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Tagged: Constitutional Law

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On the Colloquy: The Credit Crisis, Refusal-to-Deal, Procreation & the Constitution, and Open Records vs. Death-Related Privacy Rights

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This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when a dominant firm refuses to share its intellectual property, even at monopoly prices.

Professor Carter Dillard then discussed the circumstances in which it may be morally permissible, and possibly even legally permissible, for a state to intervene and prohibit procreation.

Rounding out the summer was Professor Clay Calvert’s article looking at journalists’ use of open record laws and death-related privacy rights.  Calvert questions whether journalists have a responsibility beyond simply reporting dying words and graphic images.  He concludes that, at the very least, journalists should listen to the impact their reporting has on surviving family members.

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Return of the Necessary and Proper Clause (Just in Time for Health Care)

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.  U.S. Const. Art. I, § 8.

The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia.  The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).

The constitutional challenges focus on the so-called individual mandate, taking effect in 2014, which will require that most people either own health insurance or pay a penalty.  Legally, the arguments against the legislation lack merit.  As I have argued elsewhere, under contemporary Commerce Clause doctrine, Congress can impose the individual mandate as part of its comprehensive regulation of the interstate market in health insurance.  Further, the provision is structured as a tax on those who fail to purchase insurance, thus falling within Congress’s even broader taxing authority.

Rhetorically, however, the opponents’ arguments may have some appeal.  How, the critics insist, can Congress’s constitutional authority to regulate interstate commerce extend to regulating the non-commercial activity of doing nothing (i.e., not buying insurance)?  Doing nothing is not commerce, the law’s opponents proclaim.  Can you make a federal case out of taking a nap?

The answer to this rhetoric comes from the Court’s great rhetorician, Justice Antonin Scalia.

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Immigration Federalism: Red and Blue

In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of “renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.

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Red State Federalism

It is a great pleasure to be a guest blogger.  My current interests center around federalism.  My posts likely will as well.  Here goes.

Did a vision of progressive federalism die in the desert of Arizona?  No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.

In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism.  We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care.  Here, and elsewhere, I argued that a key to understanding the achievements of the states was to abandon outdated notions of distinct and non-overlapping realms of state and federal prerogative (bye bye dual federalism).  Climate change was not really a federal issue or really a state issue.  Rather, federalism provided an opportunity for both the states and the federal government to address pressing concerns.  Federalism functioned through the dynamic overlap and interaction of state and federal authority.  Or so I argued in my book, Polyphonic Federalism: Toward the Protection of Fundamental Rights.

But where does this leave Arizona?  Or for that matter, the lawsuits filed by numerous state attorneys general against federal health care legislation.  Are these examples of illegitimate state meddling in federal matters or ongoing expressions of dynamic or (as I term it) polyphonic federalism?  The answer is yes.

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Lewis v. Harris II — “civil union” versus “marriage”, one more time

Last month, on behalf of several same-sex couples, Lambda Legal filed a “Petition in Aid of Litigants’ Rights”  with the New Jersey Supreme Court, asking for further relief in Lewis v. Harris, 908 A.2d 196 (N.J. 2006).    The petition argues that the state’s Civil Union Law, created in 2006,  has utterly failed to create the constitutionally required equality for same-sex couples.  It requests the court to revisit the matter forthwith and order the state to recognize marriage for same-sex couples.

In 2006 in Lewis v.  Harris, the court held 7 – 0  that New Jersey’s constitution as a matter of equal protection (although not as a fundamental right) required the state to provide all the rights and benefits of marriage to committed same-sex couples, and also some kind of full legal recognition — the already-existing “domestic partnership” regime, with its limited benefits and different structure, was constitutionally insufficient.  But the court split 4 – 3 on whether to require the legislature to include same-sex couples within the legal definition of marriage, or to permit the legislature in its discretion instead to create a new legal institution for same-sex couples.  The legislature (very quickly) chose the latter course, enacting New Jersey’s Civil Union Law.

Three years later, the March 2010 pleading challenges that law as constitutionally inadequate.  It argues that the separate institution of civil union does not convey to same-sex couples and their families the important though intangible status of marriage, and that the separate-but-equal approach stigmatizes them in an ongoing way; that same-sex couples and their families must expend considerable effort and suffer considerable embarrassment claiming the equal rights that “civil union” is supposed to provide; and that in daily encounters, failures of others to recognize “civil union”, whether inadvertent or deliberate and feigned, regularly result in not being accorded rights and benefits equivalent to those of different-sex married couples, the goal that civil union is required to achieve.

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The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid

By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.