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Luis v. United States considered whether the government’s freezing of a persons assets–preventing him from affording an attorney–violates the 6th Amendment’s right of counsel. The final breakdown was 5-3, however there was no opinion that commanded five votes. Justice Breyer wrote for the Chief, and Justices Ginsburg and Sotomayor. Justice Thomas concurred in judgment. There were dissents by Justice Kennedy joined by Justice Alito, and a (rare) solo dissent by Justice Kagan.

In this post I want to highlight one aspect of Justice Thomas’s concurring opinion. He explained that the government cannot prohibit certain acts that are necessary to the exercise of constitutional rights. I have written that the right to keep and bear arms is necessarily preceded by a right to make or acquire arms–preventing access to arms makes the right to keep arms a nullity. Thomas makes a similar point concerning the right to access ammunition, or the right to access firearm training. Consider this analysis:

The law has long recognized that the “[a]uthorization of an act also authorizes a neces- sary predicate act.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 192 (2012) (discussing the “predicate-act canon”). As Thomas Cooley put it with respect to Government powers, “where a general power is conferred or duty enjoined, every particular power neces- sary for the exercise of the one, or the performance of the other, is also conferred.” Constitutional Limitations 63 (1868); see 1 J. Kent, Commentaries on American Law 464 (13th ed. 1884) (“[W]henever a power is given by a statute, everything necessary to the making of it effectual or req- uisite to attain the end is implied”). This logic equally applies to individual rights. After all, many rights are powers reserved to the People rather than delegated to the Government. Cf. U. S. Const., Amdt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).

Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. “There comes a point . . . at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself.” Hill v. Colorado, 530 U. S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, “implies a corresponding right to obtain the bullets necessary to use them,” Jackson v. City and County of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (inter- nal quotation marks omitted), and “to acquire and main- tain proficiency in their use,” Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011). See District of Columbia v. Heller, 554 U. S. 570, 617–618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (dis- cussing the implicit right to train with weapons)); United States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammuni- tion)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discuss- ing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. Likewise, the First Amendment “right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exer- cise.” McConnell v. Federal Election Comm’n, 540 U. S. 93, 252 (2003) (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part).

I would also highlight Thomas’s vigorous refutation of judicial balancing tests, with citations to Heller and Crawford:

As discussed, a pretrial freeze of untainted assets infringes that right. This conclusion leaves no room for balancing. Moreover, I have no idea whether, “compared to the right to counsel of choice,” the Government’s inter- ests in securing forfeiture and restitution lie “further from the heart of a fair, effective criminal justice system.” Ante, at 12. Judges are not well suited to strike the right “bal- ance” between those incommensurable interests. Nor do I think it is our role to do so. The People, through ratifica- tion, have already weighed the policy tradeoffs that consti- tutional rights entail. See Heller, 554 U. S., at 634–635. Those tradeoffs are thus not for us to reevaluate. “The very enumeration of the right” to counsel of choice denies us “the power to decide . . . whether the right is really worth insisting upon.” Id., at 634. Such judicial balancing “do[es] violence” to the constitutional design. Crawford v. Washington, 541 U. S. 36, 67–68 (2004). And it is out of step with our interpretive tradition. See Aleinikoff, Con- stitutional Law in the Age of Balancing, 96 Yale L. J. 943, 949–952 (1987) (noting that balancing did not appear in the Court’s constitutional analysis until the mid-20th century).

The plurality’s balancing analysis also casts doubt on the constitutionality of incidental burdens on the right to counsel. For the most part, the Court’s precedents hold that a generally applicable law placing only an incidental burden on a constitutional right does not violate that right. See R. A. V. v. St. Paul, 505 U. S. 377, 389–390 (1992) (explaining that content-neutral laws do not violate the First Amendment simply because they incidentally burden expressive conduct); Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878–882 (1990) (likewise for religion-neutral laws that burden religious exercise).

I do love reading solo opinions from Justice Thomas. There is always so much to think about, and so many points the majority (plurality here) can’t even attempt to respond to.

Today, the Court issued an unexpected order in Zubik v. Burwell, which was argued last Wednesday. The 354-word order asks the parties to file briefs on whether “contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” I emphasized the word “through,” because the theme of the oral arguments was that the federal government was “hijacking” the petitioners’ plans in order to provide women with “seamless” coverage.

During oral argument, in an exchange with Justice Alito, Paul Clement told the Court that for purposes of self-insured plans the notification provided by the objecting employer becomes a plan instrument for purposes of ERISA. Without that plan instrument, the insurer would be unable to then seek reimbursement from the government for providing the contraceptives to female employees. I am not an ERISA expert, but I think this is the general gist. Here is the exchange from arguments:

Samuel A. Alito, Jr.: You started to talk about — you started to talk about self-insured plans. Is it the case that the form or the notice to HHS in that instance becomes a plan instrument?

Paul D. Clement: In both cases, Your Honor, it becomes a plan instrument, and I think — you know, the government thinks that our notification in this case is the functional equivalent of the EBSA 700 Form, and the reason they required a form — and this shows you it’s not really an opt out, because the way the regulations were originally designed, you didn’t raise your hand and tell the government, I object. You sent a form directly to the insurer or directly to the TPA that they then treated as the permission slip to provide the coverage.

Ruth Bader Ginsburg: And that’s out now.

Paul D. Clement: Well, no, it’s not out. That’s actually still one of the ways that you can apply —

Ruth Bader Ginsburg: Yes, but you don’t have to do that. You can notify the government.

Paul D. Clement: Well, the alternative, thanks to this Court in its interim relief, is that we now can file an objection that the government treats exactly the same way. All they do that’s different is they essentially — it’s a mailing rule. They take our objection and then they provide that objection to the third-party administrator, and at least with the self-insured plans, that becomes every bit as much a plan document as the EBSA Form 700. And with all due respect, it’s a little rich for the government to say, This isn’t your plan, don’t worry about this, when their whole interest is put in terms of seamless coverage. If it’s seamless to the enduser, then I don’t think the Little Sisters perception that it’s seamless to them, and they are, in fact, complicit is an irrational belief by any stretch.

In effect, the objection the plaintiffs give the government–whether it is on Form EBSA Form 700 or anything else–is ultimately provided to the third-party administrator. That document then becomes an ERISA plan document, which enables the third-party administrator to seek reimbursements. As I understand the underlying regime, the government determined that without this notification, HHS lacked the statutory authority under ERISA to facilitate the accommodation. (I may be wrong about this).

So in effect, the Court is seeking answers from the party about how, within the legal bounds of ERISA, the government can pay the insurers for providing contraceptives without the plaintiffs submitting documents that become plan instruments.

With that understanding, you can see why Solicitor General Verrilli refused Alito’s characterization of the self-insured plan during this lengthy back-and-forth.

Samuel A. Alito, Jr. Well, you say in your brief, you admit in your brief that, at least in the case of the self-insured plan, the — the notice or the — the form or the notice becomes part of the plan. This is their health insurance plan established under ERISA, and you are putting a new objectionable element into the plan. Isn’t that correct?

Donald B. Verrilli, Jr. I don’t think that’s quite right, Justice Alito. I think there’s been some confusion on that on the Petitioner’s side. There are two separate notices that operate here on the self-insured plan. The first is the notice that the employer provides to the government. That’s an ERISA plan document, but what that — what — the legal effect of that document is to exempt the employer from any obligation to provide contraceptive coverage. There is a second document, a different document, that the government then sends to the third-party administrator. That document is the document that has a legal effect that creates the obligation on the part of the third-party administrator to provide the coverage. So it is not the case that the document that comes to us is an authorizing document. That’s an exempting document.

Samuel A. Alito, Jr.: But it — it is — it’s their plan, and you admit that you are putting something into their plan that they object to on religious grounds.
Donald B. Verrilli, Jr. So I —

Samuel A. Alito, Jr. So the difference between that and Mr. Clement’s hypothetical is that one involves something tangible, physical property, and the other involves something that’s intangible.
Donald B. Verrilli, Jr. Well, I think —

Samuel A. Alito, Jr. That’s the distinction.

The discussion then turns to whether it would be a substantial burden under RFRA for an employer to switch from a self-insured third-party administrator plan to a regular church plan, which does not have this problem. In effect, if the plaintiffs did not use the self-insured plans–which most of them do not–this particular problem of amending the ERISA plan with the new instrument would vanish.

Donald B. Verrilli, Jr. Well, it’s not just that it’s like intangible property. The — the plaintiffs really have a set of rules, and the third-party administrator becomes — for purpose of administering this, it becomes the plan administrator, the sole plan administrator, for this portion of the plan. But even if one thought that there was — that — that this did create a legally sufficient reason to find a substantial burden for — for third-party administrators, it’s not true about the situation with insurance companies. It’s not true about church plans. And so then it seems to me the question is whether switching from having a self-insured third-party administrator situation to an insurance company situation would — whether this would be a substantial burden.

Alito rejects the notion that switching plans would cure the burden.

Samuel A. Alito, Jr. Well, in the case of an insurance plan, isn’t the insurance policy part of the plan? Isn’t the insurance policy the way in which the — the employer provides the benefits that are available under the plan?

Donald B. Verrilli, Jr. Yes. And then — and then the government makes an arrangement with the insurance company that operates in parallel to that plan. And so — but — but it isn’t through that plan. It’s in parallel to that plan. So I think there’s a significant difference there, but —

The the Chief chimes in:

John G. Roberts This is the dispute that the Court’s order seeks to resolve.

I hope these transcript dialogues bring the Court’s order today into focus. If the arguments are any indication, Petitioners and Respondents will not agree on this pivotal point.

I have now finished grading your constitutional law midterms. You can download the exam here, and the A+ paper is here. Here is the distribution.

To be frank, I had fairly high expectations for this section–based on engaging class discussions–but the exams were disappointing. The exams at the top of the class were excellent, but there was a sharp drop-off after the A- papers. Many of you repeated maxims about ambition checking ambition without any context–as if you were trying to write something to score points. That won’t work. I can tell when you are fudging the answers. Also, given a 1,000 word limit, many of you couldn’t muster more than 500 or 600 words. Use the space you are given to show me what you’ve learned. You can do better. The average grade for my ConLaw exams is usually around a 3.10. Yours was 2.85. There were also three failures, which I wasn’t expecting to give, but felt compelled to due to the weak submissions.

Here are some high-level observations about each question.

1. The first question was a head fake that faked out almost every student in the class. With the exception of a few top papers, everyone treated the removal the Iranian ambassador to the United States as if he was someone the previous President appointed. The Iranian ambassador was selected by Iran. Therefore, this question really wasn’t one of the removal power, at all, but was a question of the recognition power discussed in Zivotofsky. It was striking how few of you picked up on this. The question was whether Congress can put limits on the President’s power to reject a foreign ambassador follows pretty closely from Zivotofsky, and the answer is no. Even if Congress has power over commercial relations with Iran, they cannot interfere with which ambassadors the President chooses to accept or reject. (Whether this aspect of Zivotofsky is defensible or not is a different story).
2. The second question was a reverse Marbury. Article III, Section II of the Constitution provides that in “Cases affecting ambassadors” the Supreme Court has original jurisdiction. The Judiciary Act of 2017 vests jurisdiction in the District Court for the District of Columbia for all cases affecting terrorism prosecutions. On its face, there is no conflict with Article III. However, if the former Iranian ambassador is in fact an ambassador there is a conflict, as the Supreme Court would otherwise have original jurisdiction over his case. (In case you are curious, the Supreme Court once did hold a jury trial, which was the inspiration for this question).  If that were the case, Congress is stripping away the Court’s original jurisdiction. Marbury said that Congress could not expand the Court’s original jurisdiction. But can it strip it? This is actually a close question that scholars have been arguing about for a very long time, but it is one that I would accept any answer to. However, if he was not in fact an ambassador any longer, he could in no sense avail himself of the Court’s original jurisdiction.
3. This question was a combination of Youngstown and the non-delegation doctrine. Truman’s seizure of property in Youngstown was invalidated because Congress did not delegate that power to him. Here, Congress purports to give the President the power over eminent domain, through a grant of “all powers that are necessary and proper to secure the southern border.” This is a grant of a boundless legislative power from the Congress to the Executive, which would almost certainly violate the non-delegation doctrine, even in its current moribund form. Also, the decision of how much to award for just compensation must be made through a judicial proceeding, so the executive could not do so by his own decision.
4. Deferred Action for Tax Evaders was based on DAPA. The key point to explore here was whether the President’s actions were consistent with his duty to take care that the laws are faithfully executed. The question stressed that Congress only appropriates enough money to audit 400,000 people per year, even though there are an estimated 11 million people who do not file tax returns. (These numbers parallel the numbers in U.S. v. Texas for immigrants and removals). A proper answer would discuss the role of prosecutorial discretion and good faith enforcement. Again, I would accept any answer that touches on these points, regardless of which way it comes out.
5. The final question was where you were supposed to shine, and show me that you embraced a lot of the policy discussions we went through in class. I’m glad many of you remembered the maxim, “in times of war, the laws fall silent,” and ably cited Korematsu. That was a good start. But better, more nuanced answers engaged others cases, such as Curtiss-Wright, Dames & Moore, and even the Guantanamo cases which we mentioned in class.

So what comes next? I will be holding a review session on Friday from 2:00-3:30 (Room TBD). It will be recorded. You will be able to pick up the papers from Cindi Lowrimore, whose office is across the hall from mine, starting Friday morning at 9. If you can’t pick up your papers on Friday, they will available the following week. Students who received a C- or lower are required to meet with me–and they will receive priority in scheduling office hours. Everyone else who wishes to meet with me can schedule an appointment–once all of the mandatory meetings are scheduled.

The lecture notes are here.

This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:

• He has made her, if married, in the eye of the law, civilly dead.
• He has taken from her all right in property, even to the wages she earns.
• He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.

The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.

Texas Code 2.401 governs “common law” or “informal marriage”

The lecture notes are here.

Race & Gender Discrimination

• Loving v. Virginia (1373-1379).
• Sex Discrimination (1407).
• Craig v. Boren (1407-1416).
• United States v. Virgnia (1416-1424).
• Beyond Race and Sex (1425-1428).
• “Fundamental Interests” (1441-1443).

Loving v. Virginia

Here are Mildred Delores Loving (nee Jeter)  and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.

Here is a video of a documentary about their case.

Reed v. Reed

The home of Sally Reed, the eponymous plaintiff of Reed v. Reed, in Boise, Idaho, bears this plaque.

It reads, in part:

Sally Reed lived here. Idaho and the Nation owes a lot to Sally Reed, who, though an unlikely hero, blazed a trail nationally for women’s rights with a 1971 U.S. Supreme Court victory. Sally lived in a two-story wood frame home from 1935 until 1999. After her divorce in 1958, from Cecil R. Reed, Sally made a modest living for herself and her son Richard, by caring for sick and disabled veterans in her own home. Skip’s death in 1967 led to competing petitions’ to administer his small estate. Idaho law at the time said in such cases “the male must be preferred over the female.”

Though she never sought the spotlight and didn’t realize the widespread significance of what she was doing, Sally’s basic instincts for right and wrong moved her to challenge this discriminatory law all the way to the U.S> Supreme Court, with the help of .  . . now U.S. Supreme Court Justice Ruth Bader Ginsburg, then a Rutgers University Law Professor and American Civil Liberties Union Volunteer.

The location at 1682 S Vista Ave in Boise is now an Angler shop.

Courtesy of Nick Korte.

Craig v. Boren

Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.

 This is the Honk-N-Holler Grocery store, where the light-beer was sold.

(Courtesy of Clare Cushman)

United States v. Virginia

This is the Virginia Military Institute.

Here are some of the first female cadets that graduated from VMI.

And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)

And here is a picture of Scalia and Ginsburg riding an elephant in India.