Jan 29, 2015

Netanyahu and Zivotofsky

In addition to the constitutionality of the Speaker of the House inviting the Prime Minister of Israel to speak to the Congress, I can think of at least one other constitutional angle to the current foreign policy imbroglio–Zivotofsky v. Kerry.

This pending case is, in a sense, a microcosm of the feud going on between Congress and the President. Congress passed a law concerning the passports of American citizens who were born in Israel, because Congress did not approve of the foreign policy of the country. The previous President (who signed this law, ahem), argued that the statute violates the Separation of Powers. The current President contends further that a Supreme Court decision invalidating the law could frustrate the United States’s foreign policy interests.  Foreign countries may become confused about how the United States views Israel. These points were made clearly by the Solicitor General during oral arguments.

It’s often hard to predict how current events can impact pending SCOTUS cases, but as this dispute heats up, I can see the Justices more likely to heed SG Verrilli’s admonition to stay out. It’s possible that the speech, and any resulting events, could sway the Justices to avoid getting entangled in this thicket. FantasySCOTUS tracks the daily predictions for the case. Let’s see if there is any motion.

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Jan 28, 2015

Why is the House of Representatives Going to Sue The President Over Immigration When State Lawsuit On Cusp of Preliminary Injunction?

Let’s put aside standing for the moment. Why would the House of Representatives bother suing over the President’s action on immigration when a federal district court is likely (in my estimation) going to issue a preliminary injunction in the next two weeks. This case will be quickly appealed to the 5th Circuit, and very likely be decided by the Supreme Court before July. By the time the House takes a vote to authorize the suit, and prepares the complaint, the case will already be halfway to the Supreme Court! Disregarding any political advantages, strategically, this is a bad move because it distracts from the states, who (I argue) do have standing.

The House should sit this one out. They can file an amicus in the Circuit and Supreme Court, and move for divided argument time at the Supreme Court. They very well may get that. This gets them around the entire standing burden, and they can make their case.

Disclosure: I joined a brief in support of the states in Texas v. United States.

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Jan 28, 2015

The King v. Burwell Game of Chicken

I’ve written at some length about what happens the day after the Court invalidates the subsidies to states that have not established exchanges (see here, here, here, here, hereherehere, here, and here). As we inch closer to June, this clash between the President and Congress is shaping up to be a game of chicken.

Senator Barrasso (R-Wyo), whom Philip Klein refers to as the “Paul Revere” of King v. Burwell, lays out the stakes.

“The King decision is going to force the president’s hand to sign legislation and it’s going to give us an opportunity to work on ways of trying to eliminate some of the most damaging parts of the healthcare law,” Barrasso said.

Barrasso expects the President to push a one-page, technical fix that does nothing else, while Republicans will want to repeal mandates:

Obama would likely push Republicans to pass a simple technical “fix” that would change the language of the statute to allow for subsidies to be used toward purchasing coverage on the federal exchange. …

Instead, Barrasso said Republicans are likely to demand that Obama agree to make changes to Obamacare that would eliminate objectionable features of the law, such as the individual mandate, in exchange for a temporary restoration of the subsidies.

“This president is going to try to force Republicans to pass a one-page fix that says, make all that he has done illegal, and make it legal with a one-page bill,” Barrasso said. “I don’t see Republicans doing that. I think if he does want to continue subsidies for some period of time — which will be a limited period of time — that he’s going to have to agree to make some significant, what he would consider concessions, that I would consider differently. I’d consider as removing more damaging parts of the healthcare law. And that would be eliminating the mandates, giving more freedom and flexibility to those 37 states who haven’t set up their own exchanges.”

Barrasso suggests any compromise offers temporary relief so subsidies would not be cut off:

“We are working on a transition plan from what the President’s health care law is now, that does provide for those people who are getting subsidies and would possibly be abruptly cut off, as we transition to a more market-based health care plan,” he said.

Barrasso expects the President to try to force the states to act, or act alone.

If Obama can’t come to an agreement with Congress after a ruling, Barrasso said he’d probably take his case to the states, or try some sort of executive or administrative action.

“I think he’s also going to try to either influence or intimidate and browbeat governors, and bully governors, in those 37 states, to set up state exchanges,” Barrasso said. “But he may try to go around the law again another way by redefining state exchanges to say these all qualify, when in fact they don’t qualify. A reading of the law is very clear. Subsidies through state exchanges were supposed to be there for people. But if a state chose not to set up a state exchange, people from those states were not supposed to get subsidies.”

 

First, the states will not, and in many cases, cannot act to create exchanges over the summer. Even if a state was so inclined to create exchanges, there’s no way the states can pull together all of the resources, and meet all of the statutory requirements necessary before September, which is when the subsidies stop flowing. Some states may, as Nick Bagley suggested, designate a non-profit to serve as the administrator for their exchange, and in turn that non-profit can contract with the federal government. But a number of these states do not have full-time legislatures. Odds are, unless governors call for emergency sessions, the states would not even be able to act quickly enough to accomplish this.

Although, the President could issue some executive order workaround that would ignore King v. Burwell, but take another 2 years to litigate. This process could go on indefinitely. Maybe ask the Court to rehear King v. Burwell if the President flouts it? That could be interesting.

If the Senate doesn’t pass a clean bill, or the President vetoes a bill that repeals mandates, then subsidies are cut off in September.  So who blinks first?

Barrasso expects the President to call their bluff.

“As the president said to me in the White House [earlier this month], he said, ‘There are five million people [who receive subsidies through the federal exchange] — and I know who they are.’ He spoke like a community organizer who was going to try to use those people that he has actually caused significant damage to by not applying the law,” Barrasso said from his senate office.

Disclosure: I filed a brief on behalf of the petitioners in King v. Burwell.

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Jan 28, 2015

Does the Rules Enabling Act violate the Non-Delegation Doctrine?

The Non-Delegation doctrine is aimed at preventing one branch (Congress) from delegating the legislative power to another branch (President). But what about the Judicial branch? We know from Article II, Section II that Congress can “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law.” So the Constitution envisaged some delegation, with Congress’s permission, of the power to appoint inferior officers. What about Congress delegating the legislative power to the courts?

Under the 1934 Rules Enabling Act (now codified at 28 U.S.C 2072), the Supreme Court “shall have the power to prescribe general rules of practice.” The statute stresses that “Such rules shall not abridge, enlarge or modify any substantive right.” After the Court proposes the rules, Congress can “enact[] legislation to reject, modify, or defer the pending rules,” but if it fails to do so, the rules go into effect. For all intents and purposes, the rules of procedure have the binding effect of law, even if they are not so labeled.

Is this delegation constitutional? In 1941, Justice Roberts in Sibbach v. Wilson Co. breezily approved of this delegation.

Congress has undoubted power to regulate the practice and procedure of federal courts,[6] and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States;[7]

[6] Wayman v. Southard, 10 Wheat. 1, 21; Bank of the United States v. Halstead, 10 Wheat. 51, 53;Beers v. Haughton, 9 Pet. 329, 359, 361.

[7] Wayman v. Southard, supra, 42; Bank of the United States v. Halstead, supra, 61; Beers v.Haughton, supra, 359.

None of these three cases supports the broad proposition that upholds the Rules Enabling Act.

Wayman is an 1825 C.J. Marshall decision that addressed the Process Act, which delegated to the courts the power to issue rules for service of process and the execution of judgments in federal courts.

But Congress has expressly enabled the Courts to regulate their practice, by other laws. The 17th section of the Judiciary Act of 1789, c. 20. enacts, “That all the said Courts shall have power” “to make and establish all necessary rules for the orderly conducting business in the said Courts, provided such rules are not repugnant to the laws of the United States;” and the 7th section of the act, “in addition to the act, entitled, an act to establish the judicial Courts of the United States,” (act of 1793, ch. 22. s. 7.) details more at large the powers conferred by the 17th section of the Judiciary Act. These sections give the Court full power over all matters of practice; and it is not reasonable to suppose that the Process Act was intended solely for the same object. The language is different; and the two sections last mentioned have no reference to State laws.

Here is Section 17 of the Judiciary Act of 1789:

SEC . 17. And be it further enacted, That all the said courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law; and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States.

Not to disappoint (he seldom does), Marshall even sketches out when this delegation would become unconstitutional.

It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. 43*43 But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. Without going farther for examples, we will take that, the legality of which the counsel for the defendants admit. The 17th section of the Judiciary Act, and the 7th section of the additional act, empower the Courts respectively to regulate their practice. It certainly will not be contended, that this might not be done by Congress. The Courts, for example, may make rules, directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended, that these things might not be done by the legislature, without the intervention of the Courts; yet it is not alleged that the power may not be conferred on the judicial department.

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details. To determine the character of the power given to the Courts by the Process Act, we must inquire into its extent. It is expressly extended to those forms and modes of proceeding in suits at common law, which were used in the State Courts in September, 1789, and were adopted by that act. What, then, was adopted?

The second case cited, Bank of the United States v. Halstead was decided the same year by Justice Thompson.

It is said, however, that this is the exercise of legislative power, which could not be delegated by Congress to the Courts of justice. But this objection cannot be sustained. There is no doubt that Congress might have legislated more specifically on the subject, and declared what property should be subject to executions from the Courts of the United States. But it does not follow, that because Congress might have done this, they necessarily must do it, and cannot commit the power to the Courts of justice. Congress might regulate the whole practice of the Courts, if it was deemed expedient so to do: but this power is vested in the Courts; and it never has occurred to any one that it was a delegation of legislative power. The power given to the Courts over their process is no more than authorizing them to regulate and direct the conduct of the Marshal, in the execution of the process. It relates, therefore, to the ministerial duty of the officer; and partakes no more of legislative power than that discretionary authority in trusted to every department of the government in a variety of cases. And, as is forcibly observed by the Court, in the case of Wayman v. Southard, the same objection arises to delegating this power to the state authorities, as there does to intrusting it to the Courts of the United States. It is as much a delegation of legislative power in the one case as in the other.

The third case cited, Beers v. Haughton is an 1835 decision by Justice Story, that reaffirm that “state laws have no operation, proprio vigore, upon the process or proceedings in the courts of the United States.”

In the next place, it is equally clear, that such state laws have no operation, proprio vigore, upon the process or proceedings in the courts of the United States; for the reasons so forcibly stated by Mr Justice Johnson, in delivering the final opinion of the court in Ogden v. Saunders, 12 Wheat. Rep. 213; and by Mr Chief Justice Marshall in delivering the opinion of the court in Wayman v. Southard, 10 Wheat. Rep. 1; and by Mr Justice Thompson in delivering the like opinion in the Bank of the United States v. Halstead, 10 Wheat. Rep. 51.

None of these precedents do nearly enough of the heavy lifting to justify how the Rule Enabling Act operates–the Court proposes rules which, unless Congress acts, carry the force of law. As an aside, it is an odd result that the Supreme Court summarily affirms their power to engage in legislative powers with little.

Putting aside Sibbach for a moment–in a question of pure academic interest–consider as a matter of first impression whether the Rules Enabling Act violates the Non-Delegation Doctrine? I have a few tentative thoughts.

First, Congress can, through statute, define the rules of procedure for the inferior tribunals it can ordain and establish. This is easily a “legislative power” granted  to the Congress. Second, if Congress fails to do so, a federal judge, relying on his inherent judicial powers, could set the rules of procedure for his own court, presumably against the backdrop of the common law, as a means to resolve a case or controversy. And different judges can agree to be so bound. So far so good.

But can Congress delegate to the Supreme Court the legislative power to define all of the rules of procedure for all federal courts. Martin Redish has argued that the Rules Enabling Act falls outside the case-or-controversy requirement:

“Thus, in promulgating the Rules for congressional approval, the Court is inherently intertwined in the legislative process. One could reasonably ask, what activity could represent a more striking departure from the traditional judicial function of case adjudication than the direct enactment of legislation?” (p. 317).

Note, this is entirely apart from Erie’s discussion of whether the rules are substantive or procedural–this focuses on whether the Courts should be involved at all as a matter of the separation of powers.

Beyond the case-or-controversy requirement, does the delegation of this legislative itself violate the separation of powers? Through a helpful 1999 article by Leslie Kelleher, I found a 1926 speech given by Sen. Thomas J. Walsh (Montana), a long-time chair of the Senate Judiciary Committee, and opponent of the federal rules. In addition to arguing that uniform rules were bad policy, he argued they were unconstitutional. His position, directly refuting points made by Roscoe Pound about rules promulgated by the King’s Bench, are premised on the non-delegation doctrine.

Here is the highlight:

But because the court of King’s Bench exercised this supervisory control over inferior courts is no reason for assuming that the Supreme Court of the United States, which has only such powers as are delegated to it by the Constitution of the United States, can do the same thing, unless it is a power necessarily implied from those granted . . . . Either the power to regulate the procedure in the inferior courts of the United States in inherent in the Supreme Court, in which case Congress has no control over it since it has legislative authority only, or it is legislative in its nature and therefore reposed in Congress which is powerless to delegate it to anyone.

walsh1 walsh2

This point seems quite strong. If we take the distinction between the legislative and judicial power seriously ,as did Chief Justice Marshall two centuries ago, the rules of procedure would most naturally be conceived of as some sort of inherent judicial power. But that is not what is happening. The Courts are actually proscribing rules that have the force of law, that must be approved of by Congress. This intermingling, per Reddish’s comments, seem extremely problematic.

Let’s revisit the current phrasing of the Rules Enabling Act.

The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals.

Is there much of an intelligible principle there about what kind of rules are to be prescribed for procedure and evidence? Other than the adjective “general,” I think the answer is no. In Wayman, CJ Marshall stressed:

The power given to the Court to vary the mode of proceeding in this particular, is a power to vary minor regulations, which are within the great outlines marked out by the legislature in directing the execution.

The FRCP, in no way, can be viewed as “minor regulations” within a “great outlines” from the Legislature. It is the opposite. It is a major regulation, with no meaningful outlines from Congress. For example, Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief,” is a substantive rule that will affect whether a claim survives 12(b)(6) or not. Iqbal and Twombly demonstrate this amply.

Consider this example: the Supreme Court promulgated FRCP Rule 8(a), and then asserted the power to define what that term means. In a way, the Rules Enabling Act permits something of a power grab, allowing the Court to aggrandize its own power to set the law and interpret what it means. That Congress willingly gave up this power to the Courts, as they often do to the Executive, is immaterial. As Justice Kennedy stressed in Clinton v. New York.

To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution’s structure requires a stability which transcends the convenience of the moment. The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

That applies to the courts too…

H/T My student Elliot K. who posed this question that I had never considered.

 

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Jan 27, 2015

Can Oklahoma refuse to issue marriage licenses to anyone?

A lot of ink has been spilled about the phrasing of the Questions Presented in the Same-Sex Marriage Cases. The first question asks “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” I think a necessary antecedent question is whether state is required to license marriage altogether. Marriage, understood in terms of a license, is in every sense a positive right. Unlike, say, Lawrence which protected the right to engage in sodomy, or Griswold, which protected the right of married couples to access contraceptive, the same-sex marriage cases are seeking that the state recognize unions with a license, and confer other positive benefits.

How is it, that the issuance of a piece of paper and certain entitlements could be a fundamental right? There is precedent to support this position–although I don’t think those cases carry such weight. Let’s start with Myer v. Nebraska (by everyone’s favorite Justice McReynolds) which lists the “right to marry” among other liberties protected by the 14th Amendment:

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Arguably, all of these rights are negative right–the liberty to be free from some sort of governmental restraint. Marriage, if we understand it to mean the granting of a government license, does not fit in with this list. Ejusdem generis. I had always understood McReynolds to use “to marry” as the right to cohabitation (certainly men and women, and perhaps even those of the same race). Marriage, as a positive right, does not fit in with the rest of the liberties McReynolds listed, except to the extent we are discussing a “common law” marriage.

Second, consider Skinner v. Oklahoma ex rel. Williamson. It discusses marriage in the context of procreation, in the absence of state infringement :

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches.

Here Justice Douglas–who was very familiar with marriage licenses, having received quite a few himself–wasn’t referring to a positive right of marriage, but a negative right that the government cannot restrain the liberty interest of families. Recall Skinner concerned mandatory sterilization of prisoners–one of the greatest possible infringements on liberty imaginable. Indeed, Douglas’s decision in Griswold tied the right to contraception to those already married (Roe discarded this limitation).

Third, consider Justice White’s concurring opinion in Griswold v. Connecticut. His understanding of Myer, Pierce, and Skinner was premised on a negative conception of liberty–the state cannot infringe on the intimacies of family life.

It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right “to marry, establish a home and bring up children,”Meyer v. Nebraska, 262 U.S. 390, 399, and “the liberty . . . to direct the upbringing and education of children,” Pierce v. Society of Sisters, 268 U.S. 510, 534-535, and that these are among “the basic civil rights of man.” Skinner v. Oklahoma, 316 U.S. 535, 541. These decisions affirm that there is a “realm of family life which the state cannot enter” without substantial justification. Prince v. Massachusetts, 321 U.S. 158, 166. Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.

The entire nature of these precedents was keeping government out of private relationships. But modern day cases want to bring the government into these relationships to officially recognize them. (Libertarians in particular should be more cognizant of this point).

Fourth, this brings us to Loving v. Virginia, which was primarily an equal protection case. Then, at the end, Chief Justice Warren added a two-paragraph long Part II focusing on whether a fundamental right was violated. Here is the section, in its entirety:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

When I teach this case, students are always confused about whether it is a due process inquiry or equal protection inquiry. Their confusion is justified, as Warren’s muddled opinion blurs the two beyond recognition.

First, the analysis effectively says because the ban on interracial marriage violates equal protection, it also violates due process. It speaks of “racial classifications,” “principles of equality,” and “invidious racial discriminations,” as the factors to suggest it deprives “citizens of liberty without due process of law.” If I had to guess, I suspect the Court added this as a throwaway to bolster the burgeoning due process jurisprudence from Griswold two years earlier–but this is mere speculation.

Second, the last sentence is not complete. The decision to cohabit with another “resides with the individual” for sure. This was the sort of right at issue in Myer or Skinner. This fits in with Justice White’s understanding of these precedents in Griswold. There was nothing in the law that prohibited the Lovings from living together. What they sought was not just to live together, but to have the state recognize that union with a marriage license. Or in other words, provide them with equal protection of the laws. Virginia would give marriage licenses to people of the same race, but not different races. This is indeed an invidious racial discrimination, that violates the equal protection clause. But nothing in the Court’s analysis explains why the marriage license itself–citations to Skinner are unhelpful–is a due process liberty interest, when it is separate and apart from negative rights like procreation and cohabitation.

In the past two years, numerous courts have dutifully cited Loving’s conclusion that a marriage license is a fundamental right regularly. Much of the criticism of these citations is that when the Court wrote Myer or Skinner or Loving, it meant that marriage was a union between a man and a woman. My criticism is different. Myer and Skinner discussed marriage in the negative context of procreation and raising a family–not as a positive right to petition the state for a marriage license. Loving added that gloss, without any analysis. Arguably Loving supports those citations, but Myer and Skinner do not.

None of this is to say that in June, the Court will decline to recognize marriage as a fundamental right. Perhaps due to evolving standards of decency, or modern conceptions of the dignity inherent in receiving state recognition of a union, there is a due process right to obtain a marriage license. But citations to Myer, Skinner, and even Loving need to add a modern-day gloss to carry the burden.

However, this gloss will raise serious complications if, after the Court finds a due process violation, states vote to give no one marriage licenses. If the phrasing of the Court’s first question presented is taken seriously, then a state cannot eliminate the licensure of marriage altogether, as that would violate the 14th Amendment. If this is a fundamental right, states would be required to hand out the licenses.

Oklahoma (the home of Skinner!) is proposing a bill that would prevent any state official, including judges or clerks, from performing marriage ceremonies. Further, the state would not issue any state-issued marriage licenses. Instead couples can file “marriage certificates” or “common law marriage certificates” with the clerk. Marriage would exist largely outside the state. This would seem to run afoul of the first question presented in the same-sex marriage cases. All the attendant benefits of marriage would remain, but the state would not be complicit in issuing any licenses to decide who is married.

Would such a law be constitutional? If indeed the Court holds that marriage is a fundamental right–not just that denying same-sex couples a license violates the equal protection clause–Oklahoma would be required to issue marriage licenses.

As I noted in an earlier post, this will be a much tougher opinion to write than people suspect. Circuit courts can gloss over these tough issues, but the Supreme Court cannot. They ducked the hard issues in Lawrence and Windsor. In the former, most stated had already eliminate sodomy statutes from the books, and those that had them on the books almost never enforced them. In the latter, invalidating the federal DOMA allowed the states to operate as they had before. But this case directly impacts laws that are feverishly contested in a majority of the states. I’ve been wrong about virtually every prediction I’ve made with the same-sex marriage cases, so I make no prediction, other than that the Court will surprise us.

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Jan 27, 2015

Easterbrook on “Weapons not Typically Possessed by Law-Abiding Citizens for Lawful Purposes” Under Heller

Among the many questions left unresolved by Heller, and ignored by the Court in the six years since, has been what weapons are or are not in the scope of the Second Amendment. Citing United States v. Miller, Justice Scalia sketched out what kinds of weapons would, and would not be covered. In short, those weapons “typically possessed by law-abiding citizens for lawful purposes” are protected.

We may as well consider at this point (for we will have to consider eventually) whattypes of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged inMiller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller‘s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U.S., at 179, 59 S.Ct. 816. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment  does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

The majority decision then lists a few types of guns that can be banned, including those that are “dangerous and unusual” and “M-16 rifles and the like.”

There is a circularity to the Court’s reasoning. If the government has banned a certain type of gun before Heller, it cannot be typically possessed–because they aren’t on sale–and thus is outside the scope of the Second Amendment. But if a gun was not banned before Heller, and it was typically possessed, it is within the scope of the Second Amendment. Thus it cannot now be banned.

Justice Breyer addresses that fact in his dissent:

According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so.  In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

Another reason why 3D-printed guns are such a hot topic.

 

Fully-automatic guns have been heavily regulated through taxes (not banned as you may think) since the 1939 National Firearms Act. There are very, very few in civilian possession today. Contrast that with the semi-automatic AR-15, which has long been legal, and is one of the most popular rifles sold. The former, under the Court’s reasoning would be out of the scope of the Second Amendment because it is not typically possessed. The latter (I would argue) is in the scope, because it is typically possessed.

During oral arguments in the 7th Circuit concerning Highland Park’s ban on so-called “assault weapons” and high-capacity magazines, Judge Easterbrook probed the depths of what weapons are, are not covered. Courthouse News has this summary:

    “The Supreme Court made it clear in Heller that law abiding people have a core constitutional right to keep commonly owned firearms in their homes.”
But U.S. Circuit Judge Frank Easterbrook cut him off abruptly: “What if somebody decides to possess a bazooka?”
“It’d fall into a longstanding prohibition,” Vogts replied.
“No, there’s no such prohibition; they were only invented recently. It was once perfectly legal to own automatic weapons like Tommy guns.”
“But that dates back 80 years ago.”
Easterbrook was not convinced. “Yes,” he said, “but the Second Amendment dates back to the 18th century. Why does that matter? I don’t see how you can say fully automatic weapons are okay to ban because some states banned them in the 1950s. How is it rational to distinguish a ban laid down 150 years after the Second Amendment from one laid down 200 years after?”
Vogts stuck to his position. “The firearms here are without question some of the most commonly used. One out of nine guns sold since the invention of AR-type rifles is an AR rifle.”

Easterbrook’s comments highlight the weakness of Heller’s reliance on Miller. Only those weapons that were not banned before Heller can realistically be in common sue after Heller. Later Easterbrook made this point quite clear:

Later, probably trying to curry favor with Easterbrook, he added: “You can’t have a bazooka.”
The move backfired. “Why not?” Easterbrook demanded.
“They’re not commonly owned,” Wilson said.
The judge chuckled: “They’re uncommon because they’re illegal. At the time of Heller, handguns were not common in D.C.”

This is the circularity of Heller.

Finally, Easterbrook said what is on all of our minds–why have the Justices not taken any cases!

  Easterbrook ended the day bemoaning the lack of a clear standard to decide the case. “We have no idea what ‘scrutiny’ means here. Any speculation about why the Justices declined to specify it?” he asked, before mentioning that the Supreme Court had declined certiorari on several such cases.
“I have no insight into their reasoning on that,” Vogts shrugged

Easterbrook is frustrated. Join the club.

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Jan 26, 2015

SupremeCourt.gov Upgrade – Mouseover of Slip Opinions Reveals Summary of #SCOTUS Case

The Supreme Court’s web site has a feature on its page listing slip opinions. If you hover your mouse over the name of the case, a box will pop up providing a one-sentence summary of the decision. I’ve never noticed this feature before, but all of the cases going back to 2009 seem to have this feature.

For example, this is what appears when you mouseover Holt v. Hobbs.

The Arkansas Department of Correction’s grooming policy, which generally prohibits inmates from growing beards, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) insofar as it prevents petitioner, a devout Muslim, from growing a ½-inch beard in accordance with his religious beliefs.

A slightly different statement appears in the syllabus:

The Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs.

While the syllabus, per United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337, is not part of the decision, I hope no one takes these short summaries to be part of the Court’s order.

In case you are curious, here is the HTML summary of NFIB v. Sebelius:

This suit challenging provisions of the Patient Protection and Affordable Care Act is not barred by the Anti-Injunction Act; the Affordable Care Act’s individual mandate—which requires persons who do not comply with the mandate to pay a “penalty” to the Federal Government—may be upheld as within Congress’s power under the Taxing Clause; the Medicaid Act’s severability clause applies to a Medicaid Act provision permitting the Secretary of Health and Human Services to withhold all federal Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program

Here is a screen shot.

scotus-title

This feature works on Windows, but not a Mac.

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Jan 26, 2015

Gridlock and Congressional Power

We live in an era of dysfunction. I’ve written at some length how the Executive has reacted to this gridlock through the expansion of his own executive power, or what David Pozen refers to as “self-help.” I’ve also addressed how courts react to this gridlock with respect to the judicial power. Rounding out this trilogy, is gridlock and congressional power–how the Congress attempt to expand its power when the President does not get along.

One of the most fascinating examples of the latter involves House Speaker John Boehner’s decision to invite Israeli PM Benjamin Netanyahu to address Congress without the approval of the President. I tend not to write about issues of foreign policy, unless there is a connection to domestic law. This is such a case. At the Originalism Blog, Mike Ramsey spells out with lucid details why this action is likely unconstitutional. David Bernstein largely agrees.

This conflict fits into the ongoing theme of gridlock. Politico reports that for some time, Boehner has been trying to secure the President’s permission to invite Netanyahu.

Soon after becoming House Speaker in 2011, Republican John Boehner started running the traps on inviting Israeli Prime Minister Benjamin Netanyahu to speak to a joint meeting of Congress.

But when Barry Jackson, then Boehner’s chief-of-staff, checked with President Barack Obama’s top advisers, Jackson said he was left waiting a month only to get no response.

Under normal circumstances, the President would likely approve of the Speaker wishing to invite the PM of an ally to address Congress. But we are not living in normal times. Politico suggests that this battle has become quite personal.

But the sequence of events does capture how much the normal courtesies between this White House and Congress have deteriorated — even in front of guests from another country.

“There appear to be no rules anymore. If you can do it, do it,” said Patrick Griffin, who recalls nothing quite like this even in the tempestuous times Griffin served as White House liaison between President Bill Clinton and Speaker Newt Gingrich (R-Ga.). Democratic Leader Nancy Pelosi (D-Calif.), herself a former speaker who oversaw similar joint meetings for foreign guests, said the management of the invitation was “inappropriate” and Boehner risks squandering his power in a fit of “hubris.”

But privately, Democrats admit too that this White House — as seen in the South Korea episode — is no innocent. And Jackson, who has served at both ends of Pennsylvania Avenue, said he is baffled that the administration should talk now about “protocol” after being so quick to exert its executive power to run over Congress.

“This is not the first time where they got cross-wise thinking the House was not an equal branch,” Jackson said. “When I heard about this, I shook my head.”

Here, Boehner seemed to be responding to the breakdown of what would normally be a routine matter for the house. In a well-functioning government, the President would approve the address by the Israeli PM. But, we don’t have that today, so Boehner bypassed POTUS. To Pozen’s theory, this could be viewed as a legitimate form of self-help. I don’t think this is valid, in the same way I don’t think the President can sidestep Congress. As Ramsey notes, here it is even worse as the President is the sole organ of foreign policy, and Congress has no constitutional imperative to host foreign leaders.

Relatedly, my friend Adam White queried on Twitter whether the courts can receive amici from foreign sovereigns. In light of the fact that the judicial power extends to matters involving public ministers, there would seem to be a very strong place for briefs from foreign governments. Also, courts would often have to apply the law of nations (under the ATS for example), so foreign nations would have something to say there. Interestingly, no foreign briefs were filed in Zivotofsky.

 

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Jan 25, 2015

Thoughts on the Government’s Opposition Brief in King v. Burwell

The United States recently filed its brief in King v. Burwell. In this post, I will highlight a few keys aspects of the argument, and analyze some of the new, or refined arguments the government made.

First, the government repeats at several points that the petitioner’s reading of the statute would wreak “havoc” on the law, and health insurance markets.

The denial of tax credits and the resulting loss of customers would thus have disastrous conse- quences for the insurance markets in the affected States, which would remain subject to the Act’s non- discrimination rules but without the safeguards Con- gress deemed essential to preventing death spirals.

“wholly apart from the havoc it would wreak on the Act’s structure and design” …

Accordingly, petitioners’ reading “would throw a debilitating wrench into the Act’s internal economic machinery.” Pet. App. 29a.

I expect the government to make this point much more forcefully during oral arguments.

Second, the government argues that its reading is consistent with principles of cooperative federalism.

Second, the availability of tax credits in every State is essential to the Act’s model of cooperative federal- ism. Petitioners’ reading would transform Congress’s promise of “State flexibility,” 42 U.S.C. 18041, into a threat that a State would suffer severe consequences unless it established its own Exchange. To accept petitioners’ account, moreover, the Court would have to accept that Congress adopted that scheme not in a provision giving States clear notice of the consequenc- es of their choice, but instead by hiding it in isolated phrases in the formula for calculating an individual’s tax credit. The Act should be interpreted to avoid the disrespect for State sovereignty inherent in petition- ers’ reading. …

Thus, like many other cooperative-federalism statutes, the Act permits state implementation of federal require- ments in the first instance, but directs the federal government to step into a State’s shoes if the State fails to act. …

The scheme peti- tioners posit bears no relation to the normal operation of cooperative-federalism programs. …

It would display considerable disrespect for state sovereignty for Congress to hide the ramifi- cations of a State’s election in subclauses setting forth the technical formula for calculating the amount of an eligible individual’s tax credit. …

And it would have been perverse for Senators concerned about federalism to insist on pressuring States to participate in the im- plementation of a federal statute.

Third, the government has fashioned something of a federalism canon argument–in short, we should presume that Congress did not intend to impose such a stark condition on states because that would not respect the states’s sovereign interests.

“Among the background principles of construction that [the Court’s] cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution.” Bond v. United States, 134 S. Ct. 2077, 2088 (2014). Those principles bear directly on the interpretive question in this case. Rather than assuming that Congress subjected States (with only the most ob- scure notice) to the onerous regime that would be required by petitioners’ interpretation of the Act, cf. NFIB v. Sebelius, 132 S. Ct. 2566, 2601-2602 (2012) (opinion of Roberts, C.J.); Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991); Pennhurst, 451 U.S. at 17, the Court should interpret the Act in a manner that advances the respect for state sovereignty reflected in its express promise of “State flexibility” and its coop- erative federalism design. …

In other words, giving the states a choice between establishing an exchange and crippling their health insurance markets would have violated principles of federalism, so Congress should not be understood to have made such a choice.

It is implausible that Congress would have risked the collapse of the statutory scheme in non-electing States—and the denial of affordable coverage to mil- lions of Americans—as a means to ensure that the Act’s express offer of “State flexibility” would never be accepted.

But what about the Medicaid expansion, you ask? As I, and others have argued, this is precisely how the Medicaid expansion works–force states to expand Medicaid or risk losing all funding. To this, the government replies that Medicaid is a conditional-spending program which imposes conditions on states. The tax credits are meant for individuals, not states.

With the Medicaid expansion, there was no fallback, and states that did not expand would lose ALL of their funding. This is why 7 Justices found the expansion unconstitutional.

The ACA followed that model in its provisions addressing Medicaid, a longstanding conditional- spending program. To provide coverage for low- income individuals—including those with incomes too low to qualify for tax credits—the Act provided that, as a condition of continued receipt of federal Medicaid funds, States were required to expand Medicaid eligi- bility substantially. Id. at 2581-2582. Congress ex- pected that every State would continue to participate in Medicaid, and it thus provided no alternative in the event that a State declined to do so. Id. at 2665 (Scal- ia, Kennedy, Thomas, & Alito, JJ., dissenting).

In contrast, the SG argues, Congress took a different approach for the tax credits.

Congress took an entirely different approach to Exchanges and tax credits. The Act does offer grants to provide “[a]ssistance to States” in establishing Exchanges. 42 U.S.C. 18031(a). But unlike those conditional grants, the “premium assistance” made available by Section 36B is a federal tax credit award- ed to individual federal taxpayers. The credits are also part of an integrated set of national reforms that apply whether or not a State elects to establish its own Exchange. Section 36B thus bears no resemblance to the conditional-spending programs on which petitioners rely.

Fourth, the governments calls the petitioner’s position that Congress intended to threaten states “baseless,” “strains credulity,” and “lacks credibility.”

Instead, they reverse-engineer a description of the Act’s design and history to fit their misreading of Section 36B. Petitioners insist that Congress intentionally threatened to impose a dysfunctional regime on the States in order to pres- sure them to establish Exchanges for themselves, and that Congress assumed that every State would com- ply. That notion is baseless. …

It strains credulity to insist, as petitioners must, that Congress limited tax credits to States that estab- lish Exchanges for themselves by including the modi- fier “established by the State under [Section 18031]” in two subclauses of Section 36B, yet omitted that purportedly crucial limiting language from all of the Act’s myriad other references to the credits and sub- sidies available on Exchanges. …

Petitioners’ rendering of the Act lacks credibility.

The SG describe this history as a “high-stakes game of chicken.”

But Congress did not adopt such a self-defeating scheme. Nor did it engage the States in the high- stakes game of chicken that petitioners posit.

In a footnote, they shoo away Jonathan Gruber and Timothy S. Jost.

Petitioners rely heavily (Br. 4-5, 42-43) on statements made by Jonathan Gruber, an economist, consultant, and supporter of the Act. But those statements were made two years after the Act was passed, and Gruber has clarified that they were taken out of con- text. Jonathan Gruber, Written Testimony Before the House Comm. on Oversight & Gov’t Reform 2 (Dec. 9, 2014). Petitioners also cite (Br. 41) an earlier academic paper noting that Congress could limit tax credits to States that set up Exchanges. Timothy S. Jost, Health Insurance Exchanges: Legal Issues 7 (2009). But there is no indication any Member of Congress saw that paper, and in any event the Act actually corresponds to a different option described in the same paper: It “invite[s] state participation in a federal program, and provide[s] a federal fallback program to administer exchanges in states that refuse[ ] to establish complying exchanges.” Ibid.

Finally, there is a throw-away reference to the rule of law. The government argues that it would violate the rule of law to invalidate the IRS Rule, as it fails to accord respect to the elected branches.

Petitioners invoke (Br. 17) “judicial fidelity to the rule of law and well-established interpretive princi- ples.” But it is petitioners, not the government, who seek to rewrite the Act. Determining the meaning of a statute duly enacted by Congress, particularly a statute as consequential as this one, by focusing on isolated phrases divorced from textual cross- references, definitions, and context—and with no regard for the statute’s structure and design—does not respect the rule of law. It subverts the rule of law by denying appropriate respect to the choices Con- gress has made in the exercise of its democratically accountable authority.

“Democratically accountable authority” is a code word for judicial restraint to the elected branches. In the brief I submitted along with the Cato Institute, we take a very different understanding of the rule of law–something Obamacare’s implementation does wanton (not wonton) violence to.

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Jan 23, 2015

RLUIPA and RFRA for Corporations After Holt v. Hobbs

In Holt v. Hobbs, the Court made abundantly clear that RFRA and RLUIPA should be treated exactly the same. Justice Alito referred to the laws as “sister statute[s]” designed to protect religious liberties beyond those protected by the First Amendment.

Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014) (slip op., at 4). …. Following our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. See Hobby Lobby, supra, at ___ – ___ (slip op., at 5–6).

The Court reaffirmed its holding in O Centro to that effect.

RLUIPA thus allows prisoners “to seek religious accommodations pursuant to the same standard as set forth in RFRA.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 436 (2006).

Throughout the opinion, there are numerous citations to Hobby Lobby, suggesting that the standards of the RFRA should apply to RLUIPA the latter.

This raises a question I addressed after Hobby Lobby was decided. Does RLUIPA protect the rights of corporations against land use decisions? As RBG explained in her dissent:

FN 12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute toRLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at 26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.

Justice Alito’s analysis, as applied to judicial review of land-use decisions, would provide for a very strong role for the courts:

The Department argues that its grooming policy repre- sents the least restrictive means of furthering a “‘broadly formulated interes[t],’” see Hobby Lobby, supra, at ___ (slip op., at 39) (quoting O Centro, 546 U. S., at 431), namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “‘more focused’” inquiry and “‘requires the Gov- ernment to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exer- cise of religion is being substantially burdened.’” Hobby Lobby, 573 U. S., at ___ (slip op., at 39) (quoting O Centro, supra, at 430–431 (quoting §2000bb–1(b))). RLUIPA requires us to “‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’” and “to look to the marginal interest in enforcing” the chal- lenged government action in that particular context. Hobby Lobby, supra, at ___ (slip op., at 39) (quoting O Centro, supra, at 431; alteration in original). …

RLUIPA, however, does not permit such unquestioning deference. RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” O Centro, supra, at 434. …

“The least-restrictive-means standard is exceptionally demanding,” and it requires the government to “sho[w] that it lacks other means of achieving its de- sired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, supra, at ___ (slip op., at 40). “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” United States v. Playboy Enter­ tainment Group, Inc., 529 U. S. 803, 815 (2000).

If all of the other material standards of RFRA control for purposes of RLUIPA, it is difficult to imagine why the Court’s holding concerning corporate rights would not also extend. Imagine if a zoning board denies Hobby Lobby a permit to build a store because they do not agree with their religious practices. Or if a city denies a variance to a photographer who seeks to build a new studio to photograph wedding portraits–but only opposite-sex marriages, due to her sincerely held religious beliefs. Or if Boston denies Chik-Fil-A a building license because the government does not agree with the corporation’s views on same-sex marriage (assuming this was actually the case, which it was not). You see where I’m going with this.

I’ll note that Justices Breyer and Kagan did not join RBG’s concurring opinion in Holt.

 

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Jan 23, 2015

Would New Jersey Ban on Adult Incest Be Constitutional?

One of the lingering questions teed up by Justice Scalia’s dissent in Lawrence v. Texas, and left unresolved, is whether the state has a compelling interest in banning adult incest, where all parties are of age and consent to the relationship. This question has come to the fore after a jarring report that a daughter is in a sexual relationship with her father (the mother does not know). The daughter acknowledges that they would not get legally married, but they seem intent on continuing to have sexual relations. And, the daughter indicated that she wants to move to New Jersey where adult incest is legal (it seems the Garden State forgot to pass that bill). In response, New Jersey legislatures want to pass a bill criminalizing adult incest.

The bill would make it illegal to marry or commit an act of sexual penetration with a blood relative, including half-siblings. Violators could face three to five years in prison and a fine of up to $15,000.

Angelini, a Republican from Monmouth County, said adult incestuous relationships “violate our acceptable moral standards” and often involve sexual abuse that is blurred by the “consensual” loophole.

Would such a bill be constitutional? Under Lawrence v. Texas and Windsor, I think the answer has to be no.

First, the father and daughter are both consenting adults who claim to love each other, and enjoy sexual relations with each other. Why should the state have any interest in their private lives. They aren’t even seeking any recognition of their relationship.

Second, as we learned in Windsor and its progeny, the state has no compelling interest in encouraging responsible procreation. That incestuous relationship may yield children with birth defects, under strict scrutiny, is not a sufficient reason to stop them from cohabitation. As the daughter points out in that article, the state allows people who carry dangerous recessive genes–such as Tay Sachs–to have sex and marry. Perhaps a blanket ban on incestuous relationships could serve as a prophylactic against passing on recessive genes. But if that were the case, testing the couples would seem far less invasive than criminalizing the ban. Although, the state would have no similar interest in banning same-sex incestuous relationships, because there is no possibility for offspring. The state’s strongest interest involves the risk of sexual abuse with incestuous relationships. But both parties are consenting adults, and are presumed competent to engage in many sexual relationships that may not be healthy. Criminalizing all aspects of sexual relationship between blood-relatives who consent would seem to be overbroad, under strict scrutiny, in the absence of compelling evidence that a blanket ban is justified.  Perhaps a background check for domestic violence must be performed before issuing such a license. (If you think this is absurd, let’s talk about licensing another constitutional right that appears right  below the First Amendment).

Third, we learned in Windsor that traditional notions of morality are grounded in animus, and do not provide a valid basis for infringing on personal relationships. The New Jersey legislator said as much: adult incestuous relationships “violate our acceptable moral standards.” That’s a per se violation of the principles of Romer.

Fourth, to the extent that we look abroad to international law to inform evolving standards of decency, experts in Switzerland and Germany have proposed decriminalizing adult incest. The German Ethics Counsel offered these thoughts:

But on Wednesday, the German Ethics Council recommended the section be repealed, arguing that the risk of disability in children is not enough to warrant the law and de-criminalising incest would not remove the huge social taboo around it.

The chairman of the council, Christiane Woopen, was among the 14 members voting in favour of repealing section 173, while nine people voted for the ban to continue and two abstained.

A statement released on Wednesday said: “Incest between siblings appears to be very rare in Western societies according to the available data but those affected describe how difficult their situation is in light of the threat of punishment.

“They feel their fundamental freedoms have been violated and are forced into secrecy or to deny their love.

“The Ethics Council has been told of cases where half-siblings did not grow up together and have only met in their adult lives.” …

“The majority of the German Ethics Council is of the opinion that it is not appropriate for a criminal law to preserve a social taboo,” it added.

“In the case of consensual incest among adult siblings, neither the fear of negative consequences for the family , nor the possibility of the birth of children from such incestuous relationships can justify a criminal prohibition.

“The fundamental right of adult siblings to sexual self-determination has more weight in such cases than the abstract protection of the family.

Although, the Germans only recommended eliminating the ban between siblings, not between parents and children. So maybe the daddy-daughter date is out of luck.

And if siblings are allowed to have sexual relationships, why shouldn’t they be able to receive a marriage license. Why should the government deny them a license if the couple asked for one? Granted, there is no social movement pushing for incestuous marriages, like there is for same-sex marriage. Further, to my knowledge, no other states are moving to eliminate bans on incest. So perhaps, in this sense, federalism counsels against uprooting incest laws.

If you couldn’t tell, this post was somewhat tongue in check. None of this is to suggest the Court should uphold the same-sex marriage ban. Rather, I write this to suggest that this is going to be a much harder opinion to write than people appreciate. There’s a big difference between a circuit court opinion which people will soon forget (even Judge Posner’s), and a Supreme Court decision that will affect all 50 states, invalidate dozens of state constitutional provisions, and live in perpetuity in the U.S. reports and case books. Whatever the majority opinion is will have to contend with these arguments. The Court ducked the question in Lawrence and Windsor, but if they reach the merits, they will have to explain why incest laws remain constitutional. Scalia’s dissent, at last, will have to be addressed.

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Jan 22, 2015

The Most Breyer Question Ever

From arguments in Texas Dept. of Housing and Community Affairs:

JUSTICE BREYER: Now, that’s a question. It didn’t sound like one, but it was one.

(Laughter.)

JUSTICE BREYER: So I’d like to hear what you say.

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Jan 22, 2015

Scalia and Sotomayor on Counting to Five

During oral arguments in Williams-Yulee v. Florida Bar, the attorney for the respondent favorably cited Buckley, McConnell, and Citizens United.

This did not sit well with Justice Sotomayor, who reminded the lawyer that those cases had dissents!

JUSTICE SOTOMAYOR: I ­­ I ­­ be careful with that line because there’s a number of Justices on the Court that dissented from that ­­

MR. RICHARD: I ­­–

JUSTICE SOTOMAYOR: — and Citizens United has brought that into question.

MR. RICHARD: I ­­ — I —  ­­

JUSTICE SOTOMAYOR: So assuming that’s not the argument, what’s the better response?

In the past, Justice Sotomayor has explained that when she is in dissent she “think[s] the majority [was] wrong.” Sotomayor also sparred with Alito over the value of stare decisis in Alleyne.

Justice Scalia shot back, and reminded the lawyer (and Sotomayor) that five votes a majority makes:

JUSTICE SCALIA: Well, you only need five votes, and there were five votes there.

(Laughter.)

The lawyer perhaps didn’t quite get Scalia’s comment, because he said he was trying to get Scalia’s vote “as well.”

JUSTICE SCALIA: Don’t be too intimidated.

MR. RICHARD: I’m getting to try to get your vote as well, Justice Scalia. I haven’t reached that point yet. But ­­ and I understand it’s a high mountain to climb, but ­­ but the point here that I’m trying to make is that this is an extremely minimal imposition of the candidate’s freedom of expression, if there’s any imposition at all.

I’m not a fan of lawyers mentioning that they are trying to get a specific Justice’s vote. I realize sometimes Justice will bait them–“tell me counselor, how I can rule in your favor”–but these kinds of gratuitous comments, and reference to a  “high mountain to climb” seem gauche.

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Jan 22, 2015

Justice Douglas on Public Purpose and Federal Eminent Domain in Youngstown

While teaching Youngstown today, I noticed something that I hadn’t seen before. In Justice Douglas’s concurring opinion, he explains that the federal government can condemn property for any “public purpose.” Not public use, as the 5th Amendment provides, but public purpose.

The power of the Federal Government to condemn property is well established. It can condemn for any public purpose; and I have no doubt but that condemnation of a plant, factory, or industry in order to promote industrial peace would be constitutional. But there is a duty to pay for all property taken by the Government. The command of the Fifth Amendment is that no “private property be taken for public use, without just compensa- tion.” That constitutional requirement has an important bearing on the present case.

Only two years later in Berman v. Parker, Justice Douglas wrote for the Court that the appropriate standard is one of public purpose, not public use.

It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.

The Kelo Court would go on to apply the public purpose standard, effectively writing the public use clause out of the Constitution. Douglas telegraphed his view on the eminent domain power, which the other Justices elided, in an emergency case.

As an aside today I asked my students whether Congress could have passed a statute seizing all of the steel mills under its federal eminent domain power. The Justices, Douglas in particular, seem to assume such a statute would be within Congres’s powers.

In light of Will Baude’s excellent article on the federal eminent domain power, I don’t know if the answer is clearly correct, to the extent that Congress has to rely on its necessary and proper powers. Seizing still mills nationwide–and their employees–for an indeterminate period of time may be for a public purpose, and probably for a public use, but I think it would amount to “a great substantive and independent power which cannot be implied as incidental to other powers or used as a means of executing them.” And if this is correct–that not even Congress could have seized the mills–than Truman most certainly lacked the power to do it. Even if we were in Zone 1 or 2, Congress could not have delegated this power to the President.

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Jan 22, 2015

Michael Greve on the Last Day of This Supreme Court Term

I think he sums it up quite well:

To “realist” minds King may have been actually decided with the cert grants in the gay marriage cases. The cases will come down on the same day at the end of the Term, and so the justices will split the difference that way: freedom for gays and lesbians and then Justice Kennedy will ride off to Colorado with Dagney I-am-IJ, or whatever.

 

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Jan 19, 2015

Faithfully Executing The Law

In my article, “The Constitutionality of DAPA Part II: Faithfully Executing the Law,” I provide an overview of the text and history of the Take Care clause, with an eye towards understanding what “faithfully” means. Specifically, I recount the evolution of the clause during the Constitutional Convention, with changes made to accentuate the duty of good faith. Here is an excerpt of the paper, with footnotes omitted (though I cite passim the works of Zachary Price, Robert Delahunty and John Yoo, Saikrishna Prakash, Randy Barnett, and others).

The Take Care clause draws from a rich pedigree of colonial-era Constitutions limiting state executives from suspending the law. The post-revolutionary Constitutions of New York,[1] Pennsylvania,[2] and Vermont[3] employed similar standards to define the role of the executive, all requiring some variant of “faithfully executed.” By 1787, six states “had constitutional clauses restricting the power to suspend or dispense with laws to the legislature”[4]—Delaware,[5] Maryland,[6] Massachusetts,[7] North Carolina,[8] New Hampshire,[9] and Virginia.[10]

During the Constitutional Convention, the President’s duty to execute the laws went through several evolutions. These changes highlight the importance of the duty of faithfulness to the framers. An early version of the Take Care clause appeared in the Virginia Plan on May 29, 1787. It vested the “National Executive” with the “general authority to execute the National laws.”[11] On June 1, James Madison “moved,” and “seconded by” James Wilson, the Convention adopted a version of the clause: the Executive was “with power to carry into execution the national laws.”[12] At this point, there were no qualifications for faithfulness. A proposal to give the President the power “to carry into execution the nationl. [sic] Laws” was agreed to unanimously on July 17.[13]

On July 26, this provision was sent to the Committee of Detail.[14] The Committee of Detail considered two different formulations. First, “[h]e shall take Care to the best of his Ability.”[15] Second, John Rutledge suggested an alternate: “[i]t shall be his duty to provide for the due & faithful exec[ution] of the Laws.”[16] The final version, reported out by the Committee on August 6, hewed closer to Rutledge’s proposal: “he shall take care that the laws of the United States be duly and faithfully executed.”[17] Elliot’s Debates recorded the same draft.[18] The Committee of Detail rejected a provision that would have been linked to the “best of” the President’s “ability,” which was ultimately adopted in the oath of office.[19]  Rather, the Committee focused on “due” and “faithful” execution.

The draft that was “referred to the Committee of Style and Arrangement”[20] on September 8 still included the phrase “duly.”[21] However, the final report of the Committee of Style dated September 12, phrased the “take care” clause in its final form, dropping the “duly.” It read, “shall take care that the laws be faithfully executed.”[22] There is no recorded account of why “duly” was dropped, and the focus was placed solely on “faithfully.”

The progression over the summer of 1787 speaks to the designs of the framers. The initial draft from the Virginia Plan imposed no qualifications—the President was simply to “execute the National laws.”[23] Full stop. The Committee of Detail considered proposals that would restrict the duty to either (a) “the best of his Ability” or (b) “the due & faithful exec[ution] of the Laws.”[24] The Committee chose the latter. Finally, the Committee of Style—staffed by Madison and Hamilton, 2/3 of Publius—narrowed the duty to focus only on “faithfully.” This account is confirmed by Alexander Hamilton’s Plan, which though “not formally before the Convention in any way,” was read on June 18 and proved to be influential.[25] His plan eliminated the phrase “duly” and only focused on “faithfully”—“He shall take care that the laws be faithfully executed.”[26] Hamilton echoed this phrasing in Federalist No. 77, where he wrote about the President “faithfully executing the laws.”[27]

What is the difference between “duly” and “faithfully”? Johnson’s Dictionary defines “due” as “that which any one has a right to demand in consequence of a compact.”[28] The omission of “duly” and focus on “faithfully” suggests a shift away from legal duties to one of faithfulness on the part of the President.

This construction was confirmed by the Oath Clause of Article II: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Again, the framers required the President to swear that he will “faithfully execute” those duties charged to him. However, unlike the “Take Care” clause, which is imposed without qualification, the Oath only binds the President “to the best of [his] Ability.” In this sense, the imperative to “preserve, protect and defend the Constitution of the United States,” though it must be “faithfully executed,” exists to a lesser degree—to the “best of my Ability.”[29] In contrast, the New York Constitution of 1777 provided that the governor is “to take care that the laws are faithfully executed to the best of his ability.”[30] Further, the “Take Care” clause did not include language such as “shall think proper,” as this optional language is used in the adjournment clause.[31] The duty looks to one of faith. This understanding was further confirmed in the ratification conventions.

At the Pennsylvania Ratification Convention, James Wilson—himself a member of the Constitutional Convention and a future Supreme Court Justice—explained the relationship between the President and Congress: “It is not meant here that the laws shall be a dead letter; it is meant, that they shall be carefully and duly considered, before they are enacted; and that then they shall be honestly and faithfully executed.”[32] Wilson equates the duty of “faithfulness” with that of “honesty.”[33] Ten days later, Wilson stressed that the “Take Care” clause was “another power of no small magnitude entrusted to this officer,” the President. [34]

During the North Carolina Ratification Convention, delegate Archibald Maclaine stressed the importance of the “Take Care” clause: “One of the best provisions contained in it is, that he shall commission all officers of the United States, and shall take care that the laws be faithfully executed. If the takes care to see the laws faithfully executed, it will be more than is done in any government on the continent, for I will venture to say that our government, and those of the other states, are, with respect to the execution of the laws, in many respects, mere cyphers.”[35]

The history of the Take Care clause reveals a focus execution based on faith and honesty. As Prakash explained, “If the officer performed his duties honestly, adequately, and within the boundaries of his statutory discretion, the presidential inquiry would end, for the President would have taken care that the laws were faithfully executed.”[36]

Dr. Samuel Johnson’s 1755 A General Dictionary of the English Language, defines “faithfully” as imposing a very precise standard: acting “[w]ith strict adherence to duty and allegiance,” “[w]ithout failure of performance; honestly; exactly,” and “[h]onestly; without fraud, trick or ambiguity.”[37] Noah Webster’s influential 1828 defines faithfully as “in a faithful manner; with good faith.”[38] The second definition imposes an even higher standard: “with strict adherence to allegiance and duty.” Webster even offers as an example with reference to the Constitution, “the treaty or contract was faithfully executed.” With this selection of “faithful,” the framers seem to have adopted a standard stretching back to the times of Herodotus[39] to Roman law[40] to Canon law[41], and was well known in the 17th[42] and 18th[43] century English common law of contracts[44]—one of “good faith.”[45] As Professor Price observes, “the term ‘faithfully,’ particularly in eighteenth-century usage, seems principally to suggest that the President must ensure execution of existing laws in good faith.”[46]

Delahunty and Yoo conclude that the Take Care clause is “naturally read as an instruction or command to the President to put the laws into effect, or at least to see that they are put into effect, ‘without failure’ and ‘exactly.’”[47] However, this duty is not so mechanical. As Price counters, “the very separation of legislative and executive functions implies that enforcing the laws may be a matter of judgment, a task of applying general laws appropriately—‘faithfully’—in particular factual circumstances.”[48] The good faith standard, as developed in the common law of contract, provides a framework to understand for the scope of this discretion.

Steven Burton’s canonical work on the common law duty to perform in good faith is consistent with how the text and history of the Take Care clause.[49] Burton sketches two views of failing to comply with a contract. First, a party may deviate from the terms of the contract, resulting in the “deprivation” of “anticipated benefits” based on a “legitimate” or “good faith” reason.  Here, there is no breach of contract, even though the contract was not strictly complied with. Second, however, “[t]he same act will be a breach of the contract if undertaken for an illegitimate (or bad faith) reason.” How should we distinguish between the former (lawful) and the latter (unlawful)? It is not enough to focus on the contractual duties owed to the promisee, and what “benefits [are] due” to him. Rather, to determine “good faith,” an inquiry must be made into the motivations of the promisor’s actions.

Burton explains, “Good faith performance, in turn, occurs when a party’s discretion is exercised for any purpose within the reasonable contemplation of the parties at the time of formation—to capture opportunities that were preserved upon entering the contract.” To put this in constitutional terms, we would ask whether the President is acting within the realm of possible discretion contemplated when Congress enacted a statute. If the answer is yes, the deviation from the law is in good faith, and is permissible. However, if the departure from the law is “used to recapture opportunities forgone upon contracting,” the action is not in good faith. As Randy Barnett explains, “According to Burton, when a contract allows one party some discretion in its performance, it is bad faith for that party to use that discretion to get out of the commitment to which he consented.”[50] To place this dynamic into constitutional terms, when the President relies on a claim of authority Congress withheld, as a means to bypass that statute, the action is in bad faith, and unlawful.

Under this theory, “[w]hat matters is the purpose or motive for the exercise of discretion.”[51] Good faith deviations that “honor the spirit” of the law or rely on “scarcity of enforcement resources” are valid motives for discretion. But the same action, “intended to evade the commitment,” is unlawful if premised on a “disagreement with the law being enforced.” It is not the case that “any deliberate deviation. . . is presumptively forbidden.”[52] Rather, the deviation must be done in bad faith, as an intentional means to bypass the legislature. The duty of the Take Care clause applies, “regardless of [the President’s] own administration’s view of its wisdom or policy.”[53]

Burton’s conclusion provides further insights into the Committee of Style’s decision to amend the Take Care clause. First, the Committee eliminated the reference to “duly.” Here, the framers moved away from focusing on what obligations the President owes to the Congress. Instead, they focused on “faithfully” alone. This inquiry directs attention to the President’s motivations, instead of the legal obligations to Congress in the abstract. The important qualification of “faithfully” vests the President with additional discretion, so long as he is acting with good faith.

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Jan 18, 2015

“Supreme Ambition” SCOTUS Short List

In David Lat’s charming and engaging new novel “Supreme Ambition,” (I strongly recommend it!), there is a vacancy on the Supreme Court. Several of the law clerks in the novel gossip about possible Republican nominations to fill the seat of the now-deceased Justice Scalia clone, “Justice Keegan.” All of these names are not-too-veiled references to actual Circuit Judges, who would be on any short-list in a future Republican administration.

From the 8th Circuit, Judge Steven M. Colloton:

“Well, among judges, Steve Collins of the Eighth Circuit is getting buzz,” I said. “People like that he’s from the midwest rather than the Acela corridor. Joan Biskupic and Tony Mauro think he has the edge.”

From the 6th Circuit, Judges Jeffrey Sutton and Raymond Kethledge, and from the 10th Circuit, Neal Gorsuch:

“He’s well regarded,” said Amit, “but young. The same goes for Jeff Stuart and Ray Kelton on the Sixth Circuit, and Neal Gosford on the Tenth Circuit. Brilliant former SCOTUS clerks who come from flyover country— coastal qualifications, heartland appeal. But they need more judicial experience. LaFount might want to save them for later— like when Hannah Greenberg’s seat opens up. At least that’s what Jan Crawford thinks, and she has very good sources in conservative circles.”

From the D.C. Circuit, Judges Janice Rogers Brown and Brett Kavanaugh,

“Her sources say Rashida Williams of the D.C. Circuit,” I said. “Currently on the most prestigious circuit court, previously on the California Supreme Court. Smart, African American, a woman …” “And unconfirmable,” Amit said. “I agree with Jeff Toobin: put a typewriter in front of her and she turns into a loose cannon. Hard-core libertarians support Williams because of all these speeches and articles of hers criticizing the New Deal, but there’s no way she gets past the Senate. If a D.C. Circuit judge gets it, Brent Kirkpatrick is most likely.”

From the 5th Circuit, Judge Edward Prado:

“How about that Latino judge in the Fifth Circuit?” asked James. “He’s on a lot of the shortlists.” “Ramon Guerrero,” Amit said . . . “And they have a lot of sway on judicial issues.” “The hard right might care if Guerrero were out, but he’s not,” Amit said. “His main problems are that he’s a little old and he has some random dissents and concurrences in his past— affirmative action, abortion— that could come back to haunt him.”

From the 9th Circuit, of course, the inestimable Judge Frank Polanksi, I mean Alex Kozinski (9th Circuit):

“What about Judge Polanski? Could he get it over our boss?” I asked. …. “He has some advantages,” Amit said. “He’s more brilliant than the judge. He has the Polanski Mafia working behind the scenes for him— they’re at the White House counsel’s office, and the Senate Judiciary Committee, and the Office of Legal Policy at the DOJ. But he has disadvantages too. Some people view him as less predictable than Stinson, less consistently conservative— occasionally he ‘libs out’ on some issue he gets a bee in his bonnet over. We know how unreliable he can be when it comes to en banc votes.” “Judge Polanski is conservative but principled,” I said. “He ‘libs out’ when he feels the law requires a liberal result.” “Presidents prefer predictable over principled in SCOTUS nominees,” said Amit. “And Polanski’s a white male, which doesn’t help.” “

As a partial spoiler, one of these fictional judges is appointed to the Supreme Court.

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Jan 17, 2015

Rand Paul’s Arc of Judicial Restraint and Activism

There are different ways to teach Constitutional Law. Some teach it by doctrine. First you cover all of the congressional powers, then you cover all the executive powers, then you move onto the 14th amendment, then you do the Bill of Rights, etc. Because I only have four hours to teach all of ConLaw, this is the only way to cover everything in a meaningful way.

An alternative, and in my mind better approach given more hours, is to teach constitutional law chronologically. (I once tried to rank the top 300 cases of all time by year, and did a lecture where I ran students through all of these cases in two hours). Start with the Marshall Court, work through the Taney Court leading up to the Civil War, handle the post-Civil War cases as the Court grapples with the 14th Amendment, go through the late 19th century as the industrial revolution classes with society, chart the rise of the Progressive era in the early 20th century as the state police power grew, discuss the cases leading up to, during, and after the New Deal, followed by the Warren Court’s focus against segregation, criminal procedure cases, as well as sexual autonomy, into the Burger Court’s ratcheting back of some of that, followed by the Federalism focus on the Rehnquist Court, leading into the Roberts Court. (Randy Barnett’s ConLaw textbook, among others, does this very well).

Moving chronologically allows you to trace certain arcs across the law–the Supreme Court’s cases are not rendered in isolation but as part of a story of our national history. I try to do this in my class, and test this by making one of my exam questions situated in the past, and asking the students how a Court at a given point in time, only with precedents that came before that year, would resolve the issue (for example, how would the New Deal Court handle Obamacare).

Tracing these arcs allows you to isolate and analyze an issue in very different contexts. A perfect example of this is the (to oversimplify) debate between activism and restraint. Generally speaking, people label a decision activist if they disagree with the ruling. But, when viewed across time, the dynamics are hard to pin down.

In a recent speech at the Heritage Foundation, Senator Rand Paul traced just such an arc. Much of the commentary about this speech has been based on a few sound bites about whether activism or restraint is a better judicial philosophy. But the importance of Paul’s speech wasn’t the label–“I’m a judicial activist”–but the perspective. This is something many legal scholars, let alone Senators, lack.

Paul’s speech explored the notions of judicial restraint and activism (or what I, and my friends at IJ would call “engagement”) through six cases: Plessy v. Ferguson, Lochner, Brown v. Board of Education, Griswold v. Connecticut, Roe v. Wade, and NFIB v. Sebelius. Paul explains that a common thread runs through each case:

If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise.

He traces this thinking back to the King of the Progressives, Holmes:

That comes from Oliver Wendell Holmes, the great Progressive when he dissents in the Lochner case. What does he say?

He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority. So if you are for judicial restraint, I guess then what happens when a legislature does bad things?

Plessy, and decisions upholding Jim Crow also cited majority rule:

But the question has to come also if you don’t have a better majority. If you have a Jim Crow majority in the south, does the court have a role in overturning something where a person’s individual rights are at stake? I think they do. I think it’s an important debate because ultimately ideas are important. … . I think the federal government was right to overturn state governments that were saying separate but equal is fine. Plessey v. Ferguson is a mistake. Plessy v. Ferguson is judicial restraint. So when we get to Brown I’m an activist.

The FDR Court employed restraint:

We move on a little bit later and we get into the New Deal. Here it is not state but the federal governments. They are passing all kinds of laws, assuming new powers that weren’t essentially in the Constitution. So you once against have an activist court in the beginning until FDR got his way, you have an activist conservative court who overturns federal laws one after another. And until finally a majority of the FDR appointees who say “oh no judicial restraint is the way to go.”

Same for Roberts in NFIB:

He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority . . . In that, basically Justice Roberts says it is not his role to replace the majority will. Some of you might say I’m still for judicial restraint. I don’t care about any of these cases. We just need a better majority. That is an argument.

But in cases where liberty prevailed, the Justices were activist.

We have a time line. We go back and start in 1905 with Lochner and go through the way through Obamacare. The question is, in each of the case who should conservatives be for is the question: restraint or activist. We go back to Lochner. In the Lochner case the question is whether state legislatures were becoming more progressive and they were restricting the right or the liberty of contract.

So what happened is you had an activist court in the Lochner case that rules 5-4 says states can’t interfere with the right to contract. So the question is whether you are for activism or restraint when it is with regard to state governments interfering with the liberty to contract.

Brown v. Board of Education, activism prevails.

Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.

Paul favorably cites Griswold, even though he respects states rights.

Then we go to the next one. What is the big bugaboo when we talk about activism versus restraint? It is Griswold [v. Connecticut]. And you- say why are we even having this discussion. Does any of this have anything to do with the politics or current events?

Does anyone remember George Stephanopoulos’s question in presidential debate last time. He asked them all about Griswold. A lot of people didn’t know what Griswold was about, probably. But it had to do with birth control. State government said you can’t sell birth control to women. So if you are a state’s rights person you say I guess hands off. If you believe in judicial restraint, you are like let the states do what they want. That is a state right. Or you might say well individuals have rights also and states can’t tread upon individual rights? And then you might say, well maybe I am for Griswold and I am for overturning the state says you can’t have birth control. And so there’s a question again—are you an activist or restraint.

(I should note that Paul was apparently reviewing Presidential debates. Take that for what it’s worth).

Paul also tackles Roe in something of a libertarian approach, short of saying it is a horribly wrong decision.

Some say Griswold led to Roe, I guess you’re for Roe also. But in Roe, you have a competition of rights, you have a competition of rights between a mother and a child. So it is a little different than just whether or not you are restricting someone’s liberty. Because I think there are two individuals involved. The other side would say there’s not. But I don’t think the Roe is as clear cut as far as restraint or activism.

However not all decisions should defer to the majority. Some courts should apply a presumption of liberty, rather than a presumption of constitutionality. For this Rand cites Randy:

If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise. Now there is a school of thought that thinks differently.

Randy Barnett writes about something of this. He talks about the presumption of liberty, that maybe we should start with the presumption of liberty.

I liken it to sort of saying well maybe we should be presumed innocent until found guilty. Maybe we should be presumed to be free until we are restricted.

[one person clapping ]

Yes, I’ve got one convert! Yes! My point is not to convert you from judicial restraint to judicial activism but to think about it. I think it is not as simple as we make it sound. We say we don’t want judges writing laws. I don’t want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty? Do I want them to presume liberty and put the burden on the government to prove constitutionality?

The presumption of liberty is not unrebuttable. But it puts a thumb on the scale of the individual, over that of the state.

Paul also effectively rebuts the caricature of libertarian theory–that we want no government, and states can do whatever they want. By citing my friend Timothy Sandefur’s excellent new book, Paul explains why John C. Calhoun did not fit in with the notion of courts acting to preserve liberty.

What is the position of judicial restraint? The position of judicial restraint says let the states do whatever they want? Is that the conservative position? I think it’s not my position. I think if the states do wrong, that we should overturn them. That there is a role for the Supreme Court to mete out justice. The 14th amendment gives the Supreme Court, it gives the federal government a role in saying the states can’t do certain things.

There is a book called the Conscience of the Constitution by Timothy Sandefur, which I think is a great book, because he talks about it if we were to say, well gosh if we just believe in states rights, federal government has no role in the states, well could you be basically in favor of what John Calhoun said. John Calhoun not only supported slavery, John Calhoun supported sort of a tyranny of a state government. He thought state government could do anything it wants. Is that the liberty position? Is that the conservative, limited government position that we believe so much in a small federal government that there is no role nationally to say to a state government they can’t say certain things.

Paul’s parting comments about the separation of powers ring very true. As Madison wrote in Federalist No. 51, Ambition must be made to check Ambition.

Another constitutional question we have is on the separation of powers and I think this is an equally important question. It is legislative question and possibly a judicial question as well. There is a Professor from Tufts who wrote recently and he said the separation — there is an equilibrium that is supposed to be there between the different powers, between the different branches, but we’re having a collapse of the separation of powers. We’re having a collapse of this equilibrium. Our Founding Fathers [James Madison in Federalist No. 51] talked about there being sort of an ambition that we would pit one ambition against another. An ambition for the legislature should be an ambition that is pitted against the ambition of the presidency. The hope was — and many times in our history this ambition was I think beyond party label.

However, Congress has failed to check the President, and has ceded far too much power to the Executive, especially when the President is of the same party as the majority in Congress.

Unfortunately I think now things are so partisan that if it is a Democrat president usurping authority all Democrats will support them. But if it is a Republican president usurping and taking on too much executive power, all Republicans will support him.

Instead of what our founding fathers intended was, that Congress would object to having its power taken away by the executive branch, and these ambitions would be pitted back and forth the ambitions, and those ambitions would push us forward towards more of an equilibrium.

Paul concludes that his goal is to prevent “too much power from gravitating to one person or body.”

And for me I think more important than belonging to one particular party or another is the ideas of the Constitution and how the whole goal of the Constitution was in limiting power and trying to not let too much power gravitate to one body or one person.

While I’m here in Washington, in the future as long as I’m here that will be my overriding goal is to try to limit power and to keep too much power from gravitating to one person or body. And I think this is above and beyond all partisan politics. And I will continue as long as I’m given that privilege. Thank you very much.

I couldn’t agree more. I hope he stays true to these words.

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Jan 16, 2015

Who broke the Same-Sex Marriage News?

First place goes to Pete Williams of NBC News, for tweeting the news at 3:30.

Second place, by a few seconds, at 3:31 goes to Kimberly Robinson of Bloomberg BNA.

Third place, a moment later was Greg Stohr of Bloomberg.

Initially I gave the victory to Kimberly, as Pete didn’t use the correct hashtag #SCOTUS, so his tweet got lost in my timeline. Kimberly gracious confessed that she wasn’t first. I think we all need to agree to use the #SCOTUS hashtag to break news.   first-place Bloomberg was the first to correctly announce the outcome of NFIB v. Sebelius. If I recall, Pete Williams (wisely) hedged for a few moments while he was on the air, as did Jan Crawford. Update: Honorable mention goes to Chris Geidner of Buzzfeed, who tweeted at 3:31 with a story link.

Update: Here is the second-by-second timeline for 3:31, with #SCOTUS (If you didn’t use that tag you are lost to history). (1) Kimberly Robinson, (2) Greg Stohr, (3) Sara Kopit, (4) Me retweeting Kimberly, (5) Michelle Olsen, (6) Brent Kendall, (7) Chris Geidner, (8) Freedom To Marry.

scotus-hash

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Jan 16, 2015

Predict Obergefell v. Hodges (A/K/A Same-Sex Marriage Cases) on FantasySCOTUS

By dint of first docket number, this case will–for the time being at least–be called as Obergefell v. Hodges. Make your predictions at FantasySCOTUS for question #1 (granting licenses) and question #2 (recognition of out-of-state marriages). Now, who gets to argue it? With 90 minutes on the first question, and 60 minutes on the second, there is more than enough time to go around. And when do we get the SG asking to intervene.

scotus-order

 

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