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constitutional law

Allergic to vetoes?

by Walter Olson on April 22, 2014

President Obama has signed a bill he deems unconstitutional — it purports to (very slightly) restrict presidential authority to receive certain foreign ambassadors on U.S. territory — while issuing a signing statement calling the measure “advisory” [Josh Blackman] If Congress tries to get away with something unconstitutional, isn’t it more consistent with the President’s oath to defend the Constitution for him to veto it rather than sign-and-ignore?

One might sympathize (if not necessarily agree) with a President who gave up and signed a 400-page omnibus funding bill containing an unconstitutional provision on page 237 about the Cedar Rapids post office. But a bill whose whole point is unconstitutional is supposed to be the easy case, no?

More from Michael Ramsey at Originalism Blog and Will Baude at Volokh Conspiracy.

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If you imagine that Nevada rancher Cliven Bundy is some sort of constitutional conservative, Josh Blackman wants to direct your attention to the Property Clause as well as the Supremacy Clause of the (actually existing) U.S. Constitution. He also has some thoughts on the Equal Footing Doctrine (states come into the union on an equal footing to the original 13), and on the rule of law in the context of the alleged right to flout court orders. Earlier here, with many reader comments, and more from Charles C. W. Cooke.

P.S.: Yet more views from Coyote and from Brian Doherty.

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Caleb Brown interviews me for this new Cato podcast on a knotty question: when should a state attorney general decline to argue in court in defense of a law he thinks unconstitutional? On the one hand, the legal profession’s norms strongly favor giving every client and cause its day in court, and practical dysfunction might result were cases routinely handed over to others to defend or dropped entirely. On the other hand, attorneys general like other officials take an oath of office to the constitution, which calls in doubt whether they should (or even may) use their skills on behalf of unconstitutional measures. Complicating matters: how should unconstitutionality be assessed, by way of the AG’s own judgment, by way of predicting how the highest relevant court would rule, or by some other method? What kind of difference should it make whether the assessment appears certain, very probable, or more ambiguous than that?

In recent weeks about a half-dozen Democratic AGs around the country have declined to defend their states’ bans on same-sex marriage, on the grounds that they are inconsistent with the Supreme Court’s Windsor decision of last year, while other AGs both Republican and Democratic have argued in defense of those laws. (Today, Kentucky’s attorney general announced that he will not appeal a federal court ruling requiring the state to recognize out-of-state marriages, although the state’s governor is stepping in to do so.) Finding either liberals or conservatives who have preserved entirely consistent positions on the issue, though, is not always easy. Former attorney general Ken Cuccinelli, a strong conservative, declined to defend a state education reform law last year, while in 2011 Wisconsin Gov. Scott Walker and Attorney General J.B. Van Hollen declined to defend a state domestic partnership registry they deemed unconstitutional. In a case like the latter it was liberals who tended to criticize the refusal to defend a law, and conservatives who applauded — patterns that to some extent have been reversed this time around.

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  • New Yorker legal correspondent Jeffrey Toobin as unreliable narrator, part 483 [Damon Root, Pejman Yousefzadeh re: attack on Justice Clarence Thomas]
  • Background of Halliburton case: Lerach used Milwaukee Archdiocese to pursue Dick Cheney grudge [Paul Barrett, Business Week] More/related: Alison Frankel, Stephen Bainbridge (rolling out professorial “big guns”), Chamber Institute for Legal Reform (paper, “What’s Wrong With Securities Class Action Lawsuits?”)] & update: new Chamber paper on extent of consumer losses;
  • Roger Pilon on NLRB v. Canning recess-appointments case [Cato]
  • States’ efforts to tax citizens of other states stretch Commerce Clause to breaking point [Steve Malanga]
  • Richard Epstein on his new book The Classical Liberal Constitution [Hoover, more; yet more on why Epstein considers himself a classical liberal rather than hard-core libertarian]
  • Corporate law and the Hobby Lobby case [Bainbridge]
  • Some state supreme courts including California’s interpret “impairment of contracts” language as constitutional bar to curbing even future accruals in public employee pension reform. A sound approach? [Sasha Volokh first, second, third, fourth, fifth posts, related Fed Soc white paper]

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I’ve got a post at Cato at Liberty on today’s big decision in Peruta v. County of San Diego, in which a Ninth Circuit panel struck down a licensing scheme under California law in which even persons with legitimate self-defense concerns were unable to get permission to carry handguns outside the home.

More from David Kopel and Eugene Volokh on how “today’s decision creates a split of the Seventh and Ninth Circuits vs. the Second, Third, and Fourth Circuits,” on the court’s reasoning on open vs. concealed carry (an individual right to bear implies that at least one of the two must be allowed), and on how the substantial majority of states already have laws according respect to the freedoms at issue here (& welcome Jim Geraghty/NRO readers; I was also a guest on the Michael Graham Show Friday afternoon to discuss the ruling).

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Presumptions of guilt without actual evidence? It squeaked by at the Supreme Court by only one vote, in a case that should be better known [my new Cato post]

“A group of snowboarders is suing Alta ski resort, claiming its no-snowboards policy violates their constitutional rights. ‘Alta’s snowboarding prohibition was initiated as a result of animus … towards the type of people they believed to be “snowboarders,”‘ claims the lawsuit, filed Wednesday in federal court.” Alta, unlike other ski resorts to ban snowboarding, is on public land. [Salt Lake Tribune, AP]

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Half of them arise from the White House’s ongoing effort to rewrite the terms of ObamaCare on the fly without actually going back to ask Congress to change the law. [Ilya Shapiro, Forbes]

Incidentally, the Executive Branch’s claim of power to suspend various provisions of the ObamaCare law at its whim stands on quite a different and weaker footing, constitutionally, from the well-established tradition of prosecutorial discretion (or the even more well-established power to pardon individual violators). In requiring the president to take care that the laws are faithfully executed, the Constitution’s Take Care clause necessarily implies that not all aspects of law enforcement can be suspended at executive whim, and discretion is necessarily narrower when it comes to the enforcement of statutes creating general civil schemes of private rights and regulation than it is in the realm of criminal enforcement, which necessarily labors under a scarcity of investigative and correctional resources. English kings like James II long asserted a “dispensing power” to suspend the operation of otherwise applicable laws at the royal will, but civil libertarians fought for centuries (and with much success) to cabin and curtail that power. Zachary Price of Hastings recounts some of this history, as well as contemporary readings of the Take Care clause, in a new article that is getting a lot of attention.

While on the topic: ObamaCare’s corporatism is sacrificing both the rule of law and transparency, argues Mickey Kaus [first, second] The program’s atomistic individualism [David Boaz] And Megan McArdle on the Administration’s “willingness to take large risks with the program’s stability” by altering rules.

I’ve long found it exasperating when would-be lawmakers take the view that it’s okay for them to vote for measures that might be unconstitutional because, after all, the courts are there to backstop things. The Michigan businessman who’s challenging Rep. Justin Amash in a Republican primary is just out with a particularly flagrant quote along those lines to which I respond at Cato at Liberty.

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Whence Congress enacted and President Obama signed the NOEL law (Naughtiness Obliteration and Elimination Law of 2012):

…(1) Imposes a naughtiness “fee” of $50 upon each American child for every documented instance of their “naughtiness.” Revenues from this “fee” are to support the Federal Nice Fund (FNF), a newly created fund for public-works projects in NOEL-compliant states. (NOEL, § 3(a).)…

(4) To ensure full compliance, the NOEL bars any “person, group, or agency” that receives “funding, or any benefit from the federal government” from making a “material naughtiness determination” contrary to rules promulgated by the NRB, with the consequence of such a contrary determination being withdrawal of the federal funding and/or other benefit. (Id., § 22(z)(12)(F)(vii)(¥)(‰) (LOL)(¿)(?)(D).)…

Relax. It’s not real (yet). It’s just Prof. Kyle Graham’s constitutional law exam holiday card.

  • Now available: 2012-13 edition of the celebrated Cato Supreme Court Review. And full video of Cato’s Constitution Day, at which many of the CSCR authors spoke, is up here;
  • Is a hearing necessary if prosecutors freeze assets needed to pay defense lawyers? Court hears argument in forfeiture, money laundering case Kaley v. U.S. [ABA Journal, Jacob Sullum, Scott Greenfield, Harvey Silverglate]
  • Court grants certiorari in greenhouse-gas case Utility Air Regulatory Group v. EPA [Jonathan Adler, Richard Faulk]
  • Ilya Somin briefly reviews three new books on constitutional law: John McGinnis and Michael Rappaport on originalism, Randall Kennedy on affirmative action, and Clark Neily on judicial engagement [Volokh]
  • General jurisdiction: “Justices Wrestle With Whether California Law Reaches A Mercedes Plant In Argentina” [Daniel Fisher]
  • Home Building & Loan Ass’n v. Blaisdell (1934) eviscerated the Contracts Clause, right? Well, it’s complicated [Gerard Magliocca]
  • Much-noted interview with Justice Scalia [New York mag] Is there a conservative jurisprudence bubble? [Daniel McCarthy] New opera “Scalia/Ginsburg” [Washington Post]
  • “The Fiduciary Foundations of Federal Equal Protection” [Gary Lawson, Guy Seidman, & Robert Natelson, SSRN]

It’s debunked by Adam Liptak’s sources in a good piece this weekend: “If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.” [New York Times; Jonathan Adler] More: Watch author Clark Neily, cited in Liptak’s article, speak recently at Cato about his new book Terms of Engagement.

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Three new books

by Walter Olson on October 3, 2013

No fewer than three friends of Overlawyered (and I’m probably forgetting some) have new books out on constitutional law and political theory. Clark Neily has just published Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government (more), Ilya Somin has just published Democracy and Political Ignorance: Why Smaller Government Is Smarter (review), and Josh Blackman has just published Unprecedented: The Constitutional Challenge to Obamacare (review; triple mini-review by Tim Sandefur of all three books with preview of two more). Congratulations to all!

Supreme Court roundup

by Walter Olson on August 30, 2013

  • Now with more detailed program descriptions: reserve your seat now for Cato’s 12th annual Constitution Day Sept. 17 in Washington, D.C.;
  • White House keeps losing SCOTUS cases 9-0, and there might be a lesson in that [Ilya Somin/USA Today, more]
  • “Another big term for amicus curiae briefs at the high court” [ABA Journal] “The Chief’s dissent reads over long stretches like something from the Cato Institute” [Michael Greve, Liberty Law Blog, on the administrative law case City of Arlington v. FCC, which was in fact one of the three cases where Cato's amicus position lost last term]
  • Ilya Shapiro on misconceptions about last term’s Shelby County case on voting rights [USA Today] and on the pending Schuette affirmative action case from Michigan [Cato]
  • “I count myself an originalist too.” — Justice Ruth Bader Ginsburg [CAC] Evaluating Ginsburg’s claim that the present Court is unusually activist [Jonathan Adler]
  • In Bond v. U.S., the treaty power case, Solicitor General urges high court not to overrule Missouri v. Holland [Nicholas Quinn Rosenkranz, more, earlier]
  • Cato seeks certiorari in cy pres (class action slush fund) case involving Facebook [amicus brief filed in Marek v. Lane, Ilya Shapiro]

I’m quoted in this report today in the Washington Times by Annie Yu:

“It’s often not realized that much of the civil rights movement in the 20th century was a movement for economic liberty against economic restrictions,” said Walter Olson, senior fellow at the Cato Institute’s Center for Constitutional Studies. “Many of the landmark decisions in the courts were on the basis of economic liberty.”

David Bernstein of George Mason has written in detail about how the old Jim Crow system was based on massive regulation of private economic decision-making, and how reformers often managed to chip away at it in court by invoking rights of contract, property, and free association. A sampling here and here (Buchanan v. Warley), here (labor regulations, and related), here, and in papers here.

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Writing at the New Republic, Simon Lazarus of the left-leaning Constitutional Accountability Center says “the recent surge of libertarianism among conservative academics, advocates, politicians and, of course, voters… has shown up among court-focused conservative constituencies and advocates and begun to register at the Supreme Court.” He cites the Cato Institute’s remarkably successful amicus curiae season (mentioned earlier in this space) and discerns in the majority an “appetite for doctrinal resets aimed at crippling federal regulatory power.”

In response, Randy Barnett, whose writings have been influential in advancing what libertarian tendencies may exist on the Court, writes “I wish it were so. … For a few reasons, the Court has become more ‘libertarian’ than its members.” Ilya Somin disputes Lazarus’s claim that the ObamaCare challenge invited the Court “‘to junk the “New Deal settlement” that bars constitutional interference with regulatory and safety net legislation.’ Even if the challengers had prevailed on every point at issue in that case, Congress would still have sweeping authority to regulate virtually any ‘economic activity,’ and state governments would have even greater regulatory authority than that.”

The new four-judge decision is unanimous, which means every judge to consider the matter has now agreed that the NYC Department of Health overstepped its legal powers. And they’re right, as I explain here at Cato. Earlier here, here, here, etc.

One person who presumably had not expected today’s result is Emily Bazelon at Slate, who has claimed that Judge Milton Tingling’s trial-court decision was somehow a venture into conservative activism. None of the New York appellate judges heard from today give evidence of sharing that view.

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In my new CNN.com piece I argue that we shouldn’t let anger over the Zimmerman acquittal shred the rights of criminal defendants: “awarding new powers to prosecutors will likely mean that more black people will end up behind bars.” [CNN](& Steele; thanks for Instalanche to Glenn Reynolds)

P.S. Some may wonder whether a toughening of hate crime laws might be an exception to the general rule that minorities have much to fear from a broadening of grounds for prosecution. Leaving aside whether the hate crime issue has any relation to the Martin/Zimmerman case (few lawyers believe Zimmerman could be found guilty of a hate crime, and when the FBI investigated him last summer it found no evidence of racial motivation; more on this from Michelle Meyer), per FBI statistics for 2011, blacks are actually overrepresented among persons charged with hate crimes, at 21 percent compared with 14 percent of general U.S. population.

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