement lawfully construes the NDAA by building off of the closing subparts of § 1021, which follow:

(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities- Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

Essentially, President Obama reads subparts (d) and (e) to reduce the entirety of Section 1021 to a tautology: “the law is what the law is.” As commander-in-chief, that’s certainly his prerogative. But because executive authority to detain stems from congressional grant, subparts (d) and (e) arguably actually permit the executive to exercise whatever authority he believes to be lawful. I’m heartened that we can trust President Obama not to claim the maximum authority he’s been given, but equally certain that we cannot so readily expect the same restraint from those members of the loyal opposition currently vying for the seat behind the Resolute desk. If the unthinkable should happen, then, Mr. Obama has in Marian fashion forged a sword that he will not wield, but could, by another’s hand, slay the state all the same. Republicans have always opposed Boumediene v. Bush, the 2008 Supreme Court decision that forbade indefinite detention without trial for war on terror detainees, and required that any such individuals at least retain the right to petition for a writ of habeas corpus. It’s all too easy to imagine a President Romney, on day one, moving swiftly to undercut Boumediene and put the apparatus of detention fully in place. And now, with the NDAA’s enhancements, there’s no indication he’d even need Congress’ help.

If this is a fight that ultimately materializes, though, let’s keep in mind how many allies we actually have. For one, Justice Scalia, dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), has railed at length against the notion that American citizens may be subject to military process simply on suspicion of terrorism:

Justice O’Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10—11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process. [. . . .]

In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U.S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U.S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80—84 (2003); see also Cramer v. United States, 325 U.S. 1 (1945). [. . . .]

There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods.

Though not our normal practice, here I’ve preserved in-line citations to illustrate just how broad and deep the legal opposition to indefinite detention runs, and how easily even a Justice as conservative as Scalia may call it to mind. Absent a true, nationwide suspension of the writ of habeas corpus — which has happened only once in our entire history, and which Congress would never authorize — a six-member majority of the Supreme Court, at least, will not permit the full evils of the NDAA to ever be realized. And that is an encouraging thought.

A quick review. The Constitution confers on the President the right to appoint executive officers while the Congress stands adjourned:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

U.S. Const., Art. II, § 2, cl. 3. Although Congress stands recessed, Republicans leaders have managed to gavel the chamber to order at regular intervals during the recess, on the theory that each such pro forma session interrupts the recess, thereby preventing any appointments over the legislators’ winter vacation. John Elwood’s brilliant piece — which I strongly recommend — concludes that the Constitution’s framers cared more about true sessions than merely the fabricated appearance of sessions; that Congress remains recessed; and that, therefore, President Obama’s appointment is valid. Elwood hardly stands alone. Bush’s OLC adopted the same position, at least on the op-ed pages of The Washington Post. I expect that, on the merits, Republican legislators (or interest groups) would have a hard time arguing that the pro forma trick amounts to anything other than a slick constitutional run-around. Generally, the Constitution means what it says, and we shouldn’t lightly presume that the framers would’ve simply smiled and nodded at slick little acts of legerdemain like the pro forma session.

Let’s assume for the sake of argument, though, that President Obama has actually done something shocking — aside from standing up for himself, which actually does come as a surprise. Let’s say that any federal judge would agree with Republicans, and hold President Obama’s invalid as outside of the recess appointment power. Surprisingly, this may still not matter.

The reason is, not every right has a remedy; and more to the point, no individual citizen enjoys a “right” to see their government managed effectively. See generally Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007) (canvassing authorities). The only remedy to correct an unconstitutional appointment would likely be something like a writ of mandamus, but all such remaining writs incorporate the requirement that the Article III requirement that the petitioner possess “standing” — a discrete, particularized interest in the activity he would like to see performed. Marbury v. Madison, of course, famously involved a mandamus petition, but in that case the petitioner sought to have his appointment reinstated, not to have someone else’s rescinded. If no-one can claim a direct injury from Mr. Cordray’s appointment, no-one may challenge it.

Whatever exception exists may lie in the structure of the Dodd-Frank Act, which itself created the Consumer Financial Protection Bureau. According to other Volokh authors, some of the CFPB’s powers require a validly-appointed chief; if this bears out, Republicans could (theoretically) await some regulatory action from the CFPB that creates a discrete, particularized “injury,” and then sue to enjoin the action on the theory that, without a validly-appointed chief, any of the CFPB’s actions are ultra vires, since the prerequisites to the agency’s statutory authority have not been met.

Such activity may not be forthcoming, though, and by the time it is, most voters will have forgotten the afront. Separately, query whether Republicans actually want to dig in their heels on another issue favored by the 99% — responsible regulation of major financial actors — and give the President license to grandstand about both the wages of Republican obstructionism, and the need for common-sense custodianship of the American economy.

Odds are this is a fight Republicans simply lost. By changing up the play at the last minute, Obama rolled the hard six he needed, resulting in a quick, clean checkmate, and not a penalty flag in sight. And other such game metaphors.

Update: a Facebook friend directs me to Evans v. Stephens, 387 F. 3d 1220 (11th Cir. 2004) (html/pdf slip op.). There, the Court reached the merits of a Recess Appointment Challenge in the context of the recess appointment of an Article III judge. The Court discusses the jurisdictional question in note 1, where they appear to imply that recess appointment challenges, as applied to Article III judges, may be heard at the court’s discretion. Here, too, the suit was brought by litigants before the allegedly-unlawful appointee, who necessarily possess a discrete, particularized interest in the question of what authority (if any) their judge possesses. For these reasons, I don’t view Evans as necessarily foreclosing a standing argument in the non-Article III context. Note, too, that Evans‘ ultimate holding reads the appointment clause quite broadly.

Yesterday’s Times draws an even clearer example — New York City itself — and explains how the heavy-handed government planning that created Manhattan’s iconic grid enabled the city’s rise to preeminence as a global city, the heart of American culture and finance.

In fact, the story runs even deeper: Manhattan’s inexpensive public transit, the subway, is one of the greatest success stories of how eminent domain can be used to take a private creation, turn it back to the public good, and by doing so enable broader private development. The 1940′s squeeze-out by which New York City acquired the Interborough Rapid Transit Company and the Brooklyn-Manhattan Transit Company was justifiably controversial — and the Supreme Court’s eventual resolution of the fare-caps that made the acquisition feasible, tenuous at best — but produced a more affordable, interconnected, and user-friendly system, better capable of enabling urban growth and suburban life. (In fact, if you’ve transferred at Times Square between the 1/2/3 Seventh Avenue Line and the N/Q/R Broadway Line, or used the 7 Flushing Line, you’ve benefited directly from unified city control.) “Big government” creates the conditions for small business to prosper. Per Jed Bartlet (YouTube):

No matter what its failures in the past and in times to come for that matter, government can be a place where people come together and no-one gets left behind. An instrument of good.

This is in fact the foundational theory of government: that we do better together than we would apart. Somehow we’ve forgotten that lesson during our two-year long tea-induced stupor, but it’s time to remember it, and for Obama, to campaign on it. Unity and common purpose have always prevailed in America over selfishness, profit, and oligarchy. And that, fundamentally, is what the 2012 election should be about.

We all seem to agree that a judicial decision binds the immediate parties to the action: that, at least, is a start. Mr. Gingrich and his surrogates, though, contest whether the higher principles involved in a decision by the Supreme Court immediately become the law of the land, applicable to all similar disputes. Jacoby for Gingrich cites some support — Abraham Lincoln’s pronouncement, for example, that Dredd Scott was not the end of the debate on slavery. But Jacoby confuses an easy issue for a hard one. Lincoln’s point — that Supreme Court decisions may be overruled by subsequent case law, by amendment, or confined to their facts and distinguished by skillful attorneys — is entirely beyond dispute. We need not (and in many cases should not) take the Supreme Court’s word as gospel truth. This is the thesis of former Attorney General Edwin Meese, from whose intellectual flame Gingrich has drawn heat, but no light (pdf).

But while fighting bad law, we should obey the law as it currently exists. This tees up the harder issue: Jacoby seems to imply, falsely, that a principled executive should ignore a Supreme Court decisions setting out constitutional principles with which he disagrees, so long as the law has not been formally applied to his particular controversy. No.

Public officers possess an independent duty to safeguard the Constitution, but that power has its limits. Some examples make the case clear. An executive may constitutionally decline to enforce a criminal law that he believes to be unconstitutional. But the same executive may not continue to enforce a criminal law that has been specifically determined to be unconstitutional.

There exists a middle ground. Due to the the Court’s role as a “particularizer,” in the business of applying general principles to specific disputes, there will often be a lag time between the time when a general rule is enunciated, and when it is applied to a specific controversy. During that time, it is possible to avoid the law’s application, and fight it. Meese’s point (and Lincoln’s) is that a principled executive may take advantage of that time, and needn’t anticipate the Court’s mandate. Gingrich’s point appears to be a principled executive may ignore even a specific application of the law to the facts, Andrew Jackson style. Though consistent with the right’s general disrespect for the law, that is not the case.

It has been said that the Supreme Court’s mandate is the beginning of the conversation, not the end. This is quite so: based on Dred Scott and Plessy and even Roe, no observer of American history could conclude otherwise, or imagine that the Supreme Court’s mandate is ever final in the historical sense. But it is final as to the parties bound, and those who live under the law before it is changed. I cannot imagine that the American people would elect a President who pledged, openly, to invite constitutional crisis. Thankfully, it doesn’t seem like they will.

A few years back, Congressman Ron Paul (R-TX) filed his bill proposing a “Liberty Amendment” to the U.S. Constitution. Call it a presumptuous title for a mundane bill, for despite its nod to grander first principles, Paul’s amendment speaks to nothing so noble as what we generally mean when we invoke  “freedom” or “liberty” — such as the more stirring guarantees of self-determination, won at such great cost over the previous 200 years. The amendment neither provides a textual home for the assumed constitutional right of privacy, nor gives shape to its amorphous contours; nor does it propose some necessary limit to the executive’s wartime powers over American citizens, foreign or domestic; it doesn’t even speak to equal protection of the laws, or “rights” in any classical sense. In short, the Amendment skips right over the many, serious affronts to personal “liberty” posed by the problems of twenty-first century life, and fails to consider “freedom” in any recognizable sense.

No, nothing so important. What the “Liberty Amendment” does do is end the income tax.

So in Ron Paul’s hands, the greatest watchword of American democracy reduces to a buzzword for radical, Norquist-style libertarianism, “liberty” of the pocketbook, the “freedom” from filling out forms. If this strange act of legerdemain were blissfully confined to the periphery — to a candidate so thoroughly sidelined by his party that he can’t win a caucus by winning it — it would merit a laugh, and a sad shake of the head, but not a post. Instead, Paul’s gimmick represents the clearest iteration of a growing Republican trope, that the defense of economic liberty — from government interference in personal and corporate finance, or from paying that sum of money necessary for the maintenance of an advanced society — is the highest, and not the lowest, calling of the patriot.

This is not to say that freedom doesn’t contain a monetary component; it does. The ability to dispose of one’s assets as one sees fit, and for one’s own benefit, is an indispensable part of the bundle of rights that together comprise “freedom,” in the American sense. And economic compulsion at the hands of a tyrant is, tautologically, tyranny. As a people, we have always said so. But there is a vital difference between the extraction of wealth from a nation in service of an unelected foreign king, and the extraction of wealth that occurs pursuant to a law, duly enacted by a legislature serving in the peoples’ interest and at the peoples’ pleasure, to sustain a free society. The former is tyranny; the latter simply a fact of life in any civil society, for no civilization has ever defended and enabled the property rights of its citizens and not asked a price for the service. This distinction should be obvious from history: the founding generation didn’t fight taxes. They passed taxes. What they fought was taxation without representation.

The prepositional phrase isn’t an afterthought; it’s the entire issue. Similarly, human society and the American people have always signed off on measures that, while restricting the few, inure to the benefit of the many. To the extent that there has ever been any dispute on the issue, it was resolved long ago in the favor of the people over the oligarchs. No private citizen possesses a “liberty” or “freedom” interest in any  activity that enriches him at the expense of the larger society. To say so is not “socialism,” or a denial of basic American freedoms. It’s a bedrock principle of our constitutional system, tracing (at least) to Justice Holmes’ ultimately triumphant dissent in Lochner v. New York:

The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.

We may differ as to the amount of regulation, or the amount of taxation, needed to strike a fair balance between the rights of the few and the needs of the many. But the resolution of those debates in the favor of regulation does not implicate the “freedom” of the regulated, or the “liberty” of the taxed. Reasonable economic policy speaks the pocketbook, not the spirit. “Freedom” and “liberty” demand that the people have a say in how we as a society (“we the people,” to deploy a previously stirring phrase whose appeal the Tea Party has all but killed by overuse) regulate each others’ economic activity. They emphatically do not prevent the government from taking up the vital work of compelling all economic players to adhere to basic rules against sophisticated theft, nor do they prevent the peoples’ representatives from asking that we all contribute in kind to the very government that such makes economic activity possible.

This is to say, assuming a society defined by laws, neither freedom nor liberty are about what we possess. They’re about who we are. This is a distinction we must draw in the coming year.