Feb 12, 2016

California Assemblyman Does Not Propose Bill Banning People on No-Fly List From Buying Guns, Thanks to LawProfs

In December, I received an email out of the blue from a legislative counsel to California Assemblymember Mike Gatto. She was inquiring about the constitutionality of a law that would prohibit, or restrict people on the federal no-fly list from purchasing guns in California. My answer was that such a law would be unconstitutional, for reasons I stated in this post. In short, people are added to this list without any due process of law. It would violate both the right to keep and bear arms, as well as the Due Process Clause, to deny someone a constitutional right without any process at all. I explained this position to the legislative counsel, who took detailed notes, and explained that her boss was genuinely interested in hearing different perspectives. Over the next month, we had a few more phone conversations. At each juncture, she asked me about different ways of tweaking the bill, so that a hearing could be afforded before a person is prohibited from buying a gun. I explained that such a hearing would be pointless, because the federal government will not disclose the reason why someone was added to the list. It would be a rump hearing, without any conceivable evidence. After that, I didn’t hear anything else.

Yesterday on Twitter, Asssemblymember Gatto announced that he was not proceeding with the bill, and kindly thanked several law professors who advised him.

It is really, really refreshing that an elected official considered a bill that was in the zeitgeist, talked to constitutional experts from across the spectrum, and made a decision contrary to what he was initially inclined to do. Kudos to Mr. Gatto and his staff for taking the Constitution seriously.

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Feb 12, 2016

The Constitution at the Democratic Debate in Milwauke

Tonight Sen. Sanders and Sec. Clinton had a head-to-head debate in Milwaukee.

First, the issue of President Obama’s executive action on immigration came up and Judy Woodruff asked Sanders if he would “go further” than DAPA. He said he would use “executive orders” for the benefit of all 11 million aliens who are in the United States illegally.

Woodruff: Senator Sanders, one of the causes of anxiety for working class Americans is connected to immigrants. President Obama, as you know, has issued executive actions to permit some 5 million undocumented immigrants who are living now in the United States to come out of the shadows without fear of deportation to get work permits. Would you go further than that? And if so, how specifically would you do it? Should an undocumented family watching this debate tonight, say, in Nevada, rest easy, not fear of further deportations under a Sanders presidency?

SANDERS: The answer is yes. We’ve got 11 million undocumented people in this country. I have talked to some of the young kids with tears rolling down their cheeks, are scared to death that today they may or their parents may be deported.

I believe that we have got to pass comprehensive immigration reform, something that I strongly supported. I believe that we have got to move toward a path toward citizenship. I agree with President Obama who used executive orders to protect families because the Congress, the House was unable or refused to act.

And in fact I would go further. What would motivate me and what would be the guiding light for me in terms of immigration reform, Judy, is to bring families together, not divide them up.

And let me say this also. Somebody who is very fond of the president, agrees with him most of the time, I disagree with his recent deportation policies. And I would not support those.

Bottom line is a path towards citizenship for 11 million undocumented people, if Congress doesn’t do the right thing, we use the executive orders of the president.

Sec. Clinton, who has previously said she would grant deferred actions to the parents of the Dreamers, did not go as far as Sanders:

CLINTON: I strongly support the president’s executive actions. I hope the Supreme Court upholds them. I think there is constitutional and legal authority for the president to have done what he did.

Clinton also repeated a refrain, that before there was Obamacare there was Hillarycare.

CLINTON: I can only say that we both share the goal of universal health care coverage. You know, before it was called Obamacare, it was called Hillarycare.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here, hereherehere, and here), and Bernie Sanders (here and here).

Disclosure: I support the Ted Cruz campaign.

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Feb 11, 2016

The Shadow Docket and #SCOTUS As A Court of Error Correction

As Will Baude has explained, in recent years the Roberts Court has turned to its “shadow docket” to resolve increasingly-important matters without argument, through cursory per curiam orders. Perhaps the most significant such shadow-docket entry was the Court’s decision on Tuesday to put on hold the final rule for the Clean Power Plan while the case is being litigated. (Jon Adler provides a detailed background of the rule). As best as I can tell, the Court has never granted such extraordinary relief while the case was being litigated in the Court below.

While this may be the first such order of its kind, it is something we may see more of in the future in light of the transitioning judiciary. From the period of 1980-1992, through three Republican administrations, the lower courts were filled with (generally) conservative jurists. Though there was eight years of Clinton afterwards, it was closely followed by eight years of Bush 43. In 2008, for the most part, the Circuit Courts were stacked with judges appointed by Republican Presidents, plus many senior-status Reagan and Bush 41 judges still hanging around. After eight years of Obama, those numbers have turned around. Many of the older Reagan and Bush 41 judges are slowly leaving the bench. This increases the percentage of Clinton and Obama judges on the federal courts of appeals. If the next President is a Democrat, with four to eight years, the judiciary will be saturated by Democratic-appointed judges in much the same way it was saturated with Republican-appointed judges in 1992.

If in fact this is what happened, the Supreme Court–which until there is a retirement maintains a quasi-conservative majority–very well may increase its role as a Court of error correction. No, I don’t mean error correction in terms of facts. I am talking about error correction in terms of panels that deviate from where SCOTUS thinks the law ought to be. Even before a Circuit Split has emerged, the Court may take action to quickly and promptly correct deviant Circuit Courts through the use of its shadow docket. The decision to grant the stay in the Clean Power Plan case may be an inkling of what may come next, as the Circuits begin to fall further away from the Court’s ideological middle. These short orders, which on their face simply seek to maintain the status quo, provide hints to the lower Court of how they ought to rule. After the Court’s stay, do you think the D.C. Circuit would get the picture that there are five votes to invalidate the Clean Power Plan? Will that even matter? Probably not. But these short orders on the shadow docket do serve an important signaling function–to the extent the lower courts care to follow their lead.

 

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Feb 11, 2016

Video: First Amendment, Second Amendment, and 3D-Printed Guns at University of Colorado Federalist Society Chapter

On 2/10/16, the University of Colorado Federalist Society Chapter kindly hosted me for a discussion on the First Amendment, Second Amendment, and 3D-Printed Guns. Prof. Richard Collins was kind enough to provide commentary.

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Feb 9, 2016

Breaking: #SCOTUS Grants Stay in Clean Power Plan Cases

This afternoon, the Supreme Court has granted a stay in five applications for a stay in the “Clean Power Plan” litigation. Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from each grant. Here is the order in 15A773, West Virginia v. EPA:

The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

This is a hugely significant development, and puts on hold all of the implementation of the Clean Power Plan–including the requirement for states to begin submitting plans of how to comply with the new regulations.

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Feb 9, 2016

Events tomorrow in Colorado

On Wednesday, February 10 at noon, I will be speaking to the University of Colorado Federalist Society Chapter on the First Amendment, Second Amendment, and 3D-Printed Guns. Prof. Richard Collins will provide commentary for the talk. The event will be in Room 206, and is open to the public.

Later that day, at 5:30 p.m. I will be speaking at a happy hour event for Denver Lawyer’s Chapter on U.S. v. Texas. The event will be held at Appaloosa Bar & Grill, 535 16th Street, Denver, CO 80202.

If you are in Colorado tomorrow, I hope to see you soon!

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Feb 9, 2016

Prop1 Class 8 – Acquisition by Find

The lecture notes are here.

When you think of a Chimney Sweep, this image may come to mind.

burt-2

But this image is probably a lot closer to young Master Armory.

victorian style chimney sweep, a child chimney sweep, hulton pi

Studio_portrait_of_young_chimney_sweeps,_by_Havens,_O._Pierre_1838-1912_(crop)

This diagram shows the different ways a sweep can get stuck in a flue.

A seven-flue stack, showing how it would be cleaned by Climbing boys, or with little modification by a human cleaning machine (a brush). In the diagram: A- is a hearth served by vertical flue, a horizontal flue, and then a vertical rise having two right-angled bends that were difficult for brushes. B- is a long straight flue (14in by 9in) being climbed by a boy using back elbows and knees. C- is a short flue from a second floor hearth. The climbing boy has reached the chimney pot, which has a diametre too small for him to exit that way D (omitted) is a short flue from the third floor E shows a disaster. The climbing boy is stuck in the flue, his knees jammed against his chin. The master sweep will have to cut away the chimney to remove him. First he will try to persuade him to move: sticking pins in the feet, lighting a small fire under him. Another boy could climb up behind him and try to pull him out with a rope tied round the legs- it would be hours before he suffocated. F (omitted) G How a flue could be straighten to make it sweepable by mechanical means H A dead climbing boy, suffocated in a fall of soot that accumulated at the cant of the flue.

A seven-flue stack, showing how it would be cleaned by Climbing boys, or with little modification by a human cleaning machine (a brush). In the diagram:
A- is a hearth served by vertical flue, a horizontal flue, and then a vertical rise having two right-angled bends that were difficult for brushes.
B- is a long straight flue (14in by 9in) being climbed by a boy using back elbows and knees.
C- is a short flue from a second floor hearth. The climbing boy has reached the chimney pot, which has a diametre too small for him to exit that way
D (omitted) is a short flue from the third floor
E shows a disaster. The climbing boy is stuck in the flue, his knees jammed against his chin. The master sweep will have to cut away the chimney to remove him. First he will try to persuade him to move: sticking pins in the feet, lighting a small fire under him. Another boy could climb up behind him and try to pull him out with a rope tied round the legs- it would be hours before he suffocated.
F (omitted)
G How a flue could be straighten to make it sweepable by mechanical means
H A dead climbing boy, suffocated in a fall of soot that accumulated at the cant of the flue.

Frequently the boys would get stuck (the image on the right).

410px-Climbing_boys_in_chimneys

Here are some examples of de Lamerie’s work (courtesy of the Dukeminier property web site).

Source: Mfa.org. This was created in 1736 and is currently housed at the Museum of Fine Arts in Boston, Massachusetts.

Source: Mfa.org. This was created in 1736 and is currently housed at the Museum of Fine Arts in Boston, Massachusetts.

This work was created in 1745 and is housed at the Sterling and Francine Clark Art Institute in Williamstown, Massachusetts.

This work was created in 1745 and is housed at the Sterling and Francine Clark Art Institute in Williamstown, Massachusetts.

There are many different de Lamerie works in this photograph of the interior of the Marks Antique Silver gallery in London, England. Marks frequently sends travelling galleries of antique silver to the United States in places such as Palm Beach, L.A., and New York City.

There are many different de Lamerie works in this photograph of the interior of the Marks Antique Silver gallery in London, England. Marks frequently sends travelling galleries of antique silver to the United States in places such as Palm Beach, L.A., and New York City.

This is one of the less common gold pieces of art created by de Lamerie. This is housed at the Gilbert Collection in London, England.

This is one of the less common gold pieces of art created by de Lamerie. This is housed at the Gilbert Collection in London, England.

Here are a number of stories about finding abandoned stuff:

This is a lithograph of Gwernaylod House in Overton-on-Dee, Wales (1829)

Gwernhaylod

Here is a trailer for a fascinating documentary about the legal fight between two men who claim to have caught Barry Bonds’s record-breaking 73 homerun in 2004.


And here is the moment it hits the crowd.

bondsball

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Feb 9, 2016

ConLaw Class 8 – The Executive Power III- Faithfully Executing The Law

The lecture notes are here.

The Executive Power III- The Recognition Power

Here is nine year old Menachem Zivotofsky in November, 2011, on his first trip to One First Street.

Ari Zivotofsky, Menachem Zivotofsky

Here is twelve year old Menachem Zivotofsky in 2014, on his second trip to One First Street.

ziv-2014

In the first picture, he was upset the Court was only focusing on standing, but now that the Court reached the merits, he’s all smiles! Alas, the case did not go his away.

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Feb 8, 2016

Video: Selecting the Next Justice at Berkeley Law School Federalist Society Chapter

On January 27, the Berkeley Law Federalist Society Chapter hosted me and Ed Whelan for a discussion on selecting the next Supreme Court Justice. Prof. Bertrall Ross was kind enough to offer commentary.

FullSizeRender

 

FullSizeRender (2)

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Feb 7, 2016

Richard Nixon Broke John Adams’s Gavel

Apparently, the President of the Senate used the same gavel from 1789–when John Adams presided–until 1954 when Richard Nixon took the seat. Why? During a raucous debate over atomic energy, Tricky Dicky cracked it! The New York Times has this report from 1982:

It was one of those late night sessions in which some senators, sometimes after a nip or so too many, had become a bit raucous. The Vice President, trying to restore order, rapped the gavel sharply.

Too sharply, in fact; the gavel began falling apart.

That was 28 years ago. The debate was over opening atomic energy to commercial use. The Vice President was Richard M. Nixon. The tiny ivory gavel that broke that night is still brought into the Senate chamber each day during the session, nestled in a velvetlined box that has a twin compartment housing a duplicate ivory gavel used by the presiding officer.

The two gavels, almost identical, are about the size of a threeminute hourglass, such as those used by cooks to time eggs. They do not have handles, as do more traditional gavels.

The original is believed to have been first used by Vice President John Adams to call the Senate to order in 1789 in New York City. There  are no records of who fashioned the gavel.

Nixon then set out to find a replacement. The Government of India provided a new ivory gavel, which is still used today. The gavel on the left is the original, and on the right is the 1954 replacement.

gavels

There is some dispute over whether the gavel in fact dated back to 1789. Traditions of the Senate notes:

The earlier gavel was in use by 1834, and according to one account, Vice President John Adams used it to call the first Senate to order in New York City on March 4, 1789. That gavel has silver plates affixed to either end.

The book 200 Notable Days: Senate Stories 1787-2002 explained that “Adams may have used the gavel in 1789, although he seems to have preferred the attention-getting device of tapping his pencil on a water glass.” Of course, Adams derided the position. He said, “My country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived.” While the Senate debates were not recorded, this recreation from the John Adams miniseries on HBO likely demonstrates what the interactions between Adams and the Senators would have been like.

 

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Feb 7, 2016

White House: Exective Action on Guns “Represent the Maximum the Administration can do Under the Current Law”

In an article in the Times lamenting how the President can’t take more unilateral action on gun control, the White House laid down a marker explaining that they are at the outer limits of the President’s authority.

Administration officials say that with Congress unwilling to take any legislative action, the White House’s plan goes as far as Mr. Obama can go to keep guns out of the hands of criminals and mentally ill people.

“The actions the president announced last month represent the maximum the administration can do under the current law,” said Eric Schultz, the deputy White House press secretary, “namely increasing mental health treatment and reporting, improving public safety, managing the future of gun safety technology, and of course, enhancing the background check system.”

Of course, this assurance means absolutely nothing because President Obama personally explained that he lacked the authority to do what he did with DACA and DAPA.

I continue to be amazed with the civically-challenged Times, which is suprised that the President is limited in what he can do without congressional funding. For example, conducting more enforcement actions requires more appropriations by Congress. This concept is foreign to the pen-and-phone generation.

The absence of aggressive enforcement is a reminder of the practical limits of Mr. Obama’s executive authority, even as he repeatedly asserts the power of the Oval Office to get things done in the face of inaction by a Republican Congress.

Mr. Obama’s lawyers have cautioned against seeming to create new gun laws by fiat. The most the president can do, they have said, is to direct better enforcement of the laws that already exist.

My take on the President’s actions on guns are detailed in National Review.

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Feb 6, 2016

The Constitution at the New Hampshire GOP Debate

There was a lot of constitutional-related commentary at the New Hampshire GOP Debate on 2/6/16.

First, Sen. Cruz was asked about how he would reform immigration law. His answer invoked the Take Care Clause:

CRUZ: What you do is, you enforce the law. You know, under the Constitution, the president has an obligation to, quote, “Take care that the laws be faithfully executed.” Federal immigration law provides, if someone is here illegally and is apprehended, they are to be deported.

We saw just this past week the head of the border patrol union testify before Congress that President Obama had given the order to the border patrol to stand down, not to enforce the law. That is wrong. I will enforce the law, and for everyone who says, you can’t possibly do that, I would note that in eight years, Bill Clinton deported 12 million people.

In eight years, George W. Bush deported 10 million people. Enforcing the law — we can do it. What is missing is the political will. And when they were deporting the people, the border wasn’t secure, so they’d come right back. Once you secure the border, enforcing the law will solve this problem and that will benefit American workers.

Second, Donald Trump offered this explanation of how to replace Obamacare:

TRUMP: We’re going to repeal Obamacare. We are going to replace Obamacare with something so much better. And there are so many examples of it. And I will tell you, part of the reason we have some people laughing, because you have insurance people that take care of everybody up here.

I am self-funded. The only one they’re not taking care of is me. We have our lines around each state. The insurance companies are getting rich on Obamacare. The insurance companies are getting rich on health care and health services and everything having to do with health. We are going to end that.

We’re going to take out the artificial boundaries, the artificial lines. We’re going to get a plan where people compete, free enterprise. They compete. So much better.

Third, in one of the more feisty exchanges of the night, Donald Trump was asked about eminent domain:

TRUMP: Well, let me just tell you about eminent domain because almost all of these people actually criticize it, but so many people have hit me with commercials and other things about eminent domain.

Eminent domain is an absolute necessity for a country, for our country. Without it, you wouldn’t have roads, you wouldn’t have hospitals, you wouldn’t have anything. You wouldn’t have schools, you wouldn’t have bridges. You need eminent domain. And a lot of the big conservatives that tell me how conservative they are — I think I’m more than they are — they tell me, oh — well, they all want the Keystone Pipeline. The Keystone Pipeline, without eminent domain, it wouldn’t go 10 feet, OK? You need eminent domain. And eminent domain is a good thing, not a bad thing.

There is so much wrong here. There is a stark difference between eminent domain for public use,” which includes goals like roads or bridges, as well as common carriers, which include railroads and (at least under Texas law) pipelines.

Cruz continues to explain that those who are affected by eminent domain get “a fortune.”

And what a lot of people don’t know because they were all saying, oh, you’re going to take their property. When somebody — when eminent domain is used on somebody’s property, that person gets a fortune. They get at least fair market value, and if they are smart, they’ll get two or three times the value of their property. But without eminent domain, you don’t have roads, highways, schools, bridges or anything. So eminent domain — it’s not that I love it, but eminent domain is absolutely — it’s a necessity for a country. And certainly it’s a necessity for our country.

Wrong. The Constitution provides for “just compensation,” which is seldom fair market value. It doesn’t include transaction costs, legal costs, nor sentimental costs.

Jeb Bush interjected with a near-citation to the Takings Clause:

BUSH: The difference — the difference between eminent domain for public purpose — as Donald said, roads and infrastructure, pipelines and all that — that’s for public purpose. .

The Fifth Amendment states that “nor shall private property be taken for public use, without just compensation.” Public use, not public purpose. (Although, Justice Douglas in Berman v. Parker, and Justice Stevens in Kelo, erroneously frame the issue as one of “public purpose.”)

Bush continues that Trump attempted to use eminent domain to seize the property of an old woman in Atlantic City.

But what Donald Trump did was use eminent domain to try to take the property of an elderly woman on the strip in Atlantic City. That is not public purpose, that is down right wrong. And here’s the problem with that. The problem was, it was to tear down — it was to tear down — it was to tear down the house..

Trump denied that he seized the property.

TRUMP: Jeb wants to be — he wants to be a tough guy tonight. I didn’t take the property.

Bush shot back:

BUSH: And the net result was — you tried. And you lost in the court.

Trump said “The woman ultimately didn’t want to do that. I walked away.”

Bush knocked him back:

That is not true. And the simple fact is to turn this into a limousine parking lot for his casinos is a not public use. And in Florida, based on what we did, we made that impossible. It is part of our Constitution. That’s the better approach. That is the conservative approach.

Bush is exactly right, as the New York Times fact checker explained:

Mr. Bush is correct: Mr. Trump, with the help of the city, tried to use eminent domain against the woman, Vera Coking, when she refused to sell. He wanted her property to expand Trump Plaza Hotel and Casino. After a three-year saga, Ms. Coking prevailed in State Supreme Court.

Trump replied that the Keystone pipeline was a “private job.”

Trump: Eminent domain, the Keystone pipeline — do you consider that a private job? Do you — do you consider that…

Bush correctly replied, quoting the 5th Amendment, that it is a “public use.”

BUSH: I consider it a public use.

TRUMP: No — no, let me ask you, Jeb.

(BELL RINGS)

Do you consider the Keystone pipeline private?

BUSH: It’s a public use. It’s a public use.

TRUMP: Is it public or private?

BUSH: It’s a public use. TRUMP: Real — a public use?

BUSH: Yeah.

TRUMP: No, it’s a private job.

BUSH: It’s a public use.

TRUMP: It’s a private job.

BUSH: Established by the courts — federal, state courts.

TRUMP: You wouldn’t have the Keystone pipeline that you want so badly without eminent domain.

Fourth, Rubio tied conservatism to the Constitution:

RUBIO: Well, I think conservatism is about three things and Donald touched on one of them, but it’s about three things. The first is conservatism is about limited government, especially at the federal level. The federal government is a limited government, limited by the Constitution, which delineates its powers. If it’s not in the Constitution, it does not belong to the federal government. It belongs to states, local communities and the private sector.

Fifth, in Trump’s discussion of the economy, he said:

And we’re not going to lose Pfizer, which is now leaving, and other great companies, which is now leaving.

This was a PERFECT opportunity to talk about Kelo, and ask whether he would use eminent domain to attract a Pfizer facility.

Sixth, Ted Cruz was asked about waterboarding and torture.

MUIR: Martha, thank you. We’re just going to — we’re going to stay on ISIS here and the war on terror, because as you know, there’s been a debate in this country about how to deal with the enemy and about enhanced interrogation techniques ever since 9/11.

So Senator Cruz, you have said, quote, “torture is wrong, unambiguously, period. Civilized nations do not engage in torture.” Some of the other candidates say they don’t think waterboarding is torture. Mr. Trump has said, I would bring it back. Senator Cruz, is waterboarding torture?

CRUZ: Well, under the definition of torture, no, it’s not. Under the law, torture is excruciating pain that is equivalent to losing organs and systems, so under the definition of torture, it is not. It is enhanced interrogation, it is vigorous interrogation, but it does not meet the generally recognized definition of torture.

MUIR: If elected president, would you bring it back?

CRUZ: I would not bring it back in any sort of widespread use. And indeed, I joined with Senator McCain in legislation that would prohibit line officers from employing it because I think bad things happen when enhanced interrogation is employed at lower levels.

But when it comes to keeping this country safe, the commander in chief has inherent constitutional authority to keep this country safe. And so, if it were necessary to, say, prevent a city from facing an imminent terrorist attack, you can rest assured that as commander in chief, I would use whatever enhanced interrogation methods we could to keep this country safe.

Seventh, Bush said he would not bring back waterboarding, but would keep Guantanamo open:

BUSH: No, no, I wouldn’t. No, I wouldn’t. And it was used sparingly, Congress has changed the laws and I — and I think where we stand is the appropriate place. But what we need to do is to make sure that we expand our intelligence capabilities. The idea that we’re going to solve this fight with predator drones, killing people somehow is a — is more acceptable than capturing them, securing the information. This is why closing Guantanamo is a complete disaster. What we need to do is make sure that we are kept safe — by having intelligence capabilities, both human and technological intelligence capabilities far superior than what we have today. That’s how you get a more safe place is by making sure that we’re fully engaged. And right now, this administration doesn’t do that.

Eighth,  Rubio would also keep Gitmo open:

Rubio: But, here’s the bigger problem with all this, we’re not interrogating anybody right now. Guantanamo’s being emptied by this president. We should be putting people into Guantanamo, not emptying it out, and we shouldn’t be releasing these killers who are rejoining the battlefield against the United States.

Ninth, Mary Katherine Ham asked about executive orders. First to Sen. Cruz:

HAM: Thanks, David. Senator Cruz, on the campaign trail you’ve promised voters a lot, in fact if you’re elected president you’d say you end Common Core immediately, abolish the IRS, and do away with sanctuary cities. You’ve also been a persistent critic of President Obama’s executive overreach, going it alone, not working with Congress. How do you intend to implement this aggressive agenda within your Constitutional authority, especially given that it would require working with Congress and Washington players with whom you’re happy to say you have a strained relationship?

CRUZ: Well, thank you for that question. You know, there are three avenues of presidential authority to change the direction of this country. The first is executive power, the second is foreign policy, and the third is legislation. Executive power, as we all know, has been the preferred vehicle of President Obama, abusing his authority, abusing his constitutional authority. Now, the silver lining of that is everything done with executive power can be undone with executive power, so I have pledged on day one I will rescind every single illegal and unconstitutional executive action Barack Obama has done. That means on day one his efforts to restrict the Second Amendment go away with the strike of a pen. That means on day one his illegal executive amnesty goes away with the strike of a pen. The reason I can end Common Core at the federal level is because Obama is abusing executive power using Race to the Top funds in the Department of Education to force it on the states. That’s one avenue. The second avenue of change is foreign policy, and foreign policy can change the fastest. It’s worth remembering that Iran released our hostages the day Reagan…Was sworn in. And, the third is legislation, and that can only be done with the people behind you, which is why the two big legislative initiatives I’m campaigning on are repealing Obamacare, and adopting a simple flat tax to abolish the IRS.

Tenth, Trump offered these comments about executive action:

TRUMP: The problem with executive authority for the president, it’s really bad news for this reason. Since he’s given up on working with Congress, he thinks he can impose anything he wants. He’s not a king. He’s a president. An executive order should be used frankly in consolidation and with consulting with the leadership in the — in the Congress.

Eleventh, Bush said he would repeal (really rescind) the President’s unconstitutional executive orders, and focus on the 10th Amendment:

BUSH: This is a — this is an important subject. I agree with everything that’s been said here about repealing unconstitutional rules and rules that are creating real burdens for investing that creating jobs.

But we also ought to get back to being a Tenth Amendment country, as well, a country that respects the states to be able to make more decisions. And in the Bush administration, we would shift transportation dollars back to the states. I trust Kasich and Christie to build the roads and the infrastructure of their states than Washington, D.C.

EPA delegated authority, back to the states. Education dollars, back to the states. I would like to see reform take place all across the country, where there’s more vouchers, more freedom.

Twelfth, Trump made a circular comment about litigiousness, and what I think something about qualified immunity for excessive force suits:

MUIR: Great. Mr. Trump, I did ask about bridging the divide though as president. So what would you say to the American families who say we have lived through this, we have seen excessive force? What would you say to those people?

TRUMP: Well, they do. And, you know, they sue. Everybody sues, right? They see excessive — I mean, they go out, they sue. We have so much litigation — I see the courts, I see what they’re doing. They sue, and you know what? We don’t want excessive force. But at what point — you know, either you’re going to have a police force that can do its job…

Thirteenth, Marco Rubio gave a shot-out to the Little Sisters of the Poor:

And I do believe it is important also to recognize, you want to talk about religious discrimination in America. Well, I don’t think Barack Obama is being sued by any Islamic groups, but he is being sued by the Little Sisters of the Poor. We are facing in this country Christian groups and groups that hold traditional values who feel and in fact are being discriminated against by the laws of this country that try to force them to vie to violate their conscience.

Fourteenth, Chris Christie alluded to Jacobson v. Massachusetts, and the topic of mandatory quarantines with respect to the spread of diseases.

As fear spreads now of the Zika virus and with the Rio Olympics just months away, is there a scenario where you would quarantine people traveling back from Brazil to prevent the spread in the United States?

CHRISTIE: You bet I would. And the fact is that because I took strong action to make sure that anyone who was showing symptoms — remember what happened with that nurse. She was showing symptoms and coming back from a place that had the ebola virus active and she had been treating patients. This was not just some — like, we picked up her just for the heck of it, alright?

We did it because she was showing symptoms, and the fact is that’s the way we should make these decision. You make these decisions based upon the symptoms, the medicine, and the law. We quarantined her, she turned out to test negative ultimately after 48 hours, and we released her back to the State of Maine.

Fifteenth, several of the candidates were asked about requiring women to register for the draft, and issue resolved by the Court in Rostker v. Goldberg.

Rubio supported it:

But, I support that, and obviously now that that is the case I do believe that Selective Service should be opened up for both men and women in case a Draft is ever instituted.

As did Bush:

I do, and I do think that we should not impose any kind of political agenda on the military. There should be — if women can meet the requirements, the minimum requirements for combat service they ought to have the right to do it.

And Christie:

And if a young woman in this country wants to go and fight to defend their country, she should be permitted to do so.

Sixteenth, during a discussion on abortion, Rubio referenced the federal ban on a specific form of partial birth abortions, upheld in Carhart v. Gonzales.

Why doesn’t the media ask Hillary Clinton why she believes that all abortion should be legal, even on the due date of that unborn child.

Why don’t they ask Hillary Clinton why she believe that partial- birth abortion, which is a gruesome procedure that has been outlawed in this country, she thinks that’s a fundamental right. They are the extremists when it comes to the issue of abortion and I can’t wait to expose them in a general election.

However, in a line that was probably missed by most, Rubio acknowledged that the Constitution protects a right to abortion:

On the one hand is the right of a woman to choose what to do with her body which is a real right.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (herehere, and here), and Bernie Sanders (here and here).

Disclosure: I support the Ted Cruz campaign.

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Feb 5, 2016

Bernie, Hillary, and #SCOTUS

At the Democratic Debate on February 4–the first head-to-head matchup between Bernie Sanders and Hillary Clinton, the Supreme Court came up several times.

First, Rachel Maddow asked Clinton about the death penalty:

Maddow: The last time I had the chance to talk with you on this issue, on the death penalty, you said that capital punishment has a place in a very few federal cases, but you also said you would breathe a sigh of relief if the Supreme Court abolished the death penalty nationwide. Tonight, do you still support capital punishment, even if you do so reluctantly?

CLINTON: Yes, I do. And — you know, what I hope the Supreme Court will do is make it absolutely clear that any state that continues capital punishment either must meet the highest standards of evidentiary (ph) proof of effective assistance of counsel or they cannot continue it because that, to me, is the real dividing line.

Clinton has not yet thrown herself into the Breyer patch on the 8th Amendment.

But then Clinton gives a nonsensical argument about how the death penalty should be prohibited by the states, but not by the federal government:

I do for very limited, particularly heinous crimes believe it is an appropriate punishment, but I deeply disagree with the way that too many states are still implementing it. If it were possible to separate the federal from the state system by the Supreme Court, that would, I think, be an appropriate outcome.

Huh?

Second, Sanders reiterated that he would impose a Citizens United litmus test on any of his nominees to the Supreme Court:

Our job, together, is to end a rigged economy, create an economy that works for all, and absolutely overturn Citizens United. One person, one vote. That’s what American democracy is about.

So long as big money interests control the United States Congress, it is gonna be very hard to do what has to be done for working families. So let me be very clear. No nominee of mine, if I’m elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United.

Third, Clinton also stressed that she would only support Justices who would overturn Citizens United:

CLINTON: I want to reverse Citizens United.

Earlier this week, during a candidate forum, Clinton was asked about her process for nominating a Justice, and she replied that she has a “bunch of litmus tests” she would impose on her nominees. Here is the full exchange.

QUESTION:  Hi, Sec. Clinton.  You – the next president will have as many as three Supreme Court appointments to make. 

CLINTON:  Right. 

QUESTION:  I’m wondering beyond abortion are there any issues on which you would impose or assert a litmus test.  And if your answer is no, aren’t certain critical issues like marriage equality, campaign finance just so vital to what we believe in as Democrats that you would have to know the answer as to how these justices would rule before you make the nomination?

CLINTON:  Well, I’ll tell you what, Dave.  I do have a litmus test.  I have a bunch of litmus tests because I agree with you.  The next president could get as many as three appointments.  You know one of the many reasons why we can’t turn the White House over to the Republicans again is because of the Supreme Court. 

I’m looking for people who understand the way the real world works, who don’t have a kneejerk reaction to support business, to support the idea that you know money is speech, that gutted the Voting Rights Act.  

I voted for the reauthorization of the Voting Rights Act when I was in the Senate.  It passed 98 to nothing based on a very extensive set of hearings and research.  Supreme Court comes along.  They substitute their judgment for the Congress, signed by George W. Bush.  

That is one of our problems.  They have a view that I just fundamentally disagree with about what the way we have to keep the balance of power in our society is.  

So they have given way too much power to corporations.  They have given Citizens United, the biggest gift to the Koch brothers, Karl Rove and all of those folks whose values I don’t share, and who are doing everything they can to try to turn the clock back.  

We have to preserve marriage equality.  We have to go further to end discrimination against the LGBT community…

(APPLAUSE)

We’ve got to make sure…

(APPLAUSE)

We’ve got to make sure to preserve Roe v. Wade, not let it be nibbled away or repealed.  We’ve got work to do…

(APPLAUSE)

CLINTON:  – here’s how I think about it, because when I was a senator, I had to vote on Supreme Court justices.

I’m looking for people who are rooted in the real world, who know that part of the genius of our system, both economic and government, is this balance of power.  If it gets too far out of whack, so that business has too much power, any branch of the government has too much power, the delicate balance that makes up our political system and the broad-based prosperity we should be working for in our economy is the worse off for it.

So I have very strong feelings about what I’ll be looking for if I am given the honor of appointing somebody to the Supreme Court.

Jonathan Adler links to a long-ago post from Eugene Volokh on why these litmus tests are so pernicious.

Note that President Obama rejected litmus tests, although he may have applied a sister test. Justice Sotomayor relayed this story while in the Bronx–which I had not previously heard:

She said that her confirmation hearings were a horrible experience and really got her down, but she discovered a lot about the rest of the country during her one-on-one interviews with senators. “I learned what a big issue water rights are out west,” she said. “That’s not something we think about in New York.” Sotomayor said that after she won confirmation, and Elena Kagan followed her, President Obama asked Justice Ruth Bader Ginsburg, “Are you happy with the two sisters I brought you?” Ginsburg replied, “I’m very, very happy. But I’ll be even happier when you give me five more.”

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I previously advised the Rand Paul campaign, and now support the Ted Cruz campaign.

 

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Feb 4, 2016

POTUS To Open Military Front Against ISIS in Libya. What is the congressional authorization?

The New York Times reports that the President is considering opening a new front against ISIS in Libya. The article doesn’t even bother to address what the congressional authorization is for such a move. Is it the 2001 AUMF against Al Qaeda, because after all, Al Qaeda is really ISIS. Or is it the 2002 AUMF against Iraq, because after all, Iraq is really Iraq, Syria, and now Lebanon. To borrow from Justice Scalia’s dissent in King v. Burwell, “words no longer have meaning.”

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Feb 4, 2016

Prop1 Class 7 – The Bundle of Sticks

Today we will address everyone’s favorite property metaphor–the Bundle of Sticks.

iStock_000004312564XSmall1

The lecture notes are here.

Here is an article from 1970 discussing the case of State v. Shack.

Mr. Tedesco, the owner of the farm, said to a reporter who accompanied Shack and Tejeras, “I’ll smash you for this, I’m  going to get you for this. This is my property. You can’t come in here looking around.” Another farmer told the reporter, “Even President Nixon” would not be allowed in. Another farmer said that the farmers would resort to violence to repel those trying to help the workers, likening it to the violence that resulted from the civil rights movement. He said “This violence is going to snowball.” According to the Times, he said that “either Hitler or Stalin would have known how to deal with the migratory farm workers in the camp he maintains.” The TImes reports that the farmers were using the trespass laws to keep the migrant workers isolated, by not allowing them to travel from camp to camp–all wages and living conditions were kept secret. This was a “chilling” weapon to maintain tight control. On the camp, the only flush toilet “was a privy that was crawling with flies.” Seven men slept in one room, and the beds had no sheets or mattress covers. Shack was at the camp to investigate a report that a 19-year-old worker had suffered a cut on his hand while working, unable to receive wages. Tejeras went to camp to pick up 36-year-old migrant who face was slashed, had to be returned to hospital to have stitches removed. The workers made roughly $9 a week for work. A family of twelve slept in one small room with bed space for 8. The camps seldom had running water.

This appears to have been a test-case of sorts, seeing they brought a NY Times reporter with them.

shack-summary

And this is Richard Epstein.

NR_epsteinmind_620

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Feb 4, 2016

ConLaw Class 7 – The Executive Power II- Foreign Affairs and War

The lecture notes are here.

The Executive Power II- Foreign Affairs and War

  • Inherent Executive Powers (308).
  • Executive Powers for Foreign Affairs (383-385).
  • Curtiss-Wright (385-390).
  • Dames & Moore v. Regan (392-399).
  • The War Power (411-413).
  • ISIS
  • Practice and Precedent (415-416).
  • Prisoners of War and Civilian Detention (439-440).
  • Korematsu v. United States (454-468)

Curtiss-Wright

Curtiss-Wright was a manufacturer of aircrafts and other military equipment, founded in 1929.

CurtissWright-logo

Curtiss-Wright_Empire_15September1941

This is Curtiss-Wright’s headquarters in Caldwell, New Jersey (circa 1941).

Curtiss-Wright_entrance_Cladwell_NJ_1941

Curtiss-Wright got in trouble by selling weapons to Bolivia during the Chaco War (1932-1935), where Bolivia was fighting against Paraguay.  The Chaco region was thought to contain oil. Bolivia and Paraguay, both poor landlocked countries, had difficulty obtaining arms. This was largely due to the fact that Congress, through a joint resolution, gave President Roosevelt the power to embargo arms shipments to any country engaged in the Chaco war. Curtiss-Wright sent bombers and fighter planes to Bolivia, notwithstanding the embargo, and was indicted.

Here are Paraguayan (not Bolivian) soldiers manning a machine gun during the Chaco war.

curtiss-wright-machinegun

Dames & Moore v. Regan

This is Donald T. Regan, who was the secretary of the treasury in Dames & Moore v. Regan.

Regan

This is the logo for the Dames & Moore Group Company.

Dames-MooreJustice Rehnquist wrote Dames & Moore v. Regan in a short span of 8 days. There are several remarkable aspects of this opinion. First, Rehnquist cites as the definitive statement of executive power Justice Jackson’s concurring opinion Youngstown Sheet & Tube Co. v. Sawyer.

robert-jacksonOf course, Rehnquist clerked for Jackson that term. As Judge Bybee noted in this article:

Rehnquist’s first professional brush with the separation of powers came soon after the start of his legal career as a junior law clerk to Justice Robert Jackson. It was an auspicious start. Rehnquist began his clerkship in February 1952, just months prior to the famous Youngstown separation of powers litigation at the Supreme Court . . . . On May 16, 1952, the Court voted 6-3 in conference to reject Truman’s claim of authority to seize the steel mills.15 As Justice Jackson described the vote to his then-law clerks William Rehnquist and C. George Niebank, Jr., “Well boys, the President got licked.’

Yet, Youngstown was written by Jackson himself, with little involvement by his clerks. In fact Rehnquist and his co-clerks suggested resolving the case on non-separation of powers grounds.

To begin, Jackson’s law clerks had very little hand in drafting his opinions generally and little role in preparing the Youngstown concurrence specifically. 30 Thus, the Youngstown concurrence represented Jackson’s, not Rehnquist’s, work product. In fact, archival materials indicate law clerk Rehnquist suggested alternate non-separation of powers grounds on which Youngstown might have been resolved. In an apparently unsolicited memorandum to Justice Jackson, William Rehnquist and his co-clerk proposed they undertake additional research for Youngstown. Interestingly, all the issues proposed non-separation of powers grounds for resolving the appeal–e.g., by balancing equities on the preliminary injunction, etc.31 To be sure, the 1952 clerk memorandum, standing by itself, would be a thin reed to support a claim that Rehnquist had doubts about resolving the separation of powers question in Youngstown against the President. It might merely suggest Rehnquist favored the parsimonious adjudication of constitutional cases by resort to avoidance. The memorandum, however, does not stand by itself. In his book The Supreme Court, Rehnquist, without mentioning his prior memorandum, expressed doubts about how Youngstown was resolved. Noting that the separation of powers issue was not well settled, but in his view “more or less up for grabs,” he believed Youngstown might have been resolved on the balancing of equities and that the law on those issues favored the executive.32

When pressed to write Dames & Moore v. Regan in a short span of 8 days, Rehnquist elevated Jackson’s concurrence to the effect holding of the case (and modified it along the way). And guess who was clerking for Justice Rehnquist in 1981 when Dames & Moore was decided.

Roberts-Rehnquist

A young pup names John G. Roberts (first from the right), who would go on to replace his boss as the Chief Justice of the United States.

On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.

Judge Roberts cited the decision last year in an opinion accepting the Bush administration’s position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.

Korematsu v. United States

This is a young Fred Korematsu.

young-korematsu

This is Fred Korematsu later in life.

korematsu1

This is an announcement the United States Government posted, ordering “all persons of Japanese ancestry” to be rounded up.

letter

It says:

Pursuant to the provisions of Civilian Exclusion Order No. 33, this Headquarters, dated May 3, 1942, all per- sons of Japanese ancestry, both alien and non-alien, will be evacuated from the above area by 12 o’clock noon, P. W . T., Saturday, May 9, 1942.

No Japanese person living in the above area will be permitted to change residence after 12 o’clock noon, P.W.T., Sunday, May 3, 1942, without obtaining special permission from the representative of the Commanding General

The Civil Control Station is equipped to assist the Japanese Population affected by this evacuation in the following ways:

  1. Give advice and instructions on the evacuation.
  2. Provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of

property, such as real estate, business and professional equipment, household goods, boats, automobiles and livestock.

  1. Provide temporary residence elsewhere for all Japanese in family groups.
  2. Transport persons and a limited amount of clothing and equipment to their new residence.

 

Here is a piece of U.S. Government propaganda explaining the “relocation” and do the “job as a democracy should. With consideration.”

Fast-forward to 12:30 when the narrator says there are no constitutional problems with the internment.

Here is a map of the “relocation centers” and camps.

Map_of_World_War_II_Japanese_American_internment_campsThe San Francisco Examiner announces the “Ouster of all Japs in California near.”

JapaneseRelocationNewspapers1942

This is a so-called “temporary camp” or “assembly center” that were set up in public places, like fairgrounds, before the Japanese-Americans could be transported to the “Detention centers” dubbed “Relocation Centers.”

temporary-camps

This is the Topaz Internment Center in Utah, where Fred Korematsu was sent.

topaz-internment-utah

Here are Americans locked up in internment camps.

korematsu-lockedup

Another photographed of interned Americans.

Japanese_American_Internment_Center

Here are Americans being rounded up on busses to the middle of the Utah desert.

camp-bus

Here is Eleanor Roosevelt at an internment camp.

768px-Eleanor_Roosevelt_at_Gila_River,_Arizona_at_Japanese,American_Internment_Center_-_NARA_-_197094

This great picture contains a meeting of Fred Korematsu, Minoru Yasui, and Gordon Hirabayashi, who also had companion cases before the Supreme Court.

korematsu-yorui-habayashi

And here is Fred Korematsu posing with Rosa Parks.

korematsu-rosa-parks

In 1990, Korematsu received a redress letter and a reparations check for his internment.

Korematsu-Fred Korematsu with redress & reparations letter and check 1990

President Clinton would Korematsu the Presidential Medal of Freedom in 1998.

Korematsu-Clinton

Korematsu passed away in 2005.

Gravestone_fred_korematsu

The lead plaintiff in a related case was Gordon Hirabayashi. In Hirabayashi, the Court upheld curfews directed towards Japanese Americans because the nation was at war with Japan.

hirabayashi

And this is Mutsuye Endo.

mitsuye-endo

 

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Feb 3, 2016

Cambridge University Press will Publish “Unraveled: Obamacare, Religious Liberty, & Executive Power”

I am honored to announce that Cambridge University Press will publish my next book, “Unraveled: Obamacare, Religious Liberty, & Executive Power.” If everything goes to plan, the book will be released in September 2016, right before the beginning of the October 2016 term, and before the next presidential election. Unraveled will pick up where Unprecedented left off–in January 2013, and tell the story of the ACA’s second Act. The book will be book-ended by Hobby Lobby, King v. Burwell, and Little Sisters of the Poor, but also chronicle Obama’s political intrigues since its inception. In many respects, Unraveled fills in a lot of the gaps from Unprecedented–events that didn’t seem relevant years ago, that became much more relevant in light of later events.

Here is the current table of contents–note that the last few chapters remain to be written in light of whatever the Court does in Little Sisters, and what happens with the Presidential primaries between now and July 5, 2016 (my final submission date for final chapters).  See if you can figure out what the chapters are about based on the title.

Part I: The Promise of Obamacare (1/20/09 – 6/28/12)

            Chapter 1: If you like your insurance, you can keep your insurance.

Chapter 2: Federal and state exchanges

Chapter 3: Life and Religious Liberty

Part II: Conscience and Contraception (6/29/12 – 5/1/13)

Chapter 4: The Contraception Mandate

Chapter 5: Election Slowdown

Chapter 6: Religious Liberty in the Courts

Part III: Shutdown (5/21/13 – 9/30/13)

Chapter 7: Exchanges “established by the state”

Chapter 8: Tea Party Summer

Chapter 9: Train Wreck

Chapter 10: Filibuster

Part IV: Obamacare Unravels (10/1/13 – 12/30/13)

Chapter 11: Lights Out

Chapter 12: Cancelled

Chapter 13: Regulation by blog post

Chapter 14: Crashing into the Deadline

Part V: Religious Liberty (12/31/13 – 7/21/14)

Chapter 15: New Year’s Resolution

Chapter 16: Substantial Burden

Chapter 17: Glitch

Chapter 18: Between two ferns

Chapter 19: Corporate Prayer

Chapter 20: Notorious RBG

Part VI: Nuclear Fallout (7/22/14 – 11/21/14)

Chapter 21: Circuit Split

Chapter 22: Dueling Petitions

Chapter 23: Sue the President

Part VII: Subsidizing Obamacare (11/22/14 – 6/26/15)

Chapter 24: Grubergate

Chapter 25: King v. Burwell

Chapter 26: Gridlock

Chapter 27: Unravel the fabric

Chapter 28: Improve, don’t Destroy

Part VIII: The Nuns (6/27/15 – 6/30/16)

Chapter 29-33: To be concluded.

 

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Feb 2, 2016

Prop1 Class 6 – Property in Yourself

Today we will discuss how you can own property in yourself.

The lecture notes are here.

Here is a recent article about the rights of publicity of college football players.

First, we’ll do the case of Vanna White v. Samsung Electronic America.

vanna v. samsung

The dissental was authored by Judge Kozinski, a colorable character on the 9th Circuit.

Alex_kozinski_080612

Here is the image of robot Vanna White. Alas neither of these predictions of the year 2012 came true (well played, Mayans).

1988-vanna-white-robot

Samsung had a series of ads displaying their products in the 21s century.

1988-Dec-Smithsonian-steak-samsung

To learn more about property rights in cell lines, I highly commend you read The Immortal Life of Henrietta Lacks. This article in Salon discusses it.

In 2013, the National Institute of Health reached an agreement to honor Lacks’s memory:

On Tuesday, the National Institute of Health announced it was, at long last, making good with Lacks’ family. Under a new agreement, Lack’s genome data will be accessible only to those who apply for and are granted permission. And two representatives of the Lacks family will serve on the NIH group responsible for reviewing biomedical researchers’ applications for controlled access to HeLa cells. Additionally, any researcher who uses that data will be asked to include an acknowledgement to the Lacks family in their publications.

The new understanding between the NIH and the Lacks family does not include any financial compensation for the family. The Lacks family hasn’t, and won’t, see a dime of the profits that came from the findings generated by HeLa cells. But this is a moral and ethical victory for a family long excluded from any acknowledgment and involvement in genetic research their matriarch made possible.

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Feb 2, 2016

ConLaw Class 6 – The Executive Power I – The Appointment and Removal Power

The lecture notes are here.

The Executive Power I – The Appointment and Removal Power

  • The Executive Power – Article II (296-297).
  • Notes (306-308).
  • The “Removal” Power (348-351).
  • Myers v. United States (351-366).
  • Humphrey’s Executor v. United States (366-370).
  • The Appointment Power (334-335).
  • National Labor Relations Board v. Noel Canning

This video from the HBO Miniseries John Adams aptly summarizes the debate in the first Senate about whether Congress could place limitations on the removal power. Note the Senators explain that Adams’s vote only matters in case of a tie. Indeed the vote tied 10-10, and Adams cast the tie breaking vote as President of the Senate.

The majority opinion Myers v. United States was authored by Chief Justice William Howard Taft, who had previously served as President of the United States (the only person to serve in both offices). Taft is in the first row in the middle. One dissent was authored by Justice Brandeis (first row, first on the right), who was the first Jewish Justice appointed to the bench. The other dissent was penned by Justice Oliver Wendell Holmes (first row, second from left). The other dissent was by Justice James McReynolds (first row, first from the left).

1925_U.S._Supreme_Court_Justices

This is Justice Taft, who had the second-nicest mustache on the Court.

taft

This is Justice Oliver Wendell Holmes, who had the nicest mustache on the Court.

holmes-2

This is Justice Louis Brandeis.

ibrandl001p1

Justice Joseph Story, who served on the Supreme Court from 1811-1845, published in 1833 his commentaries on the Constitution, that offered explanations for many constitutional questions.

story-commentary

This is Justice George Sutherland, one of the “Four Horsemen” who opposed President Roosevelt’s agenda, who authored Humphrey’s Executor v. United States.

sutherland

This is William E.Humphrey, who served as the commissioner of the FTC, and who was removed by President Roosevelt.

WilliamEHumphrey

This is the video of the Senate’s pro forma session on January 4, 2012. It begins at 1:30, and lasts roughly 30 seconds.


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Jan 31, 2016

Cruz on #SCOTUS: “I will be willing to spend whatever political capital is necessary.”

In Iowa, Ted Cruz offered extended remarks on how he would approach nominating Justices to the Supreme Court (via ThinkProgress):

We are one justice away from the Supreme Court concluding that nobody in this room and no American has an individual right to keep and bear arms. We are one justice away from the Supreme Court striking down school choice programs across this country. We are one justice away from the Supreme Court striking down every restriction on abortion, and mandating unlimited abortion on demand, up until the time of birth, partial birth, with taxpayer funding, and no parental notification whatsoever. We are one justice away from the Supreme Court ordering veterans memorials torn down all over this country if they contain any acknowledgement of God Almighty.

Now the simple reality is Democrats on this issue, bat almost a thousand. Almost every Justice they put on the Supreme Court votes exactly as they intend. Republicans, we bat about .500. About half of our nominees are faithful to the Constitution. The other half are disasters. Many of the most liberal justices in this country — Earl Warren, Bill Brennan, John Paul Stevens, David Souter, Harry Blackmun, the author of Roe v. Wade — all of those were Republican appointees. And the reason is simple. Over and over again we keep electing Republican presidents for whom the Court is not a priority. And when it comes to a nomination, they take the easy road out.

They don’t want to nominate a principled constitutionalist, because then you have a fight on your hands. So instead they nominate a stealth candidate. Someone with no paper trail. Someone who is easy to confirm. And every single time we do that, we get caught.

Now I have spent my entire adult life fighting judicial activism, fighting to defend the Constitution, fighting to defend the Bill of Rights. Unlike the very fine individuals on that debate stage, I will be willing to spend whatever political capital is necessary, and sir I give you my word, every Justice I put on that court will be a principled constitutionalist jurist with a proven record who will be faithful to the law and will not legislate from the bench.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I advise the Rand Paul campaign.

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