By 1996, Newt Gingrich's Republican Revolution was in full command of Congress and could move its agenda forward without delay. Bill Clinton, pursuing re-election and ever the canny politician, forestalled any Republican effort to paint him as out-of-touch, as evidenced by the Republican Revolution, by, essentially, rolling over on some major pieces of legislation which have done a great deal of disservice to the United States.
By the mid-80s, the Supreme Court's death penalty jurisprudence had produced a system of capital punishment which deferred the imposition of the death penalty indefinitely in many cases, as defense counsel filed many appeals. Even as the courts were working out the questions that these appeals raised (which would, in most cases, forestall future appeals), the perception arose, particularly among the tough-on-crime constituency of many politicians, that the death penalty was absurdly broken. (It is, but that'll be the subject of another essay.) Streamlining the process was one of the goals of AEDPA, so that we could put those pesky murderers to death with dispatch.
Article I, Section 9, clause 2 of the U.S. Constitution holds that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Capitalization in original.)
Now, I'm not a lawyer, and this is surely a naive presumption, but what that tell me is that the writ of habeas corpus cannot be suspended, i.e., that it must be available to anyone in government custody. It is called the Great Writ for a reason, after all; it is historically one of a citizen's strongest weapons against government tyranny.
AEDPA changed that. Under AEDPA, you get one writ in federal court and you're done. That's it. Game over. Even if your lawyer's a screw-up or new evidence becomes available after the first writ, you can't submit another writ to federal court. That doesn't sound like justice to me.
The Supreme Court has mostly rolled over on AEDPA, of course; they are quick to defer to Congress's restrictions on federal courts' jurisdiction even when it potentially impacts constitutional issues. Frankly, the idea that justice should ever take a second seat to procedure is abhorrent to any advocate of good government, yet that is often the position of members of the Supreme Court. Cf. Moore v. Texas, (535 U.S. ____ (2002), Scalia, J., dissent from granting of stay of execution).
Now, I've been playing a little shell game with you, which I'll reveal right now. The restriction on the writ applies primarily to what's known as collateral review, i.e., filing the writ in federal court when you were convicted in state court of state crimes. It is presumed that you still have access to state courts for relief even when the federal courts are procedurally barred to you.
However, that ignores that many states also bar the writ (especially multiple writs) on procedural grounds. For example, it's difficult in many states for convicts to challenge their conviction on the grounds of new DNA evidence, even though DNA testing was simply not available to them during their original trial and appeals.
Furthermore, one of the many lessons of the civil rights era, and indeed, of our entire history, is that the federal courts are a necessary refuge against the abuses of state court. Limiting access to federal court ensures that innocent people and people abused by the system stay in prison unjustly.
This act completely revamped the regulatory structure of telecom. Much of what it did was a necessary response to rapidly-evolving technology. However, much of it was written by business for business, without Adam Smith's invisible hand guiding them toward public good.
For example, the Act removed nearly all restrictions on radio station ownership. Previously, no company could own more than a few stations, nor control a local market. As Eric Boehlert has explained in Salon, the result of removing those restrictions has resulted in massive consolidation. In particular, Clear Channel Communications now owns 1200 stations. If you listen to pop or rock in the top 80 markets, you're more than likely listening to Clear Channel. By most accounts, Clear Channel has not been shy about using this extraordinary clout, e.g. in leveraging business for their concert promotion division. all a direct result of the Reagan Republicans' worship of deregulation.
Similarly, the Act was supposed to pave the way for competition in local phone service. Now, many smarter people than I have written about the virtues of government-sanctioned monopolies in some circumstances. Utilities are the prime example of a public good arising from a monopoly: In return for freedom from competition, a utility promises that it will provide consistent service at consistent prices to everyone.
For example, firms like Louisville Gas & Electric earned their monopolies by funding the Rural Electric Cooperatives that ran powerlines throughout the rest of Kentucky. Without that use of a public monopoly, my parents' home in the boondocks might still be without power.
Local phone service is another example. Now, one can indeed argue that the need for a government-sanctioned monopoly has passed. It is indeed plausible that the economics have shifted and that no customer would go unserved. I'll let economists argue about that one. What I'll argue about it is the results: There are *fewer* companies providing local telephone service now than there were in 1996. As with radio stations, we've seen consolidation (albeit for different reasons). This for an Act that was promised to deliver increased choice.
I'll grant that the regulatory structure remains so complex that, in fact, no local competition model has been implemented anywhere in the U.S. that I'm aware of--the Supreme Court continues to deal with extremely heated disagreements between the FCC and telecoms over local competition. But that only underscores the inadequacy of the legislation.
One important part of the Act was the Communications Decency Act, about which so much has been written that I'll only reiterate that it was ignorant moral posturing of the worst kind. It has, thankfully, been nullified on First Amendment grounds.
A.k.a. Immigration Reform Act of 1996.
Immigration Lass can discuss this sucker in far more intricate detail than I can, so I'll restrict myself to one limited aspect. Like AEDPA, IRA imposes very strong limitations on federal court jurisdiction, this time over immigration matters.
The Supreme Court has a history of deferring to Congress's plenary power to control immigration, but even so, the Due Process clause of the Fourteenth Amendment alone should be sufficient to require some ability to review INS decisions. Instead, IRA precludes most federal jurisdiction, while mandating such constitutionally suspect practices as indefinite detention of immigrants who cannot be deported. These are immigrants who have committed crimes and served their time, but whose home countries refuse to take them. IRA tells the INS to just hold them in prison until, y'know, whenever, without court oversight or appeal.
Er, um, I hate to repeat myself, but that is facially abhorrent to any justice system, let alone to one that should be the world's showcase system of justice.
Conclusion
There you have it, folks, part of the real legacy of the Republican Revolution of 1994: Bad business and injustice. Thanks, Newt and Bill!
Posted by Greg at August 21, 2002 10:58 AM