Monthly Archives: November 2023

About 2,500 years ago, the Chinese military theorist Sun Tzu wisely observed that subduing the enemy without fighting was preferable to winning 100 victories in 100 battles. He was talking about deterrence, which is based upon perceptions of strength and will.

Virtually everyone who followed American actions during Operation Desert Storm in 1991 is aware of America's tremendous military strength. Taking on an army that was significantly larger than our own in terms of numbers, in 43 days we killed more than 20,000 Iraqi soldiers and destroyed more than 3,000 of their tanks, while losing fewer than 100 American soldiers in combat and zero M1 Abrams tanks to enemy fire. We fail to deter aggression today not because our enemies believe we lack strength, but because of their well justified perceptions that we now lack the will to resist armed aggression.

A major factor is that the United States Congress is both so partisan and so risk-adverse that it will not stand behind any President if a situation gets risky. Yet Congress insists on playing a central role in foreign affairs, even where no declaration of war is needed.

Four decades ago last month, the Congress insisted that President Reagan obtain formal authorization to continue participating in the international peacekeeping effortwhich involved troops from the United States, Great Britain, France, and Italyto provide a tranquil environment for feuding factions in Beirut to come together and seek to negotiate an end to hostilities.

Every country in the region and every faction involved initially favored the operation. But for largely partisan reasons, congressional Democrats (virtually none of whom criticized the mission on its merits), demanded the President submit a report under the (unconstitutional) 1973 War Powers Resolution and obtain formal congressional authorization to continue the mission. In the end, only two Democrats in the entire Senate voted to continue the deployment, and in the process, they signaled to Iran, Syria, and other regimes in the region that the Americans were short of breath and might easily be driven out. At dawn on October 23, 1983, a Mercedes truck filled with the equivalent of more than 12,000 pounds of TNT crashed through the gate of the Marine Corps barracks and detonated, killing 241 mostly sleeping Marines.

Since then, virtually every time an American President has wanted to oppose aggression or promote peace, members of the opposition party in Congress have sought to go on the record in opposition so that, if things go wrong, they will not be held accountable.

It was not always that way. Following World War II, the country was largely united. When mainland China started shelling and threatening to invade Taiwan in 1955, President Eisenhower asked and quickly received formal legislative approval to use force to defend Taiwan. Mao quickly backed down. Two years later, when Communist aggression threatened to set off a powder keg in the Middle East, Congress again stood behind the President, flexed its muscles, and the bad guys stood down.

Then there was the Cuban Missile Crisis, in October 1962, when a congressional joint resolution authorizing the use of force contributed to deterrence and led to the withdrawal of nuclear missiles based in Cuba.

Because of this long and consistent history of successful deterrence, when President Johnson went to Congress in August 1964 and sought another Authorization for the Use of Military Force (AUMF) , Congress immediately responded by enacting the Gulf of Tonkin Resolution authorizing war by a combined margin of 99.6%. And the two senators who voted nay were defeated in their next reelection bids.

Space does not permit a full discussion of what went wrong in Vietnam. One of the most important factors was the belief of LBJ and his Defense Secretary that we were so strong and North Vietnam so weak that we could prevail by hitting them softly. They forgot President Theodore Roosevelt wise counsel to never hit softly. Another problem was that LBJ did not want to mobilize the American people behind the war because he feared pressure to use nuclear weapons. So our government did very little to inform the American people about what was going on in Vietnam, while Hanoi and its Communist allies around the world launched a brilliant propaganda campaign that persuaded a good number of Americans that we were actually on the wrong side. Even the Pentagon Papers showed that the critics were factually wrong on most of their arguments, and the war in fact was fully justifiable.

In the half-century since the last American troops were evacuated from Vietnam, with the exception of Operation Desert Storm, America appears to have lost its will. When we gave up in Afghanistana policy favored both by President Biden and President TrumpMoscow realized that we had no will to defend other countries, and it invaded Ukraine.

Today, Iran and its proxies are seeking to destroy Israel. And if they become directly involved in that conflict, short of using nuclear weapons, my guess is if Israel survives at all, it will be at a horrific human cost.

For more than four decades, Iran has been launching armed attacks against the United States military, mostly through its proxies. In addition to the 241 Marines murdered on October 23, 1983, most of the thousands of American servicemen killed in Iraq and Afghanistan by IEDs were victims of Iranian intervention. And, even today, Iranian proxies continue to launch rockets and drones at American servicemen in the region. It should be obvious that using mercenaries or even foreign volunteers to commit aggression does not immunize the host actually providing the money and weapons and pulling the strings.

Even the 1973 War Powers Resolution, which I have argued in two separate books is blatantly unconstitutional, recognizes in Article 2(c)(3) the power of the President to commit U.S. armed forces into hostilities pursuant to an attack upon the United States . . . or its armed forces. Given the ongoing attacks by Iran and its proxies against U.S. armed forces over a period of more than four decades, President Biden does not need specific statutory authorization to defend our troops and act collectively pursuant to Article 51 of the UN charter to protect our Israeli friends from armed aggression.

When the Senate consented to the ratification of the UN Charter in 1945 by a 98% margin, it committed the United States to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. Article VI of the Constitution declares that treaties shall be part of the supreme Law of the Land, and Article II, section 3, obligates the President to take care that the Laws be faithfully executed. A 1945 proposed amendment to the UN Participation Act that would have required congressional authorization before the President could use military force in collective self-defense under the UN Charter received fewer than ten votes.

The goal of authorizing the use of military force would not be to go to war with Iran or its proxies. It would be to deter them from further aggression against Israel. And I know of no action that does not involve the use of major military force that would contribute more to that end than for Congress to unite behind the President and enact an AUMF that clearly authorizes him to use appropriate military force in the event of further aggression by Iran or any of its proxies against Israel.

If they fail to do that, and the situation in the Middle East continues to worsen, the American voters will have an opportunity next year to select new members of Congress who are willing to put the country above their political party and who have the courage to stand united against terrorism.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author.We welcome responses to the views presented here.To join the debate, please email us atinfo@fedsoc.org.

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The Case for an AUMF Against Iran and Its Proxies - The Federalist Society

One of the capstones of the Federalist Society National Lawyer's Convention is the Barbara K. Olson Memorial Lecture. The namesake of the lecture was a conservative lawyer and political commentator, and the wife of former Solicitor General Ted Olson. Barbara Olson was tragically murdered on 9/11 onboard American Airlines Flight 77, which was flown into the Pentagon. The first Olson lecture was delivered by Ted Olson in November 2001, barely two months after the horrific terrorist attacks. Later addresses were given by Judge Robert Bork, Justice Scalia, Chief Justice Roberts, Attorney General Mukasey, and many other leading jurists. I have attended every Olson lecture since 2008, and have witnessed many moving tributes to Barbara, and the important causes she believed in.

The Olson lecture at the 2023 Convention will always stand out in my memory. The speech was delivered by Bari Weiss of The Free Press. I'll admit, when I first saw her name on the schedule, I was a bit confused. Bari is not a lawyer, not a member of the Federalist Society, and not a conservative. Yet, my confusion quickly dissipated. Bari delivered a rousing, timely, and penetrating speech. Bari spoke to our current moment, including the conflict in Israel and attempts to destroy our own civilization. She formed a common kinship with those she disagrees withespecially a FedSoc crowd. And she connected with everyone in that room. At the end, the room was silent. You could hear a Madison lapel pin drop. When Bari concluded, the standing ovation lasted for nearly ninety seconds. (It was the longest one I could remember following an Olson lecture.)

Bari has posted the text of her remarks, titled "You Are the Last Line of Defense" on TheFree Press. If you haven't already subscribed you shouldI did.

Here is an excerpt, but I encourage you to reador better yer, listen tothe entire speech:

Over the past two decades, I saw this inverted worldview swallow all of the crucial sense-making institutions of American life. It started with the universities. Then it moved beyond the quad to cultural institutionsincluding some I knew well, likeThe New York Timesas well as every major museum, philanthropy, and media company. It's taken root at nearly every major corporation. It's inside our high schools and our elementary schools.

And it's come for the law itself. This is something that will not come as a surprise to the Federalist Society. When you see federal judges shouted down at Stanford, you are seeing this ideology. When you see people screaming outside of the homes of certain Supreme Court justicescausing them to need round-the-clock securityyou are seeing its logic.

The takeover of American institutions by this ideology is so comprehensive that it's now almost hard for many people to notice itbecause it is everywhere.

For Jews, there are obvious and glaring dangers in a worldview that measures fairness by equality of outcome rather than opportunity. If underrepresentation is the inevitable outcome of systemic bias, then overrepresentationand Jews are 2 percent of the American populationsuggests not talent or hard work, but unearned privilege. This conspiratorial conclusion is not that far removed from the hateful portrait of a small group of Jews divvying up the ill-gotten spoils of an exploited world.

But it is not only Jews who suffer from the suggestion that merit and excellence are dirty words. It is every single one of us. It is strivers of every race, ethnicity, and class. That is why Asian American success, for example, is suspicious. The percentages are off. The scores are too high. The starting point, as poor immigrants, is too low. From whom did you steal all that success?

The weeks since October 7 have been a mark to market moment. In other words, we can see how deeply these ideas run. We see that they are not just metaphors.

Decolonizationisn't just a turn of phrase or a new way to read novels. It is a sincerely held political view that serves as a predicate to violence.

If you want to understand how it could be that the editor of the Harvard Law Review could physically intimidate a Jewish student or how a public defender in Manhattan recently spent her evening tearing down posters of kidnapped children, it is becausethey believe it is just.

Their moral calculus is as crude as you can imagine: they see Israelis and Jews as powerful and successful and "colonizers," so they are bad; Hamas is weak and coded as people of color, so they are good. No, it doesn't matter that most Israelis are "people of color."

That baby? He is a colonizer first and a baby second. That woman raped to death? Shame it had to come to that, but she is a white oppressor.

Ted once said of Barbara that "Barbara was Barbara because America, unlike any place in the world, gave her the space, freedom, oxygen, encouragement, and inspiration to be whatever she wanted to be."

There is no place like this country. And there is no second America to run to if this one fails.

So let's get up. Get up and fight for our future. This is the fight ofand forour lives.

Read this article:

Bari Weiss's Olson Lecture: You Are the Last Line of Defense - Reason

Justice Clarence Thomas. Few public figures have endured the pressure, press, and public responsibility of this man. In the public eye, the Justice seems a paradox. Those who know the Justice well describe him as the one justice who knows everyone and recount stories of his friendship and compassion for people from all walks of life. In contrast, the Justices critics frequently disclaim him as the cruelest justice. For the average citizen, these conflicting signals can be confusing: How can one judge which characterization of Justice Thomas is true?

In his recent book, The Peoples Justice, Judge Amul Thapar offers readers an opportunity to engage with this question. The author presents evidence for readers to evaluate and conclude whether, in fact, the Justices approach to law favor[s] the rich over the poor, the strong over the weak, and corporations over consumers or delivers equal justice under law. In the introduction, Judge Thapar makes the case that Justice Thomass principled approach champions the Constitution and the people it protects. In other words, the author argues that the Justices approach furthers the public good, and more often than not, the good of the parties. This is true, the author asserts, even though the Justices commitment to apply the law equally to all will not necessarily result in the most sympathetic party prevailing.

The book is worth reading for its strong case in defense of one of the great figures of our time. Additionally, all readers will be edified by the authors legal insights, succinct summaries of key legal doctrines, and his skillful and subtle articulation of the judicial process itself.

The Peoples Justice focuses on twelve specific constitutional stories. For each, the storyteller, himself a revered judge, follows the classic pattern of the judicial process. Each of the books twelve constitutional stories begins by explaining the events and legal questions that led to the issuethe controversy ultimately presented to the court. Each story also includes a brief outline of the applicable rulethe legal doctrines and principles according to which the controversies must be decided. The stories then proceed to Justice Thomas understanding of the applicable rule and the issue and facts before the courtthe application. After completing this principled analysis, each story concludes with the holdingthe cases outcome.

The majority of the book is dedicated to these stories. The book is often a page-turner because the authors holistic approach to each story so effectively compels the reader, introducing the characters and recounting their challenges, joys, and pain. Readers are drawn in to the story of a single mother, struggling to defend her home against a commercial use of the eminent domain doctrine. The case powerfully demonstrates the life-changing impact of what might seem initially a dry property-law concept. The reader is alternately saddened and angered by the story of an ambitious young female performer, attempting to vindicate her rights after being harassed and assaulted by a powerful man early in her career. The dramatic tension of a case in which principles of free speech are invoked to defend the production of violent video games leaves the reader with a racing heart and a better appreciation of the high stakes courts face when navigating public safety and democratic principles. By entering into these stories, the reader comes to appreciate how a justices responsibilities transcend common political camps and rhetoric. The stories demonstrate how, particularly in todays culture, such responsibility requires heroic virtue, principles, and firm commitment to the rule of law.

After recounting these stories, the author closes the argument by inviting the reader to conclude that the evidence demonstrates that Justice Thomas is a prudent judge, faithful to principles and wise in their application. The author challenges the reader to transcend the popular, oversimplified views of the Justice and consider a more nuanced view: that a Justice can be both faithful to principle and compassionate and sensitive to those in need.

Skeptics of the Justice may find themselves skeptical of the arguments made and the conclusion. However, even skeptics will benefit from the stories presented because of their clear legal analysis and illustrations of the complexities of cases presented to the Supreme Court. Even skeptics will be compelled to acknowledge that, although Justice Thomas is unfailingly committed to the rule of law, he is also always aware of a cases human impact.

One would expect a work by a revered judge about a Justice to not only make an effective argument but to do so with a special brilliance. This work does not disappoint. In addition to the compelling storytelling in the book, the work is also rich with legal instruction, articulations of the judicial process, and a focus on the virtues needed for right judgment.

One of the most delightful aspects of the book is the authors deft explanations of the legal doctrines key to the Justices judicial philosophy. With the skill of an artist, the author explains, succinctly and in plain English, some of the most complex concepts and principles of our legal system. These principles include originalism, incorporation, and the Takings Clause.

Perhaps only a reader who has spent time in the trenches of legal research can fully appreciate the authors accomplishment here. The author leads his readers, whether lay or legal, through these complex concepts so smoothly that the reader does not even notice the intellectual hurdles he or she has just cleared. With these clear explanations, the reader is equipped to engage with these concepts and choose his or her own informed perspective.

Additionally, throughout the book, the author recognizes and explains the virtues essential to the role of the judge and the Justices practice of these virtues. Courage figures prominently among them. Judge Thapar notes that the world often views case law in terms of its outcomes, rather than the integrity of the legal analysis. Despite this pressure, the Justice focuses on right application of the law, rather than pleasing any factions within the public. Because he applies principles without reference to a particular agenda, public disapproval is constant for the Justice. Likewise, prudence must be practiced to a heroic degree. The constitutional stories clearly illustrate the gravity of each case and the need to apply the right principles to the facts before the Court.

The Peoples Justice both edifies and engages its readers and provides needed evidence in defense of a public figure who is too often the target of conclusory allegations, whether favorable or critical. The books union of legal analysis and compelling storytelling make the work an interesting and worthwhile read for all audiences, whether legal professionals, law students, or engaged citizens. Ultimately, through The Peoples Justice, a reader can, in a sense, accompany Justice Thomas as he seeks to carry out his responsibility as a steward of equal justice under law and, by doing so, better equip him or herself to take up his or her share of this responsibility and practice the courage to assert [the truth] . . . and stand firm in the face of the constant winds of protest and criticism.

The views stated are the authors alone.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author.We welcome responses to the views presented here.To join the debate, please email us atinfo@fedsoc.org.

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Book Review: The People's Justice - The Federalist Society

The Mayflower Hotel in Washington, D.C. opened in 1925. It is iconic. Presidents and world leaders have stayed there. It hosted many inaugural balls. And for the past four decades, the Mayflower has been the home of the Federalist Society National Lawyers Convention. Attending the annual meeting at the Mayflower is like a pilgrimage for conservative lawyers. I've attended every convention since I was a 1L in 2006. I still remember with awe my first visit. I walked through the gilded doors, across the marble lobby, into the bustling hallway, and sat down in the grand ballroom. I was awe-struck by the classic decor in the room, and even more impressed by the luminaries sitting in our midst.

In November 2009, shortly after I launched my blog, I live-blogged the Convention. I wrote up summaries of sessions, posted short clips of the programming to YouTube, and tweeted highlights. (You can see the entries here.) At the time, FedSoc did not have any social media team, and none of the sessions were live-streamed. For those who like a throwback, here is a clip from 2009, which captures my youthful humor, and the Mayflower's grandeur:

But perhaps the most significant moment of the 2009 Convention occurred in the grand hallway. I described it in my 2009 book,Unprecedented: The Constitutional Challenge to Obamacare:

The convention draws prominent academics, politicians, and judges from across the ideological spectrum to discuss and debate the key legal issues of the day. As is often the case at such conventions, some panels are more interesting than others. During lulls, attendants frequently recess to the grand hallway in the Mayflower to catch up with old friends, argue about the most recent Supreme Court case, or brainstorm and strategize. November 12, 2009, was just such a day. At 10:15 AM, a panel began on "Bailouts and Government as Insurer of Last Resort." Though certainly an interesting topic, a number of already-fatigued Federalists made their way out into the cavernous hallway. I joined them. Todd Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundationthe same Heritage Foundation that had first advanced the individual mandate two decades earlierwas talking about the pending health care bill along with Nelson Lund, my former professor at George Mason University School of Law; Andrew Grossman, a former classmate; and a few others. At this point the law still had not cleared the Senate, but conservatives were already getting worried. Gaziano, brainstorming ways to challenge the law, asked the group if there were any possible constitutional infirmities in the law. I chimed in that all mandates in the past had been imposed by the statessuch as automobile insurancerather than the federal government. . . .

Gaziano said that he wanted to write a report for Congress that would give constitutional arguments as to why the law was invalid. He approached me and said something to the effect of, "Josh, I would love for a young and bright lawyer such as yourself to help write this report with me." I knew what that flattery meant in D.C.-speak: prominent lawyers frequently ask young lawyers to ghostwrite articles for them. In truth, I was not opposed to that ideaand in fact I had done it beforebut I recognized that for someone who was clerking, writing a white paper about a pending piece of litigation that would soon be litigated in the federal courts was inappropriate. I respectfully declined. A few moments later, Georgetown University Law Center professor Randy Barnett joined the conversation.

At a Federalist Society convention, Barnett is a rock star. He had just finished a debate. Tall and lean, with a piercing glance and sly grin, Barnett radiates confidence and warmth. Making his way through a throng of admirers, he always takes time to talk to inquisitive students. In addition to writing some of the most influential books and articles on originalism, constitutional theory, and the structures of liberty, Barnett had argued Gonzales v. Raich before the Supreme Court in 2005. That case, which Barnett lost, held that Congress had the power to regulate marijuana that never leaves a farm. More importantly, Barnett was a leading expert on the scope of federal power and constitutional law. In hindsight, Barnett's entry into our conversation was providential. Gaziano later told me that he was "looking for someone with real knowledge in the area," someone who had "gravitas," to help make the case against Obamacare. Barnett was perhaps the ideal candidate. This conversation, though it started out innocently enough, would change the fate of constitutional law. Gaziano asked Barnett, "Hey, Randy, do you have any thoughts about the constitutionality of the health care law?" Randy replied, "You know, I really haven't give it much thought."

Gaziano, tenacious as ever, kept at it and asked if Barnett wanted to write a report and "do something about the law." Barnett agreed, but said, "You will have to get someone to do the first draft." Gaziano coaxed Barnett further. "Stop by my office this week. We can talk more about this case. And I have a young associate who can help write this." Reading between the lines, I got the impression that Heritage would write the report and Barnett would put his imprimatur on it. Intrigued, Barnett flashed his trademark smirk and agreed.

All of this began in the halls of the Mayflower. FedSoc is often described as this top-down organization that dictates our legal culture. To the contrary, the most important facet of FedSoc is the natural interactions that organically arise in the hallways.

The Mayflower has countless other memories. One year, I moved my chair near an electric outlet in the State Room so I could charge my laptop. Justice Scalia walked into the room to promote his new book with Brian Garner. And before I had a chance to unplug my computer, Justice Scalia tripped on the cable. In a moment, I saw my life flash before my eyes. I thought I would be excommunicated from the Society, and banished from the legal profession. Thankfully, Scalia caught his footing, muttered something under his breath, and walked to the stage. Another year, a friend had recorded Justice Alito's remarks at a dinner that did not permit recordings. Foolishly, I linked to the video on my blog. In the halls of the Mayflower, I was promptly told to call chambers, and was asked to remove the video. I tried to explain that I could delete the link on my blog, but couldn't take down someone else's video. No excuses. Thankfully, I was able to track down my friend, and all was well. This year, I publicly challenged Will Baude and Michael McConnell to a debate on Section 3! Oh, the Mayflower memoriesmostly of me making mischief.

Alas, the fortieth National Lawyers Convention may be the final gathering at the Mayflower. So I've been told, starting next year, our shindig will (likely) move about a mile up Connecticut Avenue to the Washington Hilton. I think everyone would agree that the Hilton lacks the charm of the Mayflower. The walls and floors are sterile. It looks like a hospital. But more importantly, the Hilton lacks the memories. The Hilton also has really bad vibes. In March 1981, John Hinckley, Jr. shot President Reagan and James Brady outside the Washington Hilton. The hotel subsequently built a drive-through canopy structure allowing the President to exit safely from his limo within its shelter. The Barnett/Blackman casebook includes a photo of the assassination and hotel, right before an excerpt from Printz v. United States, which declared unconstitutional provisions of the Brady Act. (On a personal note, I also have Marriot Bonvoy Lifetime Platinum, so I lack status at the Hilton.)

Why, then, is the Convention moving? This industrial hotel is much larger than the classy Mayflower. More people can attend panels, more rooms can be blocked off, and the ballroom can fit five-hundred more attendees for the Scalia dinner. Indeed, the banquet this year was moved from Union Station to the Hilton's ballroom.

If this is indeed the last convention at the Mayflower, I will miss it dearly. Of course I can stay at the Mayflowerit's not going anywhere. Well, I am inclined not to, since they have cut many amenities, including the concierge lounge. (I was told it will never reopen due to "business reasons.") But without FedSoc, the Mayflower will not be the same.

As a coda to the video I recorded back in 2009, here is me signing off in 2023 (with much longer hair and a noteworthy photobomber):

And a walk through the Grand Hallway, one more time.

Link:

Farewell to the Mayflower - Reason