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The lecture notes are here. The live chat is here.

The Executive Power II – Removal Power

• The Executive Power – Article II (296-297).
• Notes (306-308).
• The “Removal” Power (348-351).
• Myers v. United States (351-366).
• Humphrey’s Executor v. United States (366-370).
• Morrison v. Olson – Removal (370-382).

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

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

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

This is Justice Louis Brandeis.

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

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

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

This is Alexia Morrison, the independent counsel in Morrison v. Olson.

This is Ted Olson, who served in the Reagan Justice Department, and was subject to investigation by Morrison.

Chief Justice Rehnquist wrote the majority opinion for the Court.

This is the Justice Scalia bobblehead. Note the wolf, because of his famous line that “this wolf comes as a wolf.”

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.

The lecture notes are here. The live chat is here.

The Legislative Powers

• Bicameralism & Presentment (260-261).
• INS v. Chadha (261-272).
• Clinton v. City of New York (272-281).
• Read Article I, Section 8 of the Constitution (3-4).
• Enumerated Powers in Article I, Section 8 (281-283).
• Bills of Attainder (283-284).
• Note 5 – Nixon v. GSA (293-294).
• Ex Post Facto Clause (294-295).
• Contracts Clause (295).

This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.

This is Jagdish Chadha.

Justice Louis Powell authored a concurring opinion.

Justice White dissented.

The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”

The majority opinion was authored by Justice John Paul Stevens.

Justice Anthony Michael Kennedy concurred.

Justice Stephen G. Breyer dissented, in part.

Justice Antonin Scalia dissented, in other parts.

Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.

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.

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.

Update: David Lat notes that Judge Stinson does bear some similarities to Judge Sykes.

(One reader of Supreme Ambitions(affiliate link) asked me whether Judge Sykes inspired the character of Judge Stinson. Although there are some similarities — both are fabulous, highly regarded, conservative women judges, talked about as possible SCOTUS nominees — Judge Sykes is way nicer than Judge Stinson, a judicial diva of the first order.)