Author: Gerard Magliocca

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More on Arizona State Legislature–Reply to Mike Ramsey

The always insightful Mike Ramsey has posted about my posts about the Arizona State Legislature case.  I thought I would offer a couple of further comments.

In several places the Constitution clearly says that only “the Legislature” can do something.  For the regulation of congressional districts, though, the Constitution says that “[T]he Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  I submit that this is not clear as Mike suggests.  Why is that?  Because governors have always had the power to veto redistricting plans (as the Supreme Court held in Smiley v. Holm and as the practice was going back to the Founding), whereas they have not had the power to veto, for example, ratifications of constitutional amendments under Article V.  As a result, Article I, Section IV must mean “prescribed in each State by the Legislature thereof” consistent with the lawmaking process set forth in the state constitution.

Does this principle include a state constitution that drastically reduces the Legislature’s role in an unprecedented way?  I’m not sure.  The Arizona scheme may go too far given the text and the Court’s holding in Holm, but I don’t see an originalist ground to object.  Were the Framers opposed to state referenda for regulating elections?  I doubt that you can find any evidence for that.  In that sort of vacuum, I think it is relevant to point out the policy implications of saying that the remedy for partisan gerrymandering lies only with the legislature doing the partisan gerrymandering.  That is not, as Mike says, “purely an argument from policy.”  Moreover, Congress could have exercised its Article I, Section 4 powers to bar independent commissions mandated by a state constitution for redistricting.  It has not done so.  A judicial decision doing so would (as I said in my last post) create a “Dormant Elections Clause,” which I do not think is consistent with any original understanding.

All of this leads me to the conclusion (albeit marginally) that the Arizona plan is constitutional.  What would change my mind?  Probably learning something relevant about the history of state regulation of redistricting or the reasons behind the Framers’ choice to give Congress and state legislatures joint ownership over this power.  So we’ll see what the briefs have to say.

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Vaccination Negligence

I thought I’d offer some thoughts on an issue that is starting to get attention:  Should parents who choose not to vaccinate their children against standard childhood illnesses (measles, mumps, whooping cough) be held liable if their child makes someone else’s child sick with one of these diseases?  For purposes of this discussion, let’s make two assumptions.  First, the choice not to vaccinate was not made for religious reasons.  (That presents a more complex problem.)  Second, there is no contributory negligence (in those jurisdictions) or significant comparative negligence (in jurisdictions that bar recovery when plaintiff is more negligent than defendant) by the parents of the sick child.

The most plausible factual scenario goes something like this.  Plaintiff’s child is too young to be vaccinated fully against a disease or cannot be vaccinated for some unavoidable reason.  This child is exposed to defendant’s child, who is old enough for full vaccination but was not given vaccine and is a host for the disease.  The choice not to give vaccine is made because of concern about the risks that vaccines pose, the belief that they increase the chance of becoming autistic, or some other non-religious reason.Now the question that will generate the most controversy is whether parents are negligent for not vaccinating their child under these circumstances.  I want, though, to focus on how the causation issue would play out.  How would a plaintiff show that exposure to defendant’s child was the cause of the disease?

Here we face an ironic problem.  One thought behind vaccination is “herd protection.”  The idea is that if everyone in a given population who can be inoculated is inoculated then it is far less likely that those who cannot get vaccinated will get sick.  (You can argue that those who are not vaccinating are free riding on those who do.)  When it comes to legal liability, though, herd protection favors those who choose not to vaccinate.  The more children there are like that, the harder it will be for a plaintiff to show but-for cause with respect to any individual child.

How should courts deal with that?  Is the answer that these claims should be viable when a plaintiff can prove that only one child could have exposed his or her child to measles?  Or should we shift the burden of proof to defendants?  Is this a Summers v. Tice situation (at least if we could narrow culpability to a few children)  That question depends, in part, on how bad we think not vaccinating is.  Generally the more egregious the wrong, the more likely we are to extend the scope of causation to hold the wrongdoer liable.

Anyway, I’m sure this will be litigated at some point, and it’s a topic to watch.

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More on Redistricting

Another way of looking at the Arizona State Legislature case is that the Constitution should be read to limit the freedom of states to take decisions that affect the structure or composition of the national government.  This rationale is advanced in some of the cases that discuss different uses of the word “legislature,” so let’s explore some examples.

1.  The ratification and proposal of constitutional amendments.  Article Five provides that Congress gets to decide how a constitutional amendment is ratified (either through state legislatures or conventions).  Article Five also specifies that only state legislatures may petition Congress for a second constitutional convention.  In neither instance may a state choose another method (say, by giving the Governor a role, using the initiative process, etc.)  Why?  I suppose because these are national (rather than local) decisions and thus the nation gets to choose the means.

2.  The election of Senators prior to the Sixteenth Amendment.  Only state legislatures could pick senators.  A state could not write its constitution to use another method.  Senators, of course, are national officials.

3.  The creation of new states from existing states.  Article Four says that this cannot be done without the consent of the relevant state legislatures.  Creating new states, of course, has a profound effect on the national government.

Why do I bring these up?  You could say that congressional redistricting is an example of a state action that directly affects the composition of Congress.  As a result, the Constitution’s statement that this “shall be prescribed in each State by the Legislature thereof” does limit a state’s ability to use some other method like an independent body.  On the other hand, Article One, Section expressly gives Congress the power to override a state decision of this sort.  As a result, you could say that if Congress does not prohibit what a state does in this regard then the Constitution should not be read to impose an independent barrier.  in other words, there is no “Dormant Elections Clause.”

Just food for thought.

 

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Upcoming Talk in DC

I’ll be giving a talk on John Bingham to The Lincoln Group of the District of Columbia on Tuesday, December 16th.  If you are interested in attending, here is the information.

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The Same-Sex Marriage Cases

Just a quick thought about the Court’s certiorari denials today.  All eyes now turn to the Sixth Circuit, where a case is pending that could produce an opinion upholding same-sex marriage prohibitions.  Depending on when that opinion comes down, the Supreme Court could resolve the constitutional issue this Term.  Or perhaps next Term.

Or not. The Sixth Circuit rarely misses an opportunity to go en banc.  If the panel opinion is taken en banc, then who knows when that opinion would reach the Justices.  Perhaps the losers in the Sixth Circuit will not request en banc review (I don’t know if the Sixth ever goes en banc sua sponte), but that is far from clear.

Bottom line–don’t expect a Supreme Court decision on this until 2016 at the earliest.  That might be bad news the Republican presidential nominee, who may have to take an unpopular stand saying no to same-sex marriage into the general election.

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Arizona State Legislature v. Arizona Ind. Redistricting Comm’n

I was planning to write a post on how the Constitution uses the word “legislature,” but after reading Chief Justice Hughes’ opinion for the Court in Smiley v. Holm, 285 U.S. 355 (1932), I think that is unnecessary.  Hughes does a good job of laying out the arguments in the context of Article One, Section Four.  Let me summarize the case and then explain why Smiley‘s holding should be extended in Arizona State Legislature (the congressional redistricting case that the Supreme Court just decided to hear).

After the 1930 Census, the Minnesota Legislature passed a congressional redistricting plan that was vetoed by the Governor.  One branch of the legislature then passed a resolution ordering the Secretary of State to implement the plan in spite of the veto.  A suit was filed challenging this plan as unlawful, and the counterargument was that Article One, Section Four gave the Legislature exclusive authority over congressional districting.  The Supreme Court held that the Legislature’s position was without merit.  In part, this was because longstanding practice in the states was that governors could veto in congressional redistricting legislation.  The Court also said that there was “no suggestion in the federal constitutional provision of an attempt to endow the legislature of the state with power to enact laws in any manner other than that in which the constitution of the state has provided that laws shall be enacted.”

The Arizona case can be distinguished from Holm in two ways.  First, there is no longstanding practice for states to remove by constitutional amendment the power of the legislature to undertake congressional redistricting.  Second, one could say that the dictum just quoted assumes that the legislature will play a role in redistricting by referring to laws that are being enacted.  If the state constitution gives that power exclusively to a special commission, then law is not being enacted in the ordinary way.  On the other hand, the dictum can be read broadly to mean “whatever the State Constitution says on this question is consistent with the Federal Constitution.”  Here the Arizona Constitution is provided that no laws on congressional redistricting shall be enacted.  End of story.

Why do I think that the latter interpretation is better?  Mainly on structural grounds.  The remedy for partisan gerrymandering cannot be placed within the authority of the institution that does the gerrymandering.   In practice, there is no judicial review of partisan gerrymandering claims and Congress will not act.  Thus, the only plausible remedy is through an initiative or referendum in states that permit them.  There is the argument that a state can limit partisan gerrymandering in its constitution while still letting the legislature draw district lines.  Perhaps the Arizona referendum goes too far by cutting out the Legislature entirely.  The problem is that state constitutional provisions on partisan gerrymandering (such as in Florida) have not led to any meaningful relief, so I’m not sure this option is real.

This will be a fascinating case if the Court reaches the merits.  I must admit that my thoughts on this issue have changed as I’ve worked through the materials.  At first I was sure that the Arizona amendment was constitutional.  Now I have doubts, though I still think on balance that this amendment is constitutional.

 

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What is a Legislature?

One of the cases that the Supreme Court agreed today to hear presents the question of whether a state can by referendum create a commission to do congressional redistricting.  (Arizona State Legislature v. Arizona Indep. Redistricting).  Assuming that the Arizona Legislature has standing to bring this appeal, the merits of the case are quite important and interesting.  The constitutional issue is whether Article One, Section Four means that only the state legislature or its agent can do redistricting (not a commission created by a referendum). I will post something long about this case when I have time, though my conclusion is that the Arizona commission is constitutional.

UPDATE:  I should add that I think this is a close question, for reasons that I’ll explain in my next post.

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A Plea Bargaining Strike

I am seldom shocked these days, but the article in this week’s New Yorker about Kalief Browder is astonishing.  Browder is arrested for theft.  He does not receive bail.  He is imprisoned for three years on Rikers Island without trial.  Then the prosecutor dismisses the case (because the alleged victim moved to another country).  How this could go on without a successful Sixth Amendment claim is beyond me.  (Browder is now suing for damages).  The New York criminal justice system (at least in the City) should be deeply ashamed.

This leads me to ask a broader question about the constitutional guarantee of a “speedy trial.”  Nobody would be surprised to learn that trials are much less speedy now than they were in 1791 or 1868.  Some of that is unavoidable, but I wonder to what extent this constitutional right is ripe for rediscovery.  Consider that this is a right that protects defendants.  If the state cannot get its case together in a timely way, then the charges must be dismissed.  Moreover, if a state or local criminal justice system is underfunded such that trials cannot happen quickly, then the charges must be dismissed.  At least that could be how the Sixth Amendment is applied.  My sense, though, is that courts rarely find that a defendant’s speedy trial right is violated.  (I can tell a good story about the related right to a “public trial” from my clerking days, but I’ll save that for another post.)  An originalist could have a field day with this subject.

This brings me to my last thought.  People often complain about the use of plea bargaining and its abuses.  Imagine for a moment that there was a plea bargaining strike.  Under any reasonable interpretation of the Sixth Amendment, most of the striking defendants should go free.  Why?  Because the current criminal justice could not handle so many trials–the delays and backlog would be enormous.  That suggests the existence of a significant right/remedy gap.

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Enumerated Powers Reconsidered

I want to flag a new paper by Richard Primus (full disclosure–my co-clerk and friend) forthcoming in Yale Law Journal.  “The Limits of Enumeration” will likely be a significant contribution to the debate on the powers of Congress that was at the heart of NFIB v. Sebelius.  Here is the Abstract:

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internal-limits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency, not a matter of principle: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. This Article explains why setting aside the internal-limits canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.

 

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Happy Constitution Day!

On this solemn anniversary I ask that the American people rejoice in the wisdom of their Constitution.  I ask that they guarantee the effectiveness of each of its parts by living by the Constitution as a whole.  I ask that they have faith in its ultimate capacity to work out the problems of democracy, but that they justify that faith by making it work now rather than twenty years from now.  I ask that they give their fealty to the Constitution itself and not to its misinterpreters.  I ask that they exalt the glorious simplicity of its purposes, rather than a century of complicated legalism.  I ask that majorities and minorities subordinate intolerance and power alike to the common good of all.  For us the Constitution is a common bond, without bitterness, for those who see America as Lincoln saw it, ‘the last, best hope of earth.’  So we revere it, not because it is old but because it is ever new, not in the worship of its past alone but in the faith of the living who keep it young, now and in the years to come.

Franklin D. Roosevelt, Constitution Day Address (1937)