Archive for the ‘Constitutional Law’ Category

Black Swan Alert

posted by Gerard Magliocca

This is a post that I wrote here in January 2010.  Still looks good.  Gerard

 

Jack Balkin has a post outlining his view that the individual health care mandate is constitutional.  He closes with this:

“I assume that as soon as the health reform bill is passed, people will challenge the individual mandate in court. I doubt these challenges will succeed. But stranger things have happened in constitutional law, and I’ve seen some of them in the past twenty-five years I have been teaching in this area. I will, however, say this: The Supreme Court would have to significantly alter its post-New Deal doctrines to strike this tax down. It could not just apply the law as it currently exists; it would have to change the law markedly. At present, I do not think the votes are there for such a constitutional revolution.”

The problem is that Balkin provides no explanation about why or when “stranger things happen” in constitutional law.  This sort of improbable event — a black swan — is treated as random.  That is simply wrong.  A central idea of my scholarship, both in my book about Jacksonian Democracy  (see the Amazon ad to the right) and my forthcoming book about Populism, is that these “preemptive opinions” follow a pattern. First, they are clustered around brief transition periods that follow a party realignment.  (In my view the 2008 election was such an event, though clearly that is a contestable assumption.)  Second, these cases share a distinctive signature.  Worcester v. Georgia, Dred Scott,Pollock, and Schechter Poultry are similar even though they are widely separated in time and dealt with very different questions.  (Indeed, as I said in a previous post, Pollock is the most relevant opinion for thinking about the health care mandate, both because of its political context and its discussion of direct taxes.  If you substitute “income taxes” for “individual mandate” in Balkin’s passage above, his comment is exactly what a constitutional expert would have said in 1895 about the challenge to the 1894 income tax.  How did that work out?)

Just to be clear, I am not saying that it is a certain that the Court will strike down the individual mandate. What I am saying that most scholars are looking at the wrong data set to make this prediction.  Instead of looking at all constitutional cases or all Commerce Clause cases, they should look at the smaller sample of cases at a generational inflection point that involve a major initiative of the new movement. When I look at that category, the odds of invalidation are more probable than not.

  March 31, 2012 at 1:22 pm   Posted in: Constitutional Law   Print This Post   3 Comments

Emergency Congress

posted by Gerard Magliocca

I have now reached the summer of 1869 in the Bingham book, which means that the end is in sight.  With Reconstruction largely in the rear-view mirror, I want to make an observation about what Congress did during this period.

When we think of emergency powers in any constitutional system, we almost always look at executive power.  A President in a security crisis, for example.  During the Panic of 2008, we saw an independent agency wield emergency powers (the Federal Reserve, helped along by the Treasury). Governors might also invoke extraordinary authority (say, in a natural disaster) and so on.

The Thirty-Ninth and Fortieth Congresses present a different model–emergency legislative power. (Another example is the English Convention of 1688 that governed after the abdication of James II.) Consider some of what Congress did between 1865 and 1868:

1.  Excluded the ex-Confederate States from the House and Senate.

2.  Imposed martial law on many of those states until they ratified the Fourteenth Amendment.

3.  Reduced the membership of the Supreme Court to seven members.

4.  Stripped the Court of jurisdiction to hear Ex Parte McCardle.

5.  Enacted the Second Reconstruction Act when seventeen states were not represented in Congress.

6.  Impeached the President.

7.  Removed the President’s authority to fire Cabinet members.

8.  Ruled that states could retract a no vote on ratifying the Fourteenth Amendment but not a yes vote.

The operation and justification of these “runaway parliaments” is a fruitful area for research–it gets virtually no attention as compared to the executive version.

  March 31, 2012 at 9:17 am   Posted in: Constitutional Law   Print This Post   4 Comments

Why Can’t We Analogize the Mandate?

posted by Nathan Cortez

Legal arguments often rely on analogies.  Indeed, during the first year of law school, students learn to analogize and distinguish cases. “This case is like this one, not that one.” Good lawyers can always conjure up and deploy a good analogy.

So why was it so hard yesterday for some of the most skilled lawyers and judges in the country to identify a good analogy for the individual mandate–the Affordable Care Act’s requirement that almost everyone buy minimum essential health insurance coverage or pay a penalty?

After listening to Tuesday’s historic two-hour oral argument and reading the transcripts, I counted roughly 17 different analogies to the insurance mandate–none of which seem particularly apt.

Here’s a brief rundown of the analogies invoked yesterday (by both the justices and the advocates), and then some thoughts on why they fall flat:

1.  Is mandating health insurance like mandating that people buy cell phones to call 911? (Chief Justice Roberts).

Read the rest of this post »

  March 29, 2012 at 2:53 pm   Posted in: Constitutional Law, Health Law   Print This Post   11 Comments

Uncertainty on ACA Day 3 (exhaustion sets in)

posted by Nicole Huberfeld

Again, some initial impressions.  Listening to the severability arguments today, the justices appeared to be pushing Mr. Clement pretty hard.  He is a remarkable orator, but he steadfastly proposed a judicially unworkable standard, that the law cannot be left a “hollowed out shell,” and it was clear that the justices were asking for more than a rhetorical device.  They also just seemed uncomfortable with striking the entire ACA when many aspects of the law are unrelated to the Title I private insurance reforms.  But then, as Mr. Kneedler took the podium, the justices were equally skeptical of his proposal, to strike just the individual mandate, guaranteed issue, and community rating requirements.  It seemed that the justices favored some kind of severability, but none of them were interested in the task (Justice Scalia called it a violation of the 8th Amendment).  Also fascinating was the amount of leeway Mr. Farr was given to ‘bat cleanup’ in his Court-appointed role.  He was permitted long monologues that the justices’ aggressive questioning had not allowed until he spoke, and his exposition was excellent.  He even responded well to a question regarding the economics of insurance that Kneedler didn’t really answer.  Nevertheless, his position, that only the individual mandate should fall, was not the clear winner either.

As for the Medicaid arguments, it seems possible that the Medicaid expansion will survive.  The more left-leaning justices questioned Mr. Clement relentlessly and once again his performance was notable, but his responses were a bit repetitive; they lacked the eloquence of the argument regarding the individual mandate, and his position was rather extreme.  The states are, after all, asking the Court to ‘fashion’ doctrine for them.  In some ways, the justices’ questions reminded me of the way the majority and dissent were articulated in Douglas v. ILC — the justices that seemed to favor upholding the expansion were attuned to the nature of the Medicaid program and the heavy burden the federal government will shoulder for the expansion population, whereas the justices that were interested in the concept of coercion almost seemed to find the vehicle of Medicaid irrelevant.  

General Verrilli did not shine in his defense of either the spending power or Medicaid.  When repeatedly asked why the Secretary of HHS does not exercise the power to withdraw all funding, his simple answer should have been, “because it would harm the beneficiaries of the program, so it’s never been done in 47 years.”  Instead, he made statments about not wanting to paint the Secretary into a corner and avoided the question.  It was confounding, and Justice Kagan finally made the point for him. 

Justice Kennedy sounded as if he was trying to import the New York v. US concept of political accountability into the spending power, but the other justices did not appear eager to apply New York to cooperative federalism programs.  I still believe that the Court may try to find a way to clean up the concept of coercion (though the oral arguments did not shine a bright light on what the doctrine will be) but may not find this particular expansion to be problematic. 

As a side note, Justice Scalia made his distaste for the invidual mandate pretty clear when he noted the political failures of enacting the law.  (“I would have thought there was serious political strain – constraint on the individual mandate too, but that didn’t work. What you call serious political constraints sometimes don’t work.”)

Everyone sounded pretty punchy by the end.  But also, I agree with Scott that Justice Sotomayor wins the gold star for excellent questions during this full set of arguments.

 Some distance will help to make the tea leaves a bit clearer, perhaps.  I agree with Jennifer that the Court often tries to give each side a ‘cookie’ but I’m not sure who gets which cookie at this point.  Also, Eddie, I hear your point, but that is not how health insurance currently works in this country (see Kevin Outterson’s fine post at the Incidental Economist here).

  March 29, 2012 at 12:52 am   Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   2 Comments

Jamal Greene on How the World Would Not End if the Supreme Court Did Not Tell Congress What to Do on ACA

posted by Danielle Citron

  March 28, 2012 at 8:55 am   Posted in: Constitutional Law, Courts, Health Law   Print This Post   10 Comments

Cookies and the Affordable Care Act

posted by Jennifer Hendricks

No, this is not a post about how the government is going to force you to buy cookies, even if that would be better than broccoli. It’s about how I came to realize that the minimum coverage provision is doomed: because one of the first things I learned as a litigator was that judges like to give a cookie to each side.

Until last week, I thought the individual mandate stood a chance of being upheld. Specifically, I thought that Justice Scalia might have enough intellectual honesty to stick to the logic of his Raich concurrence and vote to uphold the law.

But last week, the liberal blogosphere started lighting up with dire warnings about the ACA’s expansion of Medicaid, which is on the chopping block tomorrow. “You think the argument against the mandate is radical,” they intoned, “but look at this threat to the spending power.” This Supreme Court is so radical, the argument runs, that it is poised to declare the modern administrative state unconstitutional, in the absence of any split in the lower courts or even any plausible argument based on precedent.

That’s when I realized that Medicaid is the cookie for the left, and the only reason for the cert. grant on that issue was to make the Court look moderate when it strikes down the rest of the ACA. Of course, it only takes four to grant cert. But the Cookie Principle is also useful when four are trying to win over a fifth Liberals ought to stop raising the hue and cry that will make the Court seem restrained when it “only” strikes down minimum coverage.

  March 28, 2012 at 12:47 am   Posted in: Constitutional Law, Health Law, Supreme Court, Uncategorized   Print This Post   5 Comments

Initial impressions of Day 2

posted by Nicole Huberfeld

Many thanks to Gerard for organizing our conversation about the Big Three Days.  Just a few thoughts for Day 2, in no particular order.  First, General Verrilli must have been wishing that Justice Sotomayor were the SG when she was articulating the United States’ three big arguments (“threads”, in her language).  The U.S. has been disorganized in its defense of the private insurance aspects of this law, and it showed in today’s arguments.  (By the way, how about her shout out to the 99%?) 

Second, the Court often appears unnerved by the layers of complexity inherent in healthcare matters, and today was not much different.  Justice Scalia in particular seemed determined not to understand how health insurance or health insurance markets work.  And, General Verrilli could have done a much better job explaining risk pools; Justice Ginsburg had to jump in to help him.  The repeated questions about the temporal argument being made by the states – that purchase at the point of needing medical care would be acceptable - showed a complete lack of understanding about how insurance works.  No insurance can be purchased in the moment that insurance coverage is needed; if insurance could be purchased at the moment of the cancer treatment, or the auto accident, or the home fire, then insurance risk pools could not work – they would be all claims and no pool.

Third, I was surprised by Justice Kennedy’s initial deep skepticism, though it did seem like his stance softened by the time Mr. Carvin was at the podium.  Though Kennedy seemed to be articulating one of his favorite themes (limited government undergirds liberty) the “assume for the moment that this is unprecedented” comment seemed unusually hostile.  I don’t think it’s all in Justice Kennedy’s hands though, because although Chief Justice Roberts was also initially hostile to the U.S. position, he too seemed to change his tune when questioning Carvin.  It almost sounded like he was annoyed with the bombastic style Carvin employed.  Of course, this does not necessarily mean a change in heart on the constitutionality of the law itself, but I don’t think the Chief’s vote is set in stone (after all, remember his vote with the majority in Comstock).

I continue to find the states’ role in the individual mandate arguments to be questionable.  The provision is not about the federal-state relationship, even if one considers it a bypass of state police power to regulate individuals in the health insurance market directly.  The real federalism issue lies in the Medicaid question before the Court tomorrow…

  March 28, 2012 at 12:41 am   Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   2 Comments

Activity, Inactivity, Dawn, and Dusk

posted by Jennifer Hendricks

In today’s argument, Justice Kennedy seemed interested in the ACA challenger’s argument that the minimum coverage rule uniquely requires individuals to venture out into commerce, rather than pegging the law to some supposed pre-existing participation in commerce.

The activity/inactivity distinction is, of course, intellectually incoherent. Every first-year Torts students ought to learn to run circles around that sort of dichotomy. The reason they learn to do so, however, is that such distinctions and their incoherence make up the bread and butter of lawyering – all sorts of intellectually incoherent distinctions are nonetheless legally important. The existence of dawn and dusk does not negate the distinction between night and day.

The question, then, is how to figure out when such a distinction deserves to become a legal rule. The answer, I think, lies in the method of the common law. The reason that the activity/inactivity distinction doesn’t work is that it was invented to go after a particular law, rather than developing organically out of any underlying feature of commerce clause jurisprudence.

  March 28, 2012 at 12:35 am   Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   No Comments

Initial Thoughts on the ACA Litigation

posted by Brannon Denning

I wanted to second Scott in thanking Gerard for inviting me back to Concurring Opinions to blog about the ACA litigation. (Actually, I should thank Scott as well, who approached me about doing this. Thanks, Scott!)

In the interest of full disclosure, I should say that I am someone who, despite opposing the ACA on policy grounds, remains unconvinced that the case for its unconstitutionality is evident. That said, I also maintain—to the frustration of my constitutional law students—that the case against its unconstitutionality is hardly frivolous. Instead, I think that there are, as there so often are in constitutional law, lines of doctrine that point in different directions. Depending how one frames the important question, one can draw on a line of doctrine that is more helpful, enabling one to distinguish the cases comprising the other, less helpful, line of doctrine.

Part of the difficulty with the Court’s Commerce Clause cases, I think, lies in the Lopez majority’s willingness to strike down the Gun Free School Zones Act without overruling a single precedent. Chief Justice Rehnquist’s domestication of Wickard v. Filburn—his distinguishing Wickard from the GFSZA by noting that the latter regulated local activity in the service of a national regulatory scheme whose efficacy would be undermined were Congress unable to reach that activity—may have inspired Congress to think big in drafting the ACA, in order to be able to claim the individual mandate met that safe harbor. The chickens came home to roost somewhat in Raich, as Justices Scalia and Kennedy peeled off of the Lopez/Morrison majority to make a 6-3 majority in favor of applying the CSA to medical marijuana.

The other shoe to drop, after Raich, I think, was the Court’s decision in Comstock v. United States. I vividly recall reading that decision when it came out in 2010, after the bitter political fight over the ACA, and thinking, “Huh. Well, after that, the decision upholding the individual mandate practically writes itself.” (Though Ilya Somin has made a strong case why Comstock should not bolster the constitutional case for the individual mandate.) It has been interesting to see the Government’s argument evolve to lead with Comstock and the Necessary and Proper Clause at the fore.

So what’s my prediction regarding the Court’s ruling? I’ll go out on a limb and predict that the Court will uphold the individual mandate by a ruling of at least 6-3. I can only count 1, maybe 2 solid votes against (Scalia and Thomas); and four votes for (Ginsburg, Breyer, Sotomayor, and Kagan). The Chief Justice acquiesced in Justice Breyer’s Comstock opinion without filing a concurrence, as Justice Kennedy did in Raich. Justice Alito, too, joined Comstock. Though these things are notoriously tricky, I’ll be interested to see whether the oral argument on the individual mandate causes me to doubt my early prediction.  (I should disclose that I am terrible at SCOTUS predictions. I remember standing around a family Thanksgiving in 2000 patiently explaining why the Court would never intervene in the presidential election, and articulating what I thought was the slam dunk political question argument against judicial involvement, assuming the Court did grant cert.)

  March 27, 2012 at 9:02 am   Posted in: Constitutional Law   Print This Post   No Comments

Illinois Law Review, Issue 2012:2

posted by University of Illinois Law Review

University of Illinois Law Review, Issue 2012:2

Please see our website for past issues

Articles

Homogeneous Rules for Heterogeneous Families: The Standardization of Family Law When There is no Standard Family – Katharine K. Baker (PDF)

Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)

Sealand, HavenCo, and the Rule of Law – James Grimmelmann (PDF)

David C. Baum Memorial Lecture on Civil Rights and Civil Liberties

Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)

Notes

Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)

Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives – J. Matthew Haws (PDF)

The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights – Marcy Zora (PDF)

  March 26, 2012 at 4:37 pm   Posted in: Civil Rights, Constitutional Law, Family Law, First Amendment, International & Comparative Law, Law Rev (Illinois), Supreme Court, Uncategorized   Print This Post   No Comments

Prelude to Next Week’s Oral Argument: Henry and Stearns on Commerce Games and the Individual Mandate

posted by Danielle Citron

In preparation for Monday’s oral argument on the constitutionality of the Affordable Care Act’s individual mandate (and our online symposium), I wanted to recommend an insightful article written by my colleagues Leslie Meltzer Henry and Maxwell Stearns (both of whom I’ve blogged about here, here, and here) entitled Commerce Games and the Individual Mandate, 100 Georgetown Law Journal 1117 (2012).  I’m going to include the abstract below.  Yesterday, Professors Henry and Stearns published a terrific op ed in the Baltimore Sun arguing for the constitutionality of the individual mandate.

While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (ACA or the Act), a split between the United States Courts of Appeals for the Sixth Circuit (sustaining the ACA’s “individual mandate”) and the Eleventh Circuit (striking it down) ultimately compelled the Court to grant certiorari in a series of cases challenging the constitutional validity of the new federal health care law. In addition to deciding the fate of this centerpiece of the Obama Administration’s regulatory agenda, the Court’s decision will likely affect Commerce Clause doctrine—and related doctrines—for years or even decades to come.

Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” test, as set forth in United States v. Lopez, permits the individual mandate. This Article approaches the constitutionality of that provision from a novel perspective, one that proves essential in applying past Commerce Clause decisions, including Lopez, to the ACA and in appreciating the real stakes involved in upending the individual mandate. By analyzing the Court’s Commerce Clause jurisprudence through the lens of game theory, we expose common features of games that have resulted in limiting state powers on the dormant side of Commerce Clause doctrine, and in sustaining and restricting congressional powers on the affirmative side. Applying such games as “the prisoners’ dilemma,” “the driving game,” and “the battle of the sexes” yields critical insights about the nature and limits of state and federal regulatory powers.

Our game-theoretical analysis shows that although debates have centered on the role of the individual mandate in solving a micro-level separating game among low-risk individuals who do not purchase insurance and high-risk individuals who cannot afford it, a more compelling account focuses on the Act’s role in solving a macro-level separating game played among the states. By comparing the ACA to several important historical policy splits among states—public accommodations laws, abortion funding, the death penalty, civil remedies for violent crimes against women, and same-sex marriage—we demonstrate that the Act, including the individual mandate, fits well within those cases for which congressional commerce power is justified to avoid the risk that competing state policies will force other states into a problematic separating game, thereby undermining the selected regulatory policy. Our analysis reconciles congressional power to implement the ACA with the post-New Deal expansions and recent retrenchments of Congress’s Commerce Clause powers, and compellingly reconciles the dormant and affirmative sides of the Supreme Court’s Commerce Clause jurisprudence.

  March 24, 2012 at 12:36 pm   Posted in: Constitutional Law, Courts   Print This Post   2 Comments

Bingham on Federalism

posted by Gerard Magliocca

Federalism was not high on John Bingham’s agenda.  While he supported that structual concept, for most of his career states’-rights was synonymous with slavery and secession.  Nevertheless, I have found two areas where Bingham took positions that should be of interest to modern constitutional lawyers.

The first is that he supported a limited version of what we now call the “anti-commandeering” doctrine, which was articulated by the Supreme Court in Printz. In an 1869 speech, he rejected a proposed bill imposing federal enforcement obligations on a State Governor by saying:

“[I]f there is anything settled under the Constitution of the United Stats this is settled: that whatever rights are conferred, whatever duties are enjoined under the Constitution of the United States upon the Government of the United States they are to be executed, put in force, carried out by its own executive, legislative, or judicial officials without asking the consent or concurrence of any man of any State exercising the functions of a State official.”

Now this statement does not cover statutory duties imposed by Congress (i.e. enforcing federal gun control laws), but the idea expressed here certainly is consistent with the concerns identified in the anti-commandeering cases.

The second provocative argument that Bingham made was that there was a constitutional right to local government.  In 1871, he opposed a bill imposing tort liability on counties or municipalities because that could bankrupt them:

“There can no more be a State under the Constitution and laws of the several States of the Union without the corporate organization of counties or parishes therein than there can be a United States under the Constitution of the United States without organized States; because the counties in the several States are integral parts of the States, just as the States of the Union are integral parts of the nation.  If you destroy either you destroy the whole fabric.”

An article on whether there should be a federal constitutional right to local government is one that I keep thinking about, and this comment may motivate me to write up that idea. Many Supreme Court cases either presuppose the existence of local government (e.g., local control of schools) or rest on the notion that localities should be free of undue state interference with respect to the regulation sensitive subjects (Romer).  A leading criticism of Huey Long’s regime in Louisiana, about which I have written, was that he largely abolished local government there.  And if the benefits of federalism are clear in a large and diverse country, they should be equally clear in a large and diverse state.  There is an incongruity in saying that California can run everything from Sacramento, or that Albany can abolish the Mayoralty of New York City if the Legislature does not like the Mayor if the State Constitution permits that, when the same cannot be done by Congress to those States.  What this right should consist of is another matter, but it strikes me as an exceptionally important question.

  March 24, 2012 at 9:29 am   Posted in: Constitutional Law   Print This Post   No Comments

The Chief Justice on Strike

posted by Gerard Magliocca

In reading about the impeachment of President Johnson, I came across this nugget. Article One, Section Three of the Constitution says that “The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside.”

Suppose, though, that the Chief Justice just refuses to show up because he disapproves of the impeachment. Can the Senate trial go forward?  If so, how?  You could impeach and remove the Chief Justice, of course, but that might take a long time.  Suppose, on the other hand, that the Chief Justice is ill and cannot attend the President’s impeachment trial.  Can an Acting Chief Justice preside?

Just wondering . . .

 

 

  March 21, 2012 at 9:44 pm   Posted in: Constitutional Law   Print This Post   3 Comments

Stanford Law Review Online: Animus Thick and Thin

posted by Stanford Law Review

The Stanford Law Review Online recently published an Essay by Nan D. Hunter entitled Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown. Professor Hunter argues that the Perry decision will have a more far-reaching impact than most commentators have suggested, both in defining the role of animus in equal protection analysis and in establishing the courts’ role in checking popular initiatives that deny rights to minorities:

The only problem with this analysis for marriage equality supporters is that, despite the principle that courts should resolve constitutional disputes on the narrowest possible grounds, the “taking away” portion of the rationale strikes some as too outcome driven and transparently invented for the goal of providing the Supreme Court with a plausible rationale for denying certiorari. From this view, the opinion’s political strength will also be its greatest doctrinal weakness.

I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.

She concludes:

[A]lthough initially the panel opinion in Perry would affect only Proposition 8, its larger contribution may be the creative way that it addresses the persistent, intractable conundrum of America’s countermajoritarian difficulty. The opinion does this in part by taking animus seriously as one of the criteria for heightened rational basis review and in part by creating a modest curb on popularly enacted state constitutional amendments. If the Ninth Circuit grants rehearing en banc, the opinion will be vacated, but one hopes that its contribution to the evolution of equal protection law will endure.

Read the full article, Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown by Nan D. Hunter, at Stanford Law Review Online.

  March 21, 2012 at 8:41 pm   Posted in: Civil Rights, Constitutional Law, Courts, Current Events, Jurisprudence, Law Rev (Stanford), LGBT, Politics, Supreme Court   Print This Post   No Comments

The Real Story of Lawrence v. Texas

posted by Gerard Magliocca

As I get older, I find that when it comes to things legal it’s getting harder to be astonished.  But I was amazed to read the account in The New Yorker about Dale Carpenter’s new book on the factual background and litigation history of Lawrence v. Texas.  I had no idea that the reality of the case was so different from the impression given by the opinion, and I’m eager to read the book, which you can find here.

  March 14, 2012 at 1:03 pm   Posted in: Constitutional Law, Uncategorized   Print This Post   2 Comments

UCLA Law Review Vol. 59, Discourse

posted by UCLA Law Review

Volume 59, Discourse

Discourse

Putting Down: Expressive Subordination and Equal Protection	Jeffrey S. Helmreich	112
Tinkering With the Machinery of Life	Ben Trachtenberg	128
Lies, Honor, and the Government’s Good Name: Seditious Libel and the Stolen Valor Act	Christina E. Wells	136

  March 11, 2012 at 7:55 pm   Posted in: Constitutional Law, Environmental Law, Law Rev (UCLA), Race, Tort Law   Print This Post   No Comments

Lead Plaintiff in the Individual Mandate Litigation has Unpaid Medical Bills

posted by Gerard Magliocca

This article explains why you should choose carefully when you bring constitutional litigation.  Someone who went bankrupt and stuck the rest of us with unpaid medical bills is not the greatest vehicle for this case.

  March 10, 2012 at 7:43 pm   Posted in: Constitutional Law   Print This Post   7 Comments

The Yale Law Journal Online: “Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism” and “Bad News for John Marshall”

posted by Yale Law Journal

The Yale Law Journal Online has published its third and fourth installments in a series on the Necessary and Proper Clause and the constitutionality of the 2010 health care reform law. The first essay in the series, Andrew Koppelman’s Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, argued that the individual mandate in the Patient Protection and Affordable Care Act is a “necessary and proper” exercise of Congress’s powers under Article I, Section 8 of the Constitution. In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, Gary Lawson and David B. Kopel responded to Professor Koppelman’s essay and, on argued—on the basis of their historical analysis—that the Necessary and Proper Clause does not validate the constitutionality of the individual mandate.

The debate now continues with Koppleman’s Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism and Lawson and Kopel’s Bad News for John Marshall. In Bad News for Everybody, Koppelman argues that Lawson and Kopel’s interpretation of the Necessary and Proper Clause “implies the greatest revolution in federal power in American history.” He concludes that using “new evidence of original meaning [as] a legitimate basis for hamstringing Congress’s power to address pressing national problems” is “insane.” Lawson and Kopel respond once again in Bad News for John Marshall, arguing that Koppelman “wrongly conflates [their] argument with a wide range of interpretative and substantive positions that are not logically entailed.” They conclude that the original understanding of the Necessary and Proper Clause is fully consistent with Chief Justice John Marshall’s reasoning in McCulloch v. Maryland. They write: “If, as Professor Koppelman appears to believe, only reprobates intent upon ending civilization, crashing the world financial order, and randomly killing off the populace could advance our arguments, a new biography of John Marshall is clearly warranted.”

Preferred citations:

Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, 121 YALE L.J. ONLINE 515 (2012),http://yalelawjournal.org/2012/03/06/koppelman.html.

Gary Lawson & David B. Kopel, Bad News for John Marshall, 121 YALE L.J. ONLINE 529 (2012), http://yalelawjournal.org/ 2012/03/06/lawson&kopel.html.

  March 8, 2012 at 9:00 am   Posted in: Constitutional Law, Health Law, Law Rev (Yale)   Print This Post   No Comments

Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality

posted by Marco Simons

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.

On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
Read the rest of this post »

  March 7, 2012 at 10:09 am   Posted in: Constitutional Law, International & Comparative Law, Tort Law   Print This Post   No Comments

The Problem with Affirmative Action After Grutter: Some Reflections on Fisher v. University of Texas

posted by Khiara M. Bridges

It’s official: the Supreme Court will hear Fisher v. University of Texas at Austin this term. The Court will determine the constitutionality of the university’s use of race in its undergraduate admissions decisions. Because Justice Kagan has recused herself, supporters of affirmative action must hope (pray!) for a 4-4 split – with Justices Breyer, Ginsburg, Sotomayor, and Kennedy on one side and Justices Alito, Roberts, Scalia, and Thomas on the other.

But, what’s the likelihood that Justice Kennedy will swing to the left? After all, he dissented in Grutter. Part of his discontent in 2003 concerned Michigan Law’s notion of a “critical mass.” Michigan Law argued, and the majority accepted, that a “critical mass” of minority students would promote “cross-racial understanding,” undermine racial stereotypes, prepare students for the “multicultural workforce” that exists outside the law school’s doors, and prevent minority students from having to be “spokespersons for their race.” Essentially, admitting less than a “critical mass” of minority students would be an exercise in futility; however, admitting a “critical mass” of them would further the compelling state interest in securing the educational benefits of having a diverse student body. But, Kennedy protested that he was not fooled by the concept of “critical mass.” To him, “critical mass” walked like a quota and quacked like a quota. “Aha!,” Kennedy exclaimed in dissent. “It’s a quota!” And quotas are, of course, constitutionally repugnant.

So, it may be a bit ominous for those who want to see the University of Texas’ affirmative action program survive review that the university specifically and explicitly argues that it uses race in its admissions decisions in order to ensure that its student body contains a “critical mass” of racial minorities. As Justice Blackmun said in another context: “The signs are evident and ominous, and a chill wind blows.”

Notably, Justice Kennedy did not have a problem with the Grutter majority’s holding that student body diversity was a compelling governmental interest. He noted in his dissent that he found “no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity”; his disquietude was solely with the way that Michigan Law pursued this interest. Thus, if Texas’ program is struck down this term, it will not be because a majority has found that achieving student body diversity is no longer a compelling governmental interest.

Yet, this holding is, for me, the most disturbing part of Grutter. I get it: we have to argue in the language of “diversity” in order to justify affirmative action programs because the jurisprudence will not allow us to argue successfully in the language of “remedying past societal discrimination.” But, while the end is the same (more racial minorities gain access to schools that otherwise would be inaccessible), the means to the end are troubling. Why is “diversity” more attractive as a compelling interest than “remedying past societal discrimination”? The answer may be that those who are imagined to benefit from programs designed to “remedy past societal discrimination” are only the minority groups that were victims of discrimination; however, those who are imagined to benefit from programs designed to increase diversity include nonminorities. To be clear: the programs are the same. But, when “diversity” is the justification for the program, it allows us to imagine that even White people benefit. Nonwhite people and White people acquire cross-racial understanding. Nonwhite people and White people are disabused of racial stereotypes. Nonwhite people and White people are prepared to enter a multicultural workforce. There are no losers with diversity! It’s a win-win!

And I’m pretty sure that individuals of all racial ascriptions and identifications benefit from racially diverse environments. However, my issue is that when the interest was framed in terms that focused only on the benefit that minorities would receive from affirmative action – when it was articulated in the language of “remedying past societal discrimination” – a majority of the Court refused to find that this interest was compelling. Rectifying the enduring effects of the mistreatment, the disenfranchisement, the denial of citizenship, the abuse… That’s definitely legitimate. It may even be important. But, it’s not compelling. Diversity, on the other hand? That’s the stuff that the Fourteenth Amendment can sink its teeth into!

At present, efforts to repair the damage caused by this country’s history of racism and exclusion can only be justified by not making reference to this country’s history of racism and exclusion. There’s something unsettling about that. There’s also something unsettling about the work that the acceptance of the diversity argument, coupled with the rejection of the remediation argument, does to deny that the effects of past societal discrimination even exist. Diversity screams, “Racism is dead!” But, could it be that the premature celebration of racism’s demise is the very sign that demonstrates that racism is alive and well? That is: nonwhite people – Black people, specifically – are poorer, sicker, more frequently incarcerated, die earlier, more likely to die violent deaths, etc., than their White counterparts. If these disparities are not the effects of past societal discrimination – if these disparities are not the effects of institutional mechanisms – then what explains them? The focus shifts to individuals and their pathological choices, behaviors, lifestyles, cultures, instincts, etc. And racism is just a stone’s throw away.

  March 6, 2012 at 11:30 pm   Posted in: Constitutional Law, Race, Uncategorized   Print This Post   16 Comments

• « Older Entries
• Newer Entries »