Point of Order

           From Election Law Blog, news that Marty Lederman is leaving OLC to return to teaching at Georgetown   Hmmm.

           State officials in West Virginia disagree as to when state law permits or requires a special election to fill a vacancy in the office of U.S. Senator.  The Secretary of State believes that current law requires the election to be held in November 2012, while the Attorney General believes that the law permits, if not requires, the election to be held in November 2010.   

            In light of this disagreement, the Governor has proposed legislation that would “clarify” state law with regard to vacancies.  Specifically, with respect to Senate vacancies, the proposed legislation would require the Governor to proclaim a special election whenever the unexpired term equals or exceeds two years and six months.  If the vacancy occurs one hundred and twenty days or more before the next general election, the Governor would be required to set the special election on the general election date.  If the vacancy occurs less than one hundred and twenty days before the special election, the Governor can set any special election date, as long as it is not within sixty days, and no more than one year from, the occurrence of the vacancy.  In addition, the Governor is required to set a special primary election, which may not be within sixty days of the special election. 

            In the meantime, the Governor has named a temporary appointee for the vacant office.  (Although I have not seen the formal certificate of appointment, the Governor presumably has executed or will execute such a certificate by next week, when the appointee’s credentials are apparently to be presented to the Senate). 

            These machinations raise a couple of interesting questions.  First, can the Governor properly appoint a temporary Senator before issuing a writ of election setting the date of the special election?  The language of the Seventeenth Amendment arguably implies that the writ of election comes first, a reading suggested by the following language from the Seventh Circuit’s discussion of the Obama vacancy in Illinois: “The principal clause [of the Seventeenth Amendment] describes a chain of events: when a vacancy happens, the state executive issues a writ of election, which calls for an election in which the people will fill the vacancy. The proviso qualifies this chain of events by permitting an appointee to intercede temporarily between the start of the vacancy and the election that permanently fills that vacancy.” 

            Second, if the Governor makes an appointment in accordance with state law, can the legislature subsequently change the date on which the special election is to occur?  Extremely alert readers will recall that this issue arose in connection with the Obama vacancy.  After Governor Blajojevich appointed Roland Burris to fill the vacancy, the Illinois legislature discussed changing the law to require a special election to be held earlier than the date provided by existing law.  Burris argued that such a change would be unconstitutional and threatened to fight it in court.  As I discussed at the time, a post-appointment change in the election date may be unprecedented and presents serious constitutional issues.

            If the West Virginia legislature were to adopt the law proposed by the Governor, the Governor would be required to set a special primary election at the very beginning of September, and the special election would be held on the general election date in November.  This is on the assumption that the Byrd vacancy occurred on June 28 (the date of his death), which would be more than one hundred and twenty days before the general election (127 by my count).  Of course, it is arguable that this result is the same as was required under pre-existing law, in which case the second constitutional issue would not arise.

           The West Virginia Attorney General has issued this opinion rejecting the Secretary of State’s legal conclusion that a special election to fill the Byrd vacancy cannot be held until November 2012.  The Attorney General’s reasoning is essentially the same as what I suggested in these prior posts (see here and here), namely that the West Virginia legislature’s evident intent to require a special election when to fill a vacancy with an unexpired term of more than two years and six months, combined with the Seventeenth Amendment’s purpose of ensuring popular election of Senators, requires reading the ambiguous provisions of West Virginia law so as to allow the calling of a special election as soon as possible.  The Attorney General also distinguishes the Robb v. Caperton case on the grounds that it dealt solely with state judicial offices.

           The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services.  The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday. 

            Berwick was nominated for the position in April, but the Senate Finance Committee has yet to schedule a hearing on the nomination.  The recess appointment was denounced not only by Senate Republicans, but by Committee Chair Max Baucus (D-Mont.), who stated: "Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered." 

            The Recess Appointments Clause (U.S. Const., art. II, sect. 2, cl. 3) provides: "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."  This provision raises two basic interpretative issues: (1) what constitutes “the recess” of the Senate referred to in the clause? and (2) what does it mean for a vacancy to “happen during” such a recess? 

            A number of legal scholars have argued that “the recess” referred to in the clause is the recess between sessions of Congress, which normally occurs only once a year.  The intrasession periods of adjournment are not recesses within the meaning of the clause, they argue, and the President has no constitutional power to recess appoint anyone during those periods.  In addition, some scholars argue that a recess appointment can only be made if the vacancy has arisen during that recess.  A vacancy that has occurred earlier did not “happen during” that recess, and therefore is not eligible for a recess appointment.  Professor Michael Rappaport laid out these two arguments in his article, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).   

            If either of these arguments is correct, President Obama’s appointment of Berwick is unconstitutional.  I will leave consideration of the merits of these arguments for another day.  For present purposes, I would just note that one of the foremost academic supporters of the Rappaport position is Marty Lederman, formerly a law professor at the Georgetown University Law Center.  Lederman was outspoken in criticizing President Bush’s recess appointments on the grounds that they violated the Recess Appointments Clause as properly interpreted.  Lederman, for example, was on the legal team that filed a brief (on behalf of the late Senator Edward Kennedy) challenging the constitutionality of Bush’s recess appointment of Judge William Pryor to the Eleventh Circuit Court of Appeals. 

            In addition, Lederman criticized Bush’s recess appointments on the grounds that, regardless of whether they complied literally with the Clause, they constituted abuses of the recess appointment power because they were designed for no purpose other than to circumvent the Senate’s advice and consent function.  For example, Lederman argued that recess appointments made during an eleven and a half day Senate adjournment were  obviously not for the purposes intended by the Clause, namely to deal with emergencies where the Senate was unavailable to provide its consent.  Instead, he contended that such appointments “make a mockery of the procedure contemplated in the Appointments Clause” and represented “constitutional cynicism of the highest order.” 

            Lederman now serves as Deputy Assistant Attorney General for the Office of Legal Counsel.  Which naturally raises the question—has he advised Obama that Donald Berwick is unconstitutional?

            The Governor of West Virginia, apparently not entirely satisfied with the Secretary of State’s determination that the Byrd vacancy cannot be filled by a special election until November 2012, has asked the Attorney General to opine on the question of when such an election is to take place.  The Governor’s letter notes that “[t]he issue of when such an election may lawfully occur raises questions of law that, when examined by persons of sound legal training and experience, may be answered in a way that reasonably calls into question the constitutionality or legislative intent of the law.” 

            I am not sure exactly what that means, but I interpret it as saying that the Secretary of State’s legal determination, while not unreasonable, is arguably in conflict with the intent of the West Virginia legislature, as well as with the requirements of the U.S. and West Virginia Constitutions.  If that is what he means, I agree with the Governor.

           The West Virginia Secretary of State has taken the position that the special election to replace Senator Byrd will not occur until November 2012.  She relies on Robb v. Caperton, a 1994 West Virginia Supreme Court case which applied the same vacancy statute in the context of a judicial vacancy. 

            Robb does provide support for the Secretary’s statutory interpretation, but there are questions whether the court’s reasoning should be extended to the current situation.  In Robb, a circuit judge resigned on April 20, 1994, leaving an unexpired term that would last until December 31, 2000.  The question was whether the vacancy should be filled by election in November 1994 or in November 1996.   

            The court began its analysis with the West Virginia Constitution.  It found the general vacancy provision of Section 7, Article IV, which was “keyed to ‘the next general election,’” inapplicable to judicial vacancies because the latter were governed by the more specific and detailed provision of Section 7, Article VIII.  Under Article VIII, the Governor is directed to fill a judicial vacancy without any election if the unexpired term is less than two years or, if so provided by law, no more than three years.  For vacancies of more than three years, the Governor is directed to issue a directive of election to fill the vacancy “in the manner prescribed by law,” and, in the meantime, to fill the vacancy by appointment. 

            The court found the phrase “in the manner prescribed by law” critical to the analysis of when an election to fill a judicial vacancy should take place.  The court held that “[i]t is clear under W.Va. Code, 3-10-3, the governor has the ability to fill a vacancy in the office of a supreme court justice or a circuit judge until a successor has ‘timely filed a certificate of candidacy, [and] has been nominated at the primary next following such timely filing[.]’”  Since the date for filing a certificate of candidacy had passed in early February, the court concluded that the election to fill the vacancy could not be held until November 1996. 

            The statutory language construed by the court is the same language that applies to filling vacancies for other offices, including that of U.S. Senator.   Given that the court thought this language was “too plain” to be interpreted as requiring an election in November 1994, the Secretary would seem to be on solid ground in reaching a similar conclusion with regard to the Byrd vacancy.  Nevertheless, the Robb court’s conclusion was fundamentally premised on the language of Section 7, Article VIII of the West Virginia Constitution, which applies only to judicial vacancies.  Moreover, the court appeared to assume that vacancies in non-judicial offices were required to be filled, under the provisions of Section 7, Article IV, at the next general election, notwithstanding the fact that such offices were governed by the same statutory language.  It is therefore uncertain whether the reasoning of the Robb case should apply here. 

            If the statutory language is construed as the Secretary of State suggests, the results are perplexing, if not absurd.  It is hard to see why the legislature would have chosen a two year and six month cutoff for holding elections, if the intent had not been to have a special election to fill the last two years of the term in question.  When asked about this at her press conference, the Secretary of State was unable to offer an explanation of a legislative policy that might be advanced by this result.    

            Finally, the Secretary of State’s interpretation of the statute is, at best, in considerable tension with the fundamental policy of the Seventeenth Amendment, namely that Senators be elected by the people.  There would seem to be ample grounds for mounting a legal challenge.   

            As mentioned in my last post, I think that the Governor of West Virginia is likely obligated to call a special election to fill the vacancy caused by Senator Byrd’s death.  But when is such an election to take place?  The West Virginia statute does not directly address when the special election is to take place.  Instead, it states that for certain offices, including U.S. Senator, a temporary appointment “shall be until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.” 

            It is apparently inferred from this language that the special election is to take place on the date of a general election.  This, at least, seems to be the position of the West Virginia Secretary of State, whose website states that in the event of a Senate vacancy: “[T]he Governor appoints someone to serve until the unexpired term is filled at the conclusion of the next candidate filing period, Primary Election, General Election and certification.  The winner of that General Election fills the balance of the unexpired term.” 

            It is not exactly clear what this means in the current context.  In West Virginia, the deadline for filing to compete in this year’s congressional primary was January 30, and the congressional primaries were held on May 11.  It may be argued, therefore, that it is too late for anyone to run for the vacant Senate seat in this year’s general election.  Under this interpretation, the special election would not be held until November 2012, in which case the winner would serve only the remaining two months of Byrd’s term. 

            On the other hand, it is hard to see how this interpretation could be squared with any sensible legislative policy.  Presumably the reason why the West Virginia legislature provided for special elections only when a vacancy occurs more than two years and six months before the end of a term is that it did not believe it worthwhile to hold a special election to fill shorter periods of time.  So either the legislature believed that a special election could be held at some time other than the general election date, or it believed that the special election could be held on the next general election date (so that there would be more than two years left in the Senate term).  Interpreting the statute to make it impossible to hold a Senate special election until the November two months before the original term expires seems inconsistent with the legislative intent. 

            To make matters more confusing, the Secretary of State’s website also contains the following: “Vacancies in the offices of Secretary of State, State Treasurer, State Auditor, Attorney General, and Commissioner of Agriculture are filled by appointment until the next election that is more than two years and six months following the vacancy.”  Vacancies in these offices are covered by the exact same language as governs Senate vacancies, so it hard to see how these offices could be treated differently than a Senate seat.  It is also hard to see how the Secretary’s statement can be squared either with the statutory language or with the principle, also stated on the website, that “[t]he West Virginia State Constitution provides a clear mandate that all elective state and local offices should be filled by the voters as soon as possible after a vacancy occurs.” 

            In any event, if the Governor and/or Secretary of State refuse to hold a special election for Byrd’s seat prior to November 2012, it seems very likely that there will be a legal challenge.  West Virginia voters may plausibly contend that state law requires a special election to be held this November, or if not then as soon as possible.  They may also raise the federal constitutional issue not decided in the Illinois case, ie., whether an unreasonable delay in holding a special election to fill a Senate vacancy violates the language and purpose of the Seventeenth Amendment.

           Senator Robert Byrd (D-W.Va.), the longest serving Member of Congress in U.S. history, passed away today.  R.I.P. 

            The vacancy created by Byrd’s death will be filled by the Governor under § 3-10-3 of the West Virginia Code.  This statute provides that if the unexpired term of certain vacant offices, including that of U.S. Senator, is less than two years and six months, the appointment will be for the remainder of the unexpired term.  It should be noted that this provision raises some serious constitutional questions under the Seventeenth Amendment, particularly in light of the Seventh Circuit’s recent decision regarding the Senate vacancy in Illinois.  According to the court, the Seventeenth Amendment requires that “every time that a vacancy happens in the state’s senate delegation, the state must hold an election in which the people elect a permanent replacement to fill the vacant seat [and] the executive officer of the state must issue a writ of election that includes a date for such an election to take place.”  Under West Virginia law, however, neither of these requirements will be met whenever the vacancy occurs less than two years and six months prior to the end of the original term. 

            This issue may not directly arise in the present situation.  As of today, there are two years, six months and five days of Byrd’s unexpired term remaining.  Thus, it would seem that under West Virginia law a special election is required. 

            It is possible, however, that the Governor could take a contrary position.  First, the Governor might take the position that the vacancy does not “occur” until he receives formal notice from the Senate.  Were the Senate to fail to give notice of the vacancy this week, the Governor might argue that the unexpired term is less than that required to trigger a special election.  Second, the Governor might argue that the vacancy continues to occur so long as the office remains vacant, so that the length of the unexpired term is measured by whenever the temporary appointment is made.  Third, (closely related to but somewhat stronger than the second), the Governor could argue that the “unexpired term” referred to in the statute is measured by the temporary appointment, not by the vacancy.  Under either the second or third points, no special election would be required if the Governor fails to fill the vacancy until after July 3 (this Saturday). 

            I don’t know what West Virginia law may say about these points, but there are two good reasons for regarding them with skepticism.  First, it seems unlikely that the legislature intended to leave it up to the Governor’s discretion when the clock starts on the unexpired term.  (It is more likely that the legislature would have started the clock upon official notice from the Senate, but in that case one would expect that it would have said so explicitly).  This is particularly so since the legislature did not require the Governor to fill the vacancy within a specific period of time, raising the possibility that the Governor could wait weeks or even months to fill a vacancy in order to avoid a special election. 

            Second, and more importantly, any interpretation that prevents a special election from occurring at all would raise the serious constitutional questions previously mentioned.  Such an interpretation would fly in the face of “the Seventeenth Amendment’s primary objective of guaranteeing that senators are selected by the people of the states in popular elections,” as the Seventh Circuit put it.  Thus, the doctrine of constitutional avoidance strongly counsels in favor of an interpretation allowing a special election to take place. 

            For these reasons I conclude that a special election to fill Byrd’s seat is likely required.  I will turn to the question of when such a special election should occur in another post.

            Nora and Seth Tillman have published this fragment on the constitutional meaning of  “shall” and “may.”   They contend that in 18^th Century America the word “shall” was used more often in a non-obligatory sense, ie, to indicate futurity as we would use the word “will,” than it would be today.  This may be important in construing certain constitutional provisions where the use of “shall” is arguably non-mandatory.   

For example, the Appointments Clause provides that the President “shall” nominate and appoint Ambassadors, Ministers and Consuls, Supreme Court Justices, and all other officers of the United States.  The word “shall” in this sentence could be  mandatory (must), directory (should) or permissive (may).  The Tillmans argue that we should not be too quick to assume that the word was used in the mandatory sense, as 18^th century usage would be more consistent than current usage with the directory or permissive senses (though it seems to me unlikely that the framers would have used “shall” rather than “may” had they intended the Clause to be permissive).

           An interesting Seventh Circuit opinion earlier this month considers the constitutionality of Illinois’s procedure for filling the Senate seat vacated by Barack Obama after his presidential election.  (hat tip, Election Law Blog).  Among other things, the court confirms my view that the term of Senator Burris (who was appointed by then-Governor Blagojevich as a temporary replacement pursuant to the Seventeenth Amendment) must end at the next general election in November 2010, not in January 2011 as claimed by Illinois Attorney General Lisa Madigan.  More importantly, the court indicates that Illinois is violating both the Constitution and state law by failing to schedule a special election to fill the Obama vacancy.

          Today Roll Call Columnist Simon Davidson discusses the risks that a private party faces in turning over information to the Office of Congressional Ethics.  He mentions my post last week questioning whether OCE has the authority to refer evidence to the Justice Department as it did with regard to the PMA investigation.   

            Roll Call has also editorialized about this issue, noting that OCE’s decision to turn over evidence to the Justice Department could chill cooperation by future witnesses needed in its investigations.  The editorial warns that this action could play into the hands of “OCE’s enemies,” who are looking for reasons to eliminate the office.

           In preparation for the confirmation hearings for Supreme Court nominee Elena Kagan, the Senate Judiciary Committee has requested that the National Archivist produce records of Kagan’s service in the Clinton White House, where she served first as Associate White House Counsel and then as Deputy Assistant to the President for Domestic Policy.   It appears that the documents related to her domestic policy position have been largely, if not entirely, released, but those relating to her service as counsel are still being reviewed. 

These records are subject to the Presidential Records Act, 44 U.S.C. § 2201, et seq., which provides that the records of an outgoing administration belong to the public and are to be transferred to the National Archives for preservation and processing.  After a specified period (up to 12 years depending on the type of record), the public may seek access to these records under the Freedom of Information Act. 

            Congressional committees are not subject to either the PRA’s time restrictions or to FOIA’s limitations on public access.  Nevertheless, the PRA recognizes that congressional requests for presidential records may be subject to claims of privilege.  44 U.S.C. § 2205(2). 

            In 2001, President Bush issued an executive order on presidential records which was widely criticized for, among other things, broadly interpreting the rights of both the incumbent and former President to prevent the disclosure of presidential records to Congress.  Bush’s order (1) allowed the former President a 21-day period to review records requested by a congressional committee and decide whether to assert a privilege, (2) gave the incumbent President a sequential 21-day period to make his own decision with regard to privilege, (3) permitted either to extend these periods indefinitely for “burdensome” requests, and (4) prohibited the National Archivist from disclosing the records unless both the former and incumbent Presidents agreed to do so. 

            President Obama, in one of his first official actions, revoked the Bush executive order and replaced it with a new executive order on presidential records.  The Obama order more closely tracks the National Archives regulations than did the Bush order.  Under the revised procedure, the Archivist is responsible for initially determining if records will be disclosed, whether in response to a congressional request or otherwise; the Archivist then provides the former and incumbent Presidents with a notice period (normally 30 days) during which either may invoke executive privilege.  However, the Archivist is only bound to follow the privilege decision of the current President; he may choose, unless otherwise instructed by the current President or his designee, not to honor a privilege invocation by the former President.  He must, however, provide the former President notice of this decision, thereby permitting the former President to seek judicial relief. 

            White House Counsel Bob Bauer has informed Senator Jeff Sessions, Ranking Member on Senate Judiciary, that “President Obama does not intend to assert executive privilege over any of the documents requested by the Committee.”  However, Bauer notes that the documents are being reviewed by a representative of President Clinton, and he leaves open the possibility that Clinton may assert a privilege with respect to some of the documents.  In that event, Bauer states that the administration would first try to reach a “mutually satisfactory accommodation” with the Committee and Clinton.  He doesn’t say what would happen if an accommodation cannot be reached, but, under the regulations and executive order, the Obama administration could decide to accept or reject Clinton’s claim, or it could leave the decision up to the Archivist. 

            If Clinton decides to invoke executive privilege for documents related to Kagan’s service as White House counsel, it will likely raise a number of unsettled issues.  Bush’s executive order, for example, claimed that executive privilege covers “legal advice or legal work,” but many in Congress hotly disputed this claim, arguing that common-law privileges such as attorney-client privilege are not part of the constitutionally-based executive privilege.  Moreover, as a former President, Clinton’s ability to claim privilege is subject to further uncertainty as the executive privilege tends to erode over time.

           On May 27, 2010, the Office of Congressional Ethics (OCE) announced that its Board had voted unanimously to refer to the Justice Department “certain evidence collected in the course of its investigation concerning appropriations earmarks and the now defunct PMA lobbying firm.”   The announcement contends the referral to the Justice Department was authorized “pursuant to Section 1(f)(B) of House Resolution 895 of the 110^th Congress and Rule 13 of the OCE Rules for the Conduct of Investigations.”   However, for the reasons described below, I think the Board exceeded its authority in making this referral. 

            The Canadians seem to be having their own version of the Karl Rove/Harriet Miers/Josh Bolten controversy that arose in during the Bush administration (when these White House officials asserted immunity from having to appear before congressional committees).  The Canadian government has declared only cabinet ministers, not their political staffs, can be called as witnesses before parliamentary committees. 

            Generally speaking, I presume the Canadian Parliament has the same inherent powers to call for testimony and records as does the Congress.  According to the Canadian House of Commons Procedure and Practice Manual, standing committees have the power to issue a summons for any person located on Canadian soil, with certain recognized exceptions.  These include the Queen (no surprise), the Governor General and provincial lieutenant-governors (who I think are the Queen’s representatives) and members of either Canadian provincial or federal legislative bodies. 

            Since parliamentary committees are not permitted to summon Members of Parliament (at least not without the specific authority of the House), it would seem that they cannot not compel the appearance of the prime minister or a cabinet minister (who are Members of Parliament).  In this case, however, the government is arguing that the committee must call the minister, rather than his or her political subordinates.   The basis of the argument, which I don’t fully understand, has something to do with the concept of “ministerial responsibility,” a system in which it is only the ministers (and not their subordinates) who are considered responsible to both the Parliament and the Canadian people.  A government spokesman distinguishes this system from that in the U.S., where (he says) “the American Congress calls people, grills them and does whatever they want.”

            Normally this type of issue would not arise in the Canadian system because the government and the Parliament would be controlled by the same party.  However, the current Conservative government has only a plurality in Parliament, and this apparently means that the opposition effectively controls at least some of the standing committees.  The latest controversy involves a request to a government official to testify before the House of Commons committee on access to information, privacy and ethics, which is chaired by a Liberal Democrat. 

            What happens if the government official refuses to appear and the parliamentary committee refuses to accept the failure to appear?  Like the Congress, the Canadian Parliament has the inherent power to punish for contempt, and to imprison recalcitrant witnesses.  The last time this authority was used, however, was 1913.

           From my last three posts on Miranda (see here, here and here), one can see the argument that would be made by opponents of a “public safety” exception statute.  They will say that Miranda’s requirements are “constitutional” in nature; ergo any exceptions are similarly of constitutional dimension.  Since it is the Court, not Congress, which decides what the Constitution means (at least in the mind of judicial supremacists), Congress’s view of the proper scope of the public safety exception is of little relevance. 

            It is certainly possible that the Court will take this view, but I don’t think that its precedents require it to do so.  There are at least two possible grounds on which the Court could uphold a public safety exception statute: (1) that Congress’s reasoned factfinding is relevant to the constitutional test as set forth in Quarles; and (2) that stare decisis does not require the Court to strike down statutes which do not attempt to reverse the general rule established in Miranda, but merely establish reasonable exceptions thereto. 

            Consider the following from the Court’s recent opinion in Citizens United v. FEC, 558 U.S. __ (2010): “When Congress finds that a problem exists, we must give that finding due deference, but Congress may not choose an unconstitutional remedy.”  By analogy, the Court must defer to a congressional finding that providing Miranda warnings to a terrorist would impede law enforcement from obtaining vital intelligence that might prevent an imminent attack, even though it need not defer to Congress’s ultimate determination on the admissibility of the terrorist’s unwarned statements.  Recall that in Quarles the Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for [Miranda’s] prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”  If this balancing test is the controlling constitutional test, a congressional finding on the public safety issue would seem clearly relevant to, if not dispositive of, admissibility. 

            Furthermore, while Dickerson affirms Miranda’s continuing validity as a “constitutional holding,” it is less than clear what that holding is.  As conceived by the Dickerson Court , Miranda is essentially a constitutional policy that “reliance on the traditional totality-of-the-circumstances test raise[s] a[n] [unacceptably great] risk of overlooking an involuntary custodial confession.” 

            We know that stare decisis prohibits Congress from simply reinstating the  totality-of-the-circumstances test, but this doesn’t necessarily preclude Congress from establishing exceptions for certain categories of cases.  Quarles and other post-Miranda cases demonstrate that the courts can still make determinations of voluntariness even when no warnings are given.  It is difficult to see a principled reason why Congress could not provide for admission of voluntary statements in limited circumstances. 

            In his Citizens United concurrence, Chief Justice Roberts explained that stare decisis “counsels deference to past mistakes, but provides no justification for making new ones.”  Would applying Miranda’s rules, developed for use in ordinary law enforcement in the 1960s, to intelligence-focused interrogations of suspected terrorists qualify as a “new mistake”?  Hard to say, but I wouldn’t rule it out. 

            Finally, one should not forget that Miranda itself left room for legislative action that provides alternative safeguards to ensure voluntariness.  Such safeguards would provide an additional basis on which the Court might defer to a public safety statute.  Although it might be politically controversial, for example, Congress could require that unwarned interrogations of terrorists be videotaped, in order to facilitate the court’s determination of voluntariness. 

            So I think that critics are premature when they dismiss the viability of a public safety exception statute for terrorist interrogations.