Procedural Due Process, Article IV Federalism, and the Treaty Power
- Matthews v. Eldridge (1456-1463).
- Article IV Federalism (741-744).
- The Guarantee Clause (800). Texas v. White (starting with note 8 on p 811-815).
- Treaty Power (736).
- Missouri v. Holland (736-738).
- Reid v. Covert (738-741).
- United States v. Bond - Oral argument recap
All Things Considered has a feature about Stephen Black, a Yale Law School graduate, and college professor at the University of Alabama, who is working on keeping college graduates in Alabama. You can listen here. Of his grandfather, he said, “Humanity is messy. My grandfather’s life is indicative of that . . . He literally educated himself out of racism.”
Questions like this let me know that I’m doing something right in class:
Why doesn’t the court just overrule The Slaughter House Cases and use the actual privileges or immunities clause so they don’t have to make up silly things like the penumbras?
I note this concurring opinion from Judge Merritt, where he comments on an opinion by my former boss, Judge Danny Boggs:
MERRITT, Circuit Judge, concurring. I agree with the court’s result but not all of its reasoning. The court’s idea that there is no “general duty” on the part of the government “to protect its citizens” and that all rights should be viewed as “strict negative rights” suggests a strict libertarian ideology that does not reflect the way our system works. See David P. Currie “Positive and Negative Constitutional Rights,” 53 U. Chi. L. Rev. 864 (1986).
Here is the passage from Judge Boggs’s opinion that set off Judge Merritt:
Both parties recognize the centrality of the Supreme Court’s seminal decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), a case, like this one, with “undeniably tragic” facts. Id. at 191. DeShaney stands for the principle that there is no general duty on the part of the state to protect its citizens from private harms. Strict negative rights are a distinctive aspect of the American constitutional system. “The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (Posner, J.).
I’m familiar with another “strict libertarian” constitutional scholar who referred to the Constitution as a charter of “negative liberties.”
[The] Constitution [is] merely “a charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.”
Like Judge Boggs, he was an instructor at the University of Chicago Law School.
Did Congress Pass A Bill Of Attainder That Denied Visa to Iranian Envoy Who Was Involved in 1979 Hostage Crisis?
The Times reports that both the House and Senate approved a bill “aimed at denying a visa to Iran’s choice for United Nations ambassador” Hamid Aboutalebi, who was alleged to have played a minor role in the 1979 hostage crisis in Tehran. Isn’t this a Bill of Attainder?
The bill, S.2195, introduced by Sen. Ted Cruz, is titled “A bill to deny admission to the United States to any representative to the United Nations who has been found to have been engaged in espionage activities or a terrorist activity against the United States and poses a threat to United States national security interests.” It would prohibit giving a visa to anyone who has been found to “have been engaged in espionage activities or a terrorist activity.”
The bill itself is not targeted directly Hamid Aboutalebi personally, but it would pretty clearly affect a small, small subset of people. So it’s probably not a Bill of Attainder.
The President is unlikely to sign the bill. Though, it was passed unanimously (unanimous Consent in the Senate and without objection in the House), so would we see a veto override?!
The more time elapses since I wrote Omniveillance in 2007, the closer things come to the state I predicted. The most recent exhibit is Persistent Surveillance Systems. Imagine a drone that can record everything going on in a given area, and map events over time to create a cross between Google Earth and Tivo.
The Center for Investigative Reporting takes a look at a number of emerging surveillance technologies in a new video, but one in particular stands out: A wide-area surveillance system invented by Ross McNutt, a retired Air Force veteran who owns a company called Persistent Surveillance Systems.
McNutt describes his product as “a live version of Google Earth, only with TiVo capabilities,” which is intriguing but vague (and also sounds a lot like the plot of this terrible Denzel movie). More specifically, PSS outfits planes with an array of super high-resolution cameras that allow a pilot to record a 25-square-mile patch of Earth constantly—for up to six hours.
It’s sort of similar to what your average satellite can do—except, in this case, you can rewind the video, zoom in, and follow specific people and cars as they move around the grid. It’s not specific enough to ID people by face, but, when used in unison with stoplight cameras and other on-the-ground video sources, it can identify suspects as they leave the scene of a crime.
Check out this helpful gif.
Here is how I described this time machine feature in Omniveillance:
As distinguished from previous forms of public monitoring, this new form of surveillance will be omnipresent, as it can record vast areas of space over a very small period of time. It provides the users of this system with omniscience to know everything happening in a specific location at a specific time. Furthermore, this information will be indefinitely retained, and easily accessible. When future versions of this technology is properly implemented, it will be possible to enter a time, date, and location, and witness what happened at that moment as if you were there. It is a virtual time machine.
Census Bureau To Change Annual Health Care Survey To Make it IMPOSSIBLE to Determine Impact of Obamacare
I’m not sure how I should react to this story in the Times that the Census Bureau is changing the manner in which data about uninsured people is collected. As a result, it will be impossible to measure the number of people who gained insurance before Obamacare. On the one hand, it seems like a good move, in that more detailed data will be gathered. But, on the other hand, my cynical side is piqued.
Nearly every aspect of the implementation of this law in Treasury and HHS has been politicized from the top down. Is the Census Bureau exempt? I want to say yes, but I can’t. This is the distrust that disregarding the rule of law engenders. Something as mundane as a survey about levels of uninsured is now subject to manipulation by the Administration.
The articles tries to discount that this change was political in nature
Another Census Bureau paper said “it is coincidental and unfortunate timing” that the survey was overhauled just before major provisions of the health care law took effect. “Ideally,” it said, “the redesign would have had at least a few years to gather base line and trend data.” … But the decision to make fundamental changes in the survey was driven by technical experts at the Census Bureau, and members of Congress have not focused on it or suggested political motives. The new survey was conceived, in part, to reduce a kind of bias or confusion in the old survey. When asked about their insurance arrangements in the prior year, people tended to give answers about their coverage at the time of the interview — forgetting, for example, if they had Medicaid for a few months early in the prior year.
But we also know that this new questionnaire came from the White House.
The White House is always looking for evidence to show the benefits of the health law, which is an issue in many of this year’s midterm elections. TheDepartment of Health and Human Services and the White House Council of Economic Advisers requested several of the new questions, and the White House Office of Management and Budget approved the new questionnaire.
Plus, this new survey will yield lower levels of uninsured.
An internal Census Bureau document said that the new questionnaire included a “total revision to health insurance questions” and, in a test last year, produced lower estimates of the uninsured. Thus, officials said, it will be difficult to say how much of any change is attributable to the Affordable Care Act and how much to the use of a new survey instrument.
“We are expecting much lower numbers just because of the questions and how they are asked,” said Brett J. O’Hara, chief of the health statistics branch at the Census Bureau.
With the new questions, “it is likely that the Census Bureau will decide that there is a break in series for the health insurance estimates,” says another agency document describing the changes. This “break in trend” will complicate efforts to trace the impact of the Affordable Care Act, it said.
So there we have it. In the era of Obamacare, it is now impossible to ascertain how many people actually gained coverage. And I wondered why Sebelius was dodging this question. I’m sure this change was known before the 7 million number came out.
The National Constitution Center has an excellent blog, Constitution Daily, with lots of great features about our Constitution. I’ve written several pieces for them. But one feature really isn’t working for me. This is the “Constitution Check” section, authored by Lyle Denniston. It makes an attempt to emulate fact-checking sites like Politifact.
In a recent post titled “Constitution Check: Does the Second Amendment need to be amended?” Lyle considers Justice Stevens’s recent proposal to amend the Second Amendment (I’ve written about Stevens more times than I can count, so here I’ll focus on Denniston’s “Constitution Check.”)
WE CHECKED THE CONSTITUTION, AND…
There is an old saying about the Constitution that, like a lot of old sayings, is at least partly an exaggeration: “The Constitution is what the Supreme Court says it is.” However, that is very close to the truth about the Second Amendment.
From its inclusion in the Constitution in 1791 until 2008, it was not understood to give Americans a personal right to have a gun. And then it changed, in a profound way.
Prior to 2008, there was a public conversation – often, in academic writings funded by the National Rifle Association – about whether the Amendment should go beyond protecting the arming of state militias, to allow Americans to arm themselves for personal use.
I have serious objections with this introduction. It is not written in a neutral or balanced way. If you purport to be writing some kind of objective, journalistic approach to the Constitution, this is not how you do it. What is most strikingly missing is ANY reference whatsoever to the facts supporting the other side of the debate. It is entirely one-sided.
For starters, this statement is false:
From its inclusion in the Constitution in 1791 until 2008, it was not understood to give Americans a personal right to have a gun. And then it changed, in a profound way.
Now, it would be fair to say that the original meaning of the Second Amendment is controversial, and that many people offer differing accounts of what that right is. But this blanket statement, without any nuance, is wrong. I could provide books upon books of sources to show that contemporary thinkers in the 18th, 19th and early 20th century thought the right to keep and bear arms was an individual right. Justice Scalia chronicles them at great length. And Justice Stevens provides other historical sources to say the history cuts the other way. A responsible “Constitution Check” would have to, at least mention both sources. An uninformed reader would believe that the right is simply made up out of whole cloth.
The post elides over this history, and only notes that the “public conversation” was often in “academic writings funded by the National Rifle Association.” I’m sure Lyle would not include in this group the works of Sandy Levinson, who authored the pathbreaking “The Embarrassing Second Amendment,” finding that the Second Amendment was in fact an individual right. Many prominent left-of-center academics came to the (uncomfortable) conclusion that the Second Amendment is an individual right (though they would find the law in Heller constitutional).
I appreciate the fact that the Second Amendment is controversial. I’ve written a lot about it, and spoken on the topic in front of legal, and non-legal audiences. Reasonable people can disagree on this topic. But making such unbalanced statements, without nuance, is a disservice to a blog post purporting to cite check the Constitution.
In preparing to teach Missouri v. Holland (hopefully for the last time, as Bond should either reverse it, or narrow it), I was struck by how Justice Holmes characterized the 10th Amendment. It wasn’t just a “truism.” Even worse. It was “invisible radiation.”
The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved.
Holmes mocks the 10th Amendment’s vague terms, joking about whether there is any kind of “invisible radiation” emanating from it.
Yet, 45 years later, in Griswold v. Connecticut, this mockery of jurisprudence would pass for constitutional law.
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
How did neither Justice Black nor Justice Stewart make this point in dissent!?
Alas, last night while watching the Lunar Eclipse, as hard as I tried, I could not discern any penumbras formed by the emanations from the sun. Though when I held my pocket Constitution up to the sky, it illuminated like in Raiders of the Lost Ark, and a zone of privacy merged around me. OK, I made up the last part, but why not.
The lingering effects of the Polar Vortex have now creeped into the Passover seder.
Why is this year unlike all other years? Because of the 11th plague — the polar vortex — which created a shortage of gefilte fish, the appetizer equally loathed and loved by generations of Jews.
The main ingredient in modern gefilte fish is whitefish, along with the traditional carp and possibly pike or mullet or, for the cosmopolitan, salmon. The vast majority of whitefish used by fishmongers, gefilte makers and home cooks in the United States comes from fisheries on the Great Lakes and in western Canada, according to Randall Copeland, vice president for operations at Manischewitz, the largest producer of gefilte fish in the world.
Though it may finally feel like spring in the rest of the country, up to four feet of ice still lingers on the lakes, which froze almost entirely during the winter.
“This isn’t dropping a line in the water and hauling fish in,” said Ronald Kinnuen, a fisheries specialist at Michigan Sea Grant, a cooperative run by Michigan State University and the University of Michigan. “These are huge nets, hundreds or thousands of feet in size, and costing $8,000 to $10,000. In these conditions, it’s foolish to try fishing.”
And, remarkably, Manischewitz buys their fish a year in advance. What, you thought it was fresh?
Manischewitz was largely spared the shortage because it buys its fish up to a year in advance, setting orders with suppliers for a mix of fresh and frozen fish. “We’ve been through enough lean times in the past to have learned our lesson and plan ahead,” Mr. Copeland said.
I’m sure this news will be met by some with anguish, and with others by relief.
In an Op-Ed published in the Washington Post on Wednesday, Justice Stevens made a glaring factual error which I pointed out here: there were no automatic weapons used in Newtown. Only semi-automatic rifles. There’s a big difference. The former is what people commonly think of as a machine gun (press the trigger once and lots of bullets spray out). The later fires one bullet per pull of the trigger. Here is how the Op-Ed opened up:
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered automatic weapons have been used to kill innocent victims in more senseless public incidents.
He made the same mistake elsewhere:
Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years.
At some point in the last few days, it was quietly edited to remove references to automatic weapons.
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns. …
Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years.
There is no indication that any edit was made. Such edits in a newspaper like the Washington Post should be noted. Though I’m glad someone bothered to fact-check the Op-Ed, after it was published. I hope my blog post may have had some impact here.
And, Stevens’s amendment to the Second Amendment doesn’t even make sense.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.
Why would there be an individual right to keep and bear arms in the militia? Could a commanding officer not take away a militiaman’s rifle because of the Second Amendment? Almost certainly the right in the militia would have to be collective.
Taking Stevens’s dissent in Heller seriously would require more than adding five words. How bout this:
A well regulated Militia, being necessary to the security of a free State, the right of the states to maintain militias shall not be infringed.
Joe Patrice endorses my proposed version. What have I done?! I hope this amendment goes absolutely nowhere.
Beyond entrenchment among beneficiaries, one of the biggest obstacles to shrinking entitlement programs are the bureaucratic establishments that emerge to manage the program, both inside and outside government. For example, one of the biggest lobbies against tax reform are accountants. They make a living on complicated tax returns. And now, that interest group has a new rent to seek–Obamacare.
I noted that while filing my 2013 tax return, TurboTax questioned me about whether I had health insurance. For a lark, I said no, and it directed me to signup at HealthCare.gov, and told me about the penalties I would have to pay. I immediately realized that accountants now have a vested interest in the growth, development, and obfuscation of Obamacare.
The Times has an article right on point, titled “Tax Preparers’ New Role: Health-Coverage Advisers”
The tax system provides both the carrot and the stick for people to obtain coverage. Tax preparers like Jackson Hewitt and H&R Block say they have helped tens of thousands of people apply for tax credits to help defray the cost of private insurance purchased through the exchanges.
In addition, the big tax service companies and makers of tax preparation software like Intuit’s TurboTax are calculating potential penalties for those who do not have insurance.
“It’s a tremendous business opportunity,” said Brian Haile, senior vice president for health policy at Jackson Hewitt. “We can do well by doing good.”
This how the Obamacare Industrial Complex will continue to creep its tentacles into all aspects of society.
I may be crazy, but Judge Posner may be responding to my claims about his judicial fashion show with his opinion in Catherine Conrad v. AM Community Credit Union. The opinion begins with a whimsical account of the Plaintiff’s business of dressing up like a banana.
POSNER, Circuit Judge. Catherine Conrad, the plaintiff, is a self‐employed singing and dancing entertainer (also a writer and motivational speaker, see “Bananaland,” www. bananalady.com/about.htm, visited on April 10, 2014, as were the other websites cited in this opinion). She calls her‐ self the “Banana Lady” and performs wearing a costume in the shape of a giant banana. You can watch her dancing the “Banana Shake” on YouTube, www.youtube.com/watch?v=DG‐QJWW6w5c.
But then, to satisfy all of our curiosities, Judge Posner includes a photograph of the lady in the banana costume–and stresses that it is “in the record.”
I will claim a minor victory here. Citations to the record for photographs are always a good thing. Though, I’m sure it would be funny to see recent law school grads clerking on the 7th Circuit to “doff” and “don” banana costumes.
The rest of the opinion is pretty funny.
I’m sure the plaintiff will a’peel.
In this case, the groom-to-be does not deserve the ring back, when he broke up the engagement by text message, and told her to keep the $50,000 rock “parting ring.”
On July 1, 2012, only three months before their wedding, [Christa] Clark, a nail technician from upstate New York, received a shocking text message from Billittier, co-owner of Chef’s Restaurant and her fiancé of three years, according to a story published by the Buffalo News. He informed her that their relationship was over. “You’re doing this through a text message?” she replied. Billittier promised to reimburse Clark for money she had spent on wedding preparations. He then added, “Plus you get a $50,000 parting ring. Enough for a down payment on a house.”
A few weeks later, angry that Clark was still in contact with his family, Billittier texted, “Keep it up, and I will take back the ring as well.” His final message: “You by law have to give it back. You’re nowhere near the person I thought you were. You don’t deserve it.”
Those text messages sealed Billittier’s fate. Judge Russell P. Buscaglia ruled that because Billittier referred to the ring as a “parting gift,” it no longer was associated with the promise of marriage. “I was being sarcastic, like a game show host – you get a parting gift,” Billittier claimed, in his own defense. That excuse didn’t hold up for the judge, who called it a classic case of “giver’s remorse.”
Blog Emperor Paul Caron has released the latest edition of the Blog Rankings. From 1/1/13 to 12/31/13, my blog was ranked #33 with 274,219 page views, with an increase of 155.5%.
Here are my previous rankings:
- From Oct. 1, 2012 – Sept. 30, 2013, my blog was ranked #32 with 261,239 page views.
- From July 1, 2012 – June 30, 2013, my blog was ranked #28 with 279,253 page views.
- From April 1, 2012 – March 31, 2013, my blog was ranked #31 with 210,601 page views.
So my traffic, in any given one year period, has steadied between 260,00 and 280,000 page views.
While I’m on the topic of milestones, I should note that I forgot to note post number 7,000 on January 21, 2014. I also forgot to note the 6,00th post, but I hit 5,000 posts on 12/19/2012. So roughly in one year I wrote 2,000 posts. I launched this blog on September 27, 2009. I hit 1,500 posts on 1/19/2011 and 2,000 posts on 5/10/2011. During my hiatus from August 2011 to August 2012, I hit 3,000 posts on 11/14/2011, 3,500 posts on 2/1/2012, 4,000 posts on 4/13/2012, and 4,500 posts on 7/27/2012.
I should hit post 7,500 in the next few weeks or so (I’m at 7,427).
During a soft-hitting interview on Meet the Press, Kathleen Sebelius discusses her “low point” of the Obamacare rollout.
Along the way, what was your low point?
SEC. KATHLEEN SEBELIUS:
Well, I would say that the eight weeks where the site was not functioning well for the vast majority of people was a pretty dismal time. And I was frankly hoping and watching and measuring the benchmarks. But having failed once — at the front of October– the first of December became a critical juncture of other– It was going to meet the expectations the second time around. I knew we didn’t have a third time around. So, it was– that was a pretty– a pretty scary date. And– and watching a lotta people come in and be able to be enrolled in December was very gratifying.
The Times has some inside scoops about Kathleen Sebelius’s 6-month long resignation from Secretary of HHS. Here are some highlights:
Everyone knew it was a disaster. After Kathleen Sebelius appeared on “The Daily Show with Jon Stewart” last October, she and her staff at the Department of Health and Human Services felt she had been sandbagged by Mr. Stewart. At the White House, President Obama’s top aides were aghast at her wooden performance.
The White House frustration with Ms. Sebelius crystallized by Thanksgiving, as it became clear in Washington that she would eventually have to go. Republicans were brutalizing her at congressional hearings. The health care website’s problems were consuming the White House. Under mounting pressure from congressional Democrats panicking about the fallout from the health care debacle on their fall campaigns, Mr. Obama had already brought in Jeffrey D. Zients, a management guru, to take control of the crisis from Ms. Sebelius. …
But three things put off Ms. Sebelius’s departure: Mr. Obama’s fear that letting people go in the middle of a crisis would delay fixing the website; his belief that ceremonial firings are public concessions to his enemies; and the admiration and personal loyalty that Mr. Obama still felt for Ms. Sebelius and her advocacy for his chief domestic legacy.
Over the next four months, Ms. Sebelius engaged in a kind of slow-motion resignation, largely staying out of the national limelight but crisscrossing the country in a furious effort to enroll people in health insurance and taking comfort from strangers who recognized — and offered thanks — for her efforts.
Senators should insist as part of confirmation on HHS’s release of the hard data and internal documents that would permit the independent corroboration and analysis that is especially relevant as insurers prepare plans and rates for the 2015 enrollment cycle.
Ms. Burwell should also be pressed to assess ObamaCare’s implementation so far and say what she would do differently. Amid multiple delays and executive rewrites that usually lack a legal basis, the enrollment deadline has been extended indefinitely. Large parts of the federal exchanges remain unbuilt, including small business services and the back-end operations that pass on subsidies to insurers. Major rules are unwritten, including the final employer mandate regulation.
How does Ms. Burwell intend to repair the wreckage of her predecessor’s tenure? Or will the constant improvisation continue?
The Senate has an obligation to scrutinize Ms. Burwell’s agenda and how she plans to govern the—ahem—28.5% of the federal budget that flows to health care. This is especially true for the vulnerable Democrats up for re-election who claim to favor a sheaf of ObamaCare “fixes.” If they mean it, they also should condition their votes on Ms. Burwell declaring herself on these proposals.
The Affordable Care Act invests HHS with vast new powers and employs the phrase “the Secretary shall” hundreds of times, even as Medicare regulations already bleed into all of American medicine. Republicans may lack the votes to defeat Ms. Burwell’s confirmation, but Kathleen Sebelius’s replacement should get a full-scale vetting before she assumes control.
Harry Reid is already calling for a “swift confirmation” of Burwell.
“Director Burwell deserves timely confirmation, and I hope my Republican colleagues will work with us to ensure we fill this important position without unnecessary obstruction and delay,” Reid said.