Erwin Chemerinsky made some waves at AALS where he proposed, in essence, that the Constitution requires that all private schools should be abolished (to the extent that they replace primary schooling–after-school programs could exist in Irwin’s world) and all students should be forced to attend public schools. This is the only way to abolish de facto educational segregation. He would argue that Milliken and Pierce v. Society of Sisters must be overruled. Marc DiGirolami and Rick Garnett have some comments on the religious liberty aspects of mandatory public education.
I have a few other constitutional objections.
Abolishing all public schools would be a massive taking, shutting down lawful businesses. As Rick and Mark point out, this would also be a broad infringement on religious liberties. I think someone commented that Orthodox Jewish students, who attend religious studies all day would have to leave the country. This would also represent an unprecedented infringement on state autonomy of how to manage something that historically has been within the provence of state governance. Even the Department of Education works through grants, not mandates (though what this means Post-NFIB’s is anyone’s guess).
And Erwin doesn’t just think these are good ideas. He thinks that the Constitution requires them–why else would the Supreme Court be able to overturn Pierce and Milliken but for a constitutional reason.
I know little about education policy, and do not wish to debate that issue. My focus is solely on Chemerinsky’s off-the-wall constitutional ideals on individual liberty.
You may also recall that Erwin Chemerinsky said that there would be absolutely nothing unconstitutional if the government forced people to purchase broccoli or GM cars.
Judge Vinson cited Chemerinsky’s views in his summary judgment opinion:
For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although “what people choose to eat well might be regarded as a personal liberty” (and thus unregulable), “Congress could use its commerce power to require people to buy cars.” See ReasonTV, Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful, August 25, 2010, available at: http://reason.tv/video/show/wheat-weed-and-obamacare-how-t. When I mentioned this to the defendants’ attorney at oral argument, he allowed for the possibility that “maybe Dean Chemerinsky is right.” See Tr. at 69. Therefore, the potential for this assertion of power has received at least some theoretical consideration and has not been ruled out as Constitutionally implausible.20
Rick describes Chemerinsky’s arguments as “illiberal.” I think that is putting it mildly.
A funny exchange form oral argument in Descamps v. United States (11-9540).
JUSTICE BREYER: You see why I turn back to the empirical question and keep wondering, why is it not possible to get, say, a law professor; they have spare time — get the sentencing committee, get someone to look and see what are the real behaviors that are convicted under section 459.
MR. HORWICH: I can -
JUSTICE SCALIA: And then advise defendants who — who anticipate committing these crimes, so that they will know which crimes carry another 30 years. (Laughter.)
JUSTICE BREYER: Well -
Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.
Well, there it was, and moreover, they had a very exalted idea of themselves at Harvard and so it had to be a pretty good article. And I didn’t know a thing about copyright—although that’s exactly the kind of thought I couldn’t dwell on, because it would lead to the temptation to give up.
. . . . One of the less pleasant days of my life was after I’d handed [Dean] Derek Bok my 200-page manuscript to give to the Appointments Committee. He came back and said, “You know, when you write something”—and I didn’t like the tone of his voice—“sometimes it’s worth going over it again before handing it in. Marshal your arguments,” he said, “and use the most interesting points, but do not put in all the less interesting ones.” And that was very good advice. So what ended up being published as The Uneasy Case for Copyright was the expurgated version of something that had all kinds of rambling in it.
Plenty of spare time.
Following up on Adam Liptak’s engaging Sidebar piece on the errors of death-row attorneys, you all may be interested to know that the 2 attorneys who botched the appeal in Maples v. Thomas turned out just fine.
Clara Ingen-Housz is Special Counsel at Baker & McKenzie in Hong Kong.
Clara Ingen-Housz is based in Baker & McKenzie’s Hong Kong office. She advises multinational companies on emerging antitrust regimes in Asia, particularly China, and Asian companies on global competition issues. Ms. Ingen-Housz has more than a decade of experience acting as counsel, policy advisor and litigator for companies and regulators in the United States, Europe and Asia. She previously served in prominent law firms in New York and was a member of the Competition team of the European Commission’s Legal Service in Brussels where she handled several landmark cases. She regularly writes on developments in competition law in Asia and speaks at client seminars and public conferences.
Jaasi J. Munanka is at Hogan Lovells, a Partner in Denver.
Jaasi Munanka’s practice focuses on complex commercial litigation, international law, and internal investigations. He represents U.S. and foreign clients in actions involving significant financial exposure, ranging from federal and state False Claims Act litigation to Alien Tort Statute actions to general commercial matters, including securities, computer software, breach of contract, regulatory, and corporate governance.
Prior to joining Hogan & Hartson, Jaasi was an attorney advisor for the Office of Intelligence Policy and Review at the U.S. Department of Justice. He also served as a law clerk for The Honorable Sidney H. Stein of the U.S. District Court for the Southern District of New York. After law school graduation, Jaasi worked as an associate for a major U.S. law firm. In addition, Jaasi has previous work experience in the field of electrical engineering with a focus on semiconductor devices.
I wonder if a SCOTUS-bench-slap will be added to their firm profiles.
Some seven months later, in the summer of 2002, both Munanka and Ingen-Housz left Sullivan & Cromwell. App. to Pet. for Cert. 258a. Munanka gained a clerkship with a federal judge; Ingen-Housz accepted a position withthe European Commission in Belgium. Ibid. Neither attorney told Maples of their departure from Sullivan &Cromwell or of their resulting inability to continue to represent him. In disregard of Alabama law, see Ala. Rule Crim. Proc. 6.2, Comment, neither attorney sought the trial court’s leave to withdraw, App. to Pet. for Cert. 223a.Compounding Munanka’s and Ingen-Housz’s inaction, noother Sullivan & Cromwell lawyer entered an appearance on Maples’ behalf, moved to substitute counsel, or otherwise notified the court of any change in Maples’ representation. Ibid.
Or this bench-slap to SulCrom’s homepage.
The unclear state of the record is perhaps not surprising, given Sullivan & Cromwell’s representation of Maples after the default. As amici for Maples explain, a significant conflict of interest arose for the firm once the crucial deadline passed. Brief for Legal Ethics Professors et al. as Amici Curiae 23–27. Following the default, the firm’s interest in avoiding damage to its own reputation was at odds with Maples’ strongest argument — i.e., that his attorneys had abandoned him, therefore he had cause to be relieved from the default. Yet Sullivan & Cromwell did not cede Maples’ representation to a new attorney, who could have made Maples’ abandonment argument plain to the Court of Appeals. Instead, the firm represented Maples through briefing and oral argument in the Eleventh Circuit, where they attempted to cast responsibility for the mishap on the clerk of the Alabama trial court. Given Sullivan & Cromwell’s conflict of interest, Maples’ federal habeas petition, prepared and submitted by the firm, is not persuasive evidence that Maples, prior to the default, ever “viewed himself” as represented by “the firm,” see post, at 4, rather than by his attorneys of record, Munanka and Ingen-Housz.
As Justice Alito notes in concurring:
Unlike other States, Alabama relies on attorneys who volunteer torepresent these prisoners pro bono, and we are told that most of these volunteers work for large, out-of-state firms. Id., at 4. Petitioner’s brief states that the Alabama systemhad “a direct bearing on the events giving rise . . . to the procedural default at issue,” id., at 3, but a similar combination of untoward events could have occurred if petitioner had been represented by Alabama attorneys who wereappointed by the court and paid for with state funds. The firm whose lawyers represented petitioner pro bono is one of the country’s most prestigious and expensive, and I have little doubt that the vast majority of criminal defendants would think that they had won the lottery if theywere given the opportunity to be represented by attorneys from such a firm. See id., at 9 (stating that it “seemed asthough Maples had won the lottery when two attorneysworking at an elite New York law firm . . . agreed to represent Maples pro bono”).
What occurred here was not a predictable consequence of the Alabama system but a veritable perfect storm ofmisfortune, a most unlikely combination of events that,without notice, effectively deprived petitioner of legal representation. Under these unique circumstances, I agree that petitioner’s procedural default is overcome.
General William Suter, the Clerk of the Supreme Court is retiring at the end of the term.
General Suter is a treasure at the Court. He is such a warm and dedicated person, and his commitment to his country and to the Court is unrivaled. I will always remember him standing tall (he has to be at least 6’6″) next to the Bench. When the Chief asked him to read the names of a Bar Admittee, his voice boomed throughout the Court.
During the last day of the October 2011 Term, following the announcement of the ACA case, the Chief noted that Suter reached his 50th anniversary of government service in September of 2012. When Robert noted that the Court will return on the first Monday in October, he said he expected Suter to be there at the “same time, same place.” Mark Walsh, who was in the Court at the time, noted that “The audience begins to applaud, apparently for Suter, not for the outcome in the opinions they have just heard. Applause is frowned upon during court sessions, but no one seems too concerned.”
I hope you get a bigger round of applause at the end of this term. You will be missed General Suter.
Here is an interview with General Suter from the 6th Circuit Appellate Blog.
12-275 NORDYKE, RUSSELL, ET AL. V. KING, MARY V., ET AL.
Before McDonald, Judge O’Scannlain found that the Second Amendment was incorporated to the states. It went up for cert alongside McDonald. After McDonald, it was remanded where it bounced around the 9th Circuit, even going for en banc review again. On appeal to SCOTUS again, the Court asked the government to file a response to the petition in October 2012. Now, we have a firm denial. The case is over.
Kudos to Don Kilmer, who has been litigating this case for years.
The ACA cases were argued from March 26-28, 2012. The Court will hear the two SSM cases on March 27-28, 2013.
This seem sto be a magic date for arguments.
Video: My Presentation of “Back to the Future of Originalism” at the 2013 Federalist Society Faculty Conference
Many thanks to Professor John McGinnis, who graciously moderated, in addition to my co-panelists Todd Henderson, David Moore, and Lee Strang. You can download a copy of my paper here. I am the first one up. We only had seven minutes, and I managed to finish in five–but then proceeded to use my remaining two minutes on other stuff I didn’t think I’d have time for 🙂
Could a treaty give Congress the power to enact a law that violates constitutionally protected liberties?
I really enjoyed the Federalist Society/American Society of International Law Debate between Nick Rosenkranz and Rick Pildes on whether “Congress’s Enumerated Powers Cannot be Increased by Treaty” (the video should be posted soon, hopefully).
I have been a fan for some time of Nick’s article, Executing the Treaty Power. Roughly, Nick argues that the dictum in Holmes’s Missouri v. Holland opinion–that the treaty power gives Congress additional powers to enact laws that would otherwise violate the 10th Amendment–is wrong.
However, before today, I had never heard the opposing point of view–Rick Pildes did a wonderful job sketching it out. Rick also had a great debate with Michael McConnell during the AALS ConLaw Section Breakfast on comparing Bush’s and Obama’s executive powers. Rick made a few points that were quite strong. Kudos to him for pulling double-duty on one day.
Rick brought up the example of the Treaty of Paris. This Treaty imposed many responsibilities on the United States, however the Articles of Confederation Congress lacked the power to pass the laws to comply with those obligations. The Constitution’s Treaty Power, enacted against that backdrop, empowered Congress to pass laws that were necessary and proper to comply with these international treaties. This makes sense.
Nick replied that the President should not be entering into treaties that Congress lacks the power to comply with. This also makes sense. (John McGinnis posed a good question about whether Nick’s view would place a limitation on the President’s ability to serve as the sole voice for foreign affairs).
These discussions were quite good, but one point interested me more–the relationship of Reid v. Covert to Nick’s article. Reid held, roughly, that Congress is not able to enact a law that violated a specific provision of the Bill of Rights (in this case the 5th and 6th Amendments).
Rick conceded that under Reid (which he suspected was probably not on strong footing [JB Update: Rick did not say that Reid was on shaky footing, but rather doubted whether the Court would extend Reid to very different situations, for example involving signing a treaty that would end a war, but that would require overriding certain rights]), Congress could not pass a law that, for example, would seize firearms (that would otherwise violate the 2nd Amendment) or prohibit publishing of certain dangerous materials (that would violate the First Amendment). Though Rick countered that under the war power, he said the Court would be hard-pressed to stop Congress from passing such laws in time of conflict. Rick said that Reid was one of Nick’s strongest points.
Rick made a big point to distinguish Reid, which concerned Congress passing laws that violates an individual liberty guaranteed in the Bill of Rights, and Holland, which concerned Congress passing laws that violated a structural protection in the Constitution (in the case of Holland, the 10th Amendment).
Indeed, the Reid Court, per Justice Black, made the same point:
There is nothing in Missouri v. Holland, 252 U.S. 416, which is contrary to the position taken here. There, the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment, which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government, and the Tenth Amendment is no barrier.
That section cited United States v. Darby, which provided the classic bit that the 10th Amendment is nothing but a truism.
Our conclusion is unaffected by the Tenth Amendment. which provides:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the [p124] States, are reserved to the States respectively, or to the people.
The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.
This argument reflects the understanding that there is a fundamental difference between provisions of the Bill of Rights (and I would throw in the Reconstruction Amendments) and the structural protections of the Constitution (10th Amendment, Separation of Powers, Federalism). Indeed, most con law classes are divided up between structure and rights.
But this isn’t quite right.
Recently, the Supreme Court emphatically rejected that distinction in Bond v. United States (which was 9-0). Perhaps fittingly, Bond was the very case that teed up the issue of the scope of the treaty power. Justice Kennedy, writing for the unanimous Court, was quite clear that the structural protections of the Constitution are essential to securing individual liberty:
Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.
Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.
The structural principles secured by the separation of powers protect the individual as well.
Justice Kennedy also articulated that position in his dissent in NFIB, as read from the bench.
This case presents real questions regarding the structure of the Constitution.
Some may think a case concerning constitutional structure with issues concerning checks and balances, separation of powers and federalism is somehow have lesser importance or priority in a case concerning liberties guaranteed in the Bill of Rights or the Civil War Amendments, but structure means liberty. [JB: As read, Justice Kennedy said the word structure, paused for emphasis, means, paused for emphasis, and liberty, pause for emphasis].”
Structure means liberty.
Even Chief Justice Roberts’s handdown in NFIB acknowledged this point.
The limits on government power foremost in many American’s minds are likely to be affirmative restrictions such as contained in the Bill of Rights. These are affirmative restrictions come into play however only where the government possesses authority to act in the first place. And in our federal system, the national government possess only those limited powers the constitution assigns to it.
If no constitutional power authorizes Congress to pass a certain law, that law may not be enacted even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the constitution.
The corpus of our liberty, as understood by the Supreme Court, is not limited to the provisions in the Bill of RIghts. “Structure means liberty.” At the AALS convention, after I told a professor I will be teaching constitutional law, she asked me if I was going to teach structure or rights–I was tempted to ask rhetorically, “what’s the difference?”, but I decided not to.
For those doubting how this plays with the 10th Amendment, Kennedy’s opinion in Bond specifically addressed Darby.
In this case, however, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government. Whether theTenth Amendment is regarded as simply a “ ‘truism,’ ” New York , supra , at 156 (quoting United States v. Darby , 312 U. S. 100, 124 (1941) ), or whether it has independent force of its own, the result here is the same.
The mere fact that a structural provision is at issue–for example the 10th Amendment, or I would add, the doctrine of enumerated powers (the key issue in NFIB)–does not eliminate the liberty interest at stake.
So which way does this cut? If the principles of Reid are correct, and individual liberty guarantees cannot be infringed by the treaty power, then why should our liberties protected by Federalism be subjected to lesser scrutiny? Does the Missouri v. Holland dictum survive Reid, as amended by the New Federalism?
The holding of Reid v. Covert read in light of the shift from the now-obsolete view of the 10th Amendment to our New Federalism, would seem to subvert, rather than support Missouri v. Holand (Covert subverts!).
Even if Holland was correct when decided, perhaps recent federalism developments have abrogated it.
Coincidentally, the treaty power issue in Bond is currently pending cert before the Court on remand from the 3rd Circuit (see my earlierblogging here). Nick mentioned that the case has been relisted five times, which is a good sign.
How would Justice Kennedy consider this issue, if teed up in Bond II, in light of Bond I and Reid v. Covert?
If the Court grants cert on this issue, I may write on this further.
While writing my book about the challenge to the Affordable Care Act case, I had the joy of reading through all of the briefs at the Supreme Court, as well as all of the transcripts from oral arguments. I have some interesting reflections, many of which I’ll save for the book (preview: the argument the Chief Justice adopted was right there, under our noses), but in this post, I will comment on a peculiar, but effective trait of Paul Clement’s advocacy.
Whenever he is asked a tough question that requires a lengthy answer, he always says there are two possible answers/problems/issues/etc. Always two. He frequently begins this statement with “Well” followed by the Justices’ name.
From the mandate arguments:
- Well, Justice [Sotomayor], I think there’s two points to make on that.
- MR. CLEMENT: Well, I don’t know, Justice Kennedy, but, if it is, I think there’s at least two problems with it.
- I think the Framers would have identified the difference between those two scenarios, and I don’t think that the great Chief Justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.
- And that gets at the idea that there’s two kinds of cost shifting that are going on here.
- MR. CLEMENT: Well, the other two principles are Lopez . . . .
- I’d like to say two very brief things about the taxing power, if I could.
From the Medicaid arguments:
- The constitutionality of the Act’s massive expansion of Medicaid depends on the answer to two related questions.
- No, Justice Ginsburg, this is distinct in two different directions.
- It says it — there’s two places where it says it.
- Well, Justice Ginsburg, there’s two reasons that might be different.
From the severability arguments:
- Well, two responses, Justice Scalia
- MR. CLEMENT: But, Justice Kagan, I mean, I actually think Booker supports our point as well, because there are two aspects of the remedial holding of Booker.
- MR. CLEMENT: Well, Justice Ginsburg, two kinds of responses to that
The “well” + Justice name seems to be a frame Clement uses to launch into his rule of two. It is likely so automatic that Clement can use those precious seconds to formulate his devastating bimodal reply.
Even the Solicitor General got in on the rule of two:
- GENERAL VERRILLI: So, two things about that, Justice Kennedy.
- GENERAL VERRILLI: Yes, for two reasons.
- GENERAL VERRILLI: We got two [limiting principles] and they’re — they’re different. Let me state them.
- GENERAL VERRILLI: And that — and I think in terms of the tax power, I think it’s useful to separate this into two questions.
- GENERAL VERRILLI: Well, Justice Scalia, what the — two things about that.
As did Mike Carvin:
- MR. CARVIN: I’d — I’d like to address that in two ways, if I could, Mr. Chief Justice.
- MR. CARVIn. Two points, one of which Mr. Clement’s already made . . . .
Though, there were (gasp) three things that made the statute unique, as illustrated by this funny colloquy with Justice Scalia:
MR. CLEMENT: The answer is no, and that’s because we’re here saying there are three things that make this statute unique.
JUSTICE SCALIA: What are your second and third? I’m on pins and needles to hear your second (Laughter.)
MR. CLEMENT: Yes, exactly. Well, one is the sheer size. Two is the fact that this statute uniquely is tied to an individual mandate which is decidedly nonvoluntary. And three is the fact that they’ve leveraged the prior participation 23 in the program,
Note to all advocates. Always offer two reasons.
Walt Disney World is offering an RFID-equipped bracelet that will let guests enter rides, pay for stuff, and check into their hotels. And of course, Disney can track EVERYTHING a person does. What could go wrong?
The company already collects data to use in future sales campaigns, but parts of MyMagic+ will allow Disney for the first time to track guest behavior in minute detail.
Did you buy a balloon? What attractions did you ride and when? Did you shake Goofy’s hand, but snub Snow White? If you fully use MyMagic+, databases will be watching, allowing Disney to refine its offerings and customize its marketing messages.
Disney is aware of potential privacy concerns, especially regarding children. The plan, which comes as the federal government is trying to strengthen online privacy protections, could be troublesome for a company that some consumers worry is already too controlling.
Privacy concerns. Ya think?
In contrast, MyMagic+ will allow users of a new Web site and app — called My Disney Experience — to preselect three FastPasses before they leave home for rides or V.I.P. seating for parades, fireworks and character meet-and-greets. Orlando-bound guests can also preregister for RFID bracelets. These so-called MagicBands will function as room key, park ticket, FastPass and credit card.
MagicBands can also be encoded with all sorts of personal details, allowing for more personalized interaction with Disney employees. Before, the employee playing Cinderella could say hello only in a general way. Now — if parents opt in — hidden sensors will read MagicBand data, providing information needed for a personalized greeting: “Hi, Angie,” the character might say without prompting. “I understand it’s your birthday.”
Read that last part again. That is borderline disturbing.
The data will also be used to make waiting areas for rides (“scene ones” in Disney parlance) less of a drag. A new Magic Kingdom ride called Under the Sea, for instance, features a robotic version of Scuttle the sea gull from “The Little Mermaid” that will be able to chitchat with MagicBand wearers.
“We want to take experiences that are more passive and make them as interactive as possible — moving from, ‘Cool, look at that talking bird,’ to ‘Wow, amazing, that bird is talking directly to me,’ ” said Bruce Vaughn, chief creative executive for Walt Disney Imagineering.
Guests will not be forced to use the MagicBand system, and people who do try it will decide how much information to share. An online options menu, for instance, will offer various controls: Do you want park employees to know your name? Do you want Disney to send you special offers when you get home? What about during your stay?
Who needs friends when you got robots!