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constitutional law

Marking Bill of Rights Day

by Walter Olson on December 15, 2014

Today is the commemoration of Bill of Rights Day. My colleague Tim Lynch says the Third Amendment safeguard against troop-quartering “is one of the few that is in fine shape.”

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No, the Constitution’s Article 4, Section 4 “Republican form of government” clause doesn’t forbid the voters of Colorado from enacting a ballot measure (the “Taxpayer Bill of Rights,” or TABOR) that bars representatives from raising taxes without permission of a popular plebiscite [Ilya Shapiro and Julio Colomba, Cato, SCOTUSBlog, earlier]

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On Monday I moderated a panel at Cato on Damon Root’s splendid new book on the long debate over judicial activism from the Civil War to the present (blurbs). Commenting were prominent legal journalist Jeffrey Rosen, president of the National Constitution Center in Philadelphia, and Roger Pilon, director of Cato’s Center for Constitutional Studies, whose work figures prominently in the book. From the description:

What is the proper role of the Supreme Court under the Constitution? Should the Court be “active” or “restrained”? Or is that even the proper way to look at the question, however much we’ve heard it put that way for several decades now? In his new book, Damon Root traces this debate from the Constitution’s conception to the present. His central focus, however, is on the emergence of the modern libertarian approach, which cuts through the often sterile debate between liberals and conservatives and points to the Constitution itself by way of determining the proper role of the Court under it.

If you’re in D.C., RSVP and register for Cato’s luncheon event on the publication of Damon Root’s Overruled: The Long War for Control of the U.S. Supreme Court. Description:

Featuring the author Damon Root, Senior Editor, OverruledDamonRootReason magazine and Reason.com; with comments by Jeffrey Rosen, Professor of Law, George Washington University, and President & CEO, National Constitution Center; and Roger Pilon, Vice President for Legal Affairs, Cato Institute, and Director, Cato Center for Constitutional Studies; moderated by Walter Olson, Senior Fellow, Cato Institute.

What is the proper role of the Supreme Court under the Constitution? Should the Court be “active” or “restrained”? Or is that even the proper way to look at the question, however much we’ve heard it put that way for several decades now? In his new book, Damon Root traces this debate from the Constitution’s conception to the present. His central focus, however, is on the emergence of the modern libertarian approach, which cuts through the often sterile debate between liberals and conservatives and points to the Constitution itself by way of determining the proper role of the Court under it. Please join us for a refreshing account of this recent history.

Food roundup

by Walter Olson on October 24, 2014

According to an international study, nations that announce a constitutional right to education have on average a lower caliber of schooling: “the relation between the strength of constitutional educational rights and the quality of education is negative and statistically significant.” [Sebastian Edwards and Alvaro Garcia Marin, National Bureau of Economic Research via Tyler Cowen]

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Because the federal gun-disabilities provision in question, 18 U.S.C. § 922(n), kicks in on bare indictment for a felony, as opposed to conviction. [The Blaze] But is that constitutional? [Eugene Volokh, more; earlier on Perry indictment]

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And if so, could/should it be fixed by extending its accommodation requirement to deeply held secular convictions? [Sasha Volokh] Earlier on the Religious Freedom Restoration Act of 1993 here.

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George Leef reviews a new book by John Compton, political scientist at Chapman University, on how evangelical anti-vice campaigns against gambling, liquor and other social ills helped undermine the Constitution’s curbs on centralized power, paving the way for later Progressive gains.

The tension between moral reformers who insisted on a virtually unlimited view of the “police powers” of government (i.e., to regulate in ways intended to protect the health and morals of the citizenry) and the Constitution’s framers, who feared the results of allowing factions to use government power for their ends, was crucial in shaping constitutional law during the 19th and early 20th centuries.

The book shows that by the time the New Deal’s aggressive expansions of federal power came before the Supreme Court, its earlier decisions in favor of approving legislation against liquor and lotteries had so undermined the defenses of property rights, contract, and federalism that it was nearly inevitable that the Court would cave in.

For example, when the Court decided the 1934 case of Blaisdell v. Savings and Loan, gutting the former understanding of the impairment of contracts clause, Chief Justice Charles Evans Hughes cited an earlier decision on interstate shipment of lottery tickets which had acquiesced in a new extension of the police power, on the grounds that a previously sacrosanct constitutional barrier could be “qualified” when a state needed to “safeguard the interests of its people.” [Forbes]

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To the now-famous Obama “pen and phone” formula for circumventing Congress to change the law through executive fiat, columnist Debra Saunders suggests adding “…and teleprompter,” since blaming the opposition seems to be an integral part of the tactic. The President’s flippant, confrontational “so sue me” remark illustrates the problem: even when the executive decrees are not at war with the rule of law, as they often are, they often breach the spirit of comity between the branches.

As Saunders notes in quoting me, there are areas where I find some of the administration’s underlying policy objectives to be sympathetic or understandable — for example, in the effort to adjust banking regulation to accommodate legal marijuana commerce in Washington and Colorado. But “understandably motivated” does not equal “lawful.” On top of all that, many of the executive initiatives, typified by those on labor issues, are truly horrible as policy.

None of which is to endorse proposals to head off the problem by having Congress sue the President. Those will often collide with the Framers’ contemplated role of the courts as adjudicating true cases or controversies arising between parties, not umpiring every power dispute between the other two branches (plus: follow-up Saunders blog post).

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All sitting Presidents try to press the power of their office into doubtful areas. President Barack Obama has been particularly aggressive about doing so, according to the panelists at a May 21 discussion held at the Cato Institute. Georgetown law professor and Cato fellow Nicholas Quinn Rosenkranz noted that the Constitution’s Take Care Clause directs the President to take care that the laws are faithfully executed, and descends directly from centuries of struggle against the “dispensing power” claimed by pre-modern English kings — that is, the power to dispense with enacted legislation entirely where the royal will is better served that way, a claim of power that goes beyond simple prosecutorial discretion or the pardon power.

Rosenkranz pointed to a number of Obama executive actions that are hard to reconcile with the Take Care clause. The text of the Affordable Care Act, for example, states that the employer mandate prescribed by the law was to begin Jan. 1, 2014. “You don’t need a lawyer to interpret this, you need a calendar.” Yet President Obama elected unilaterally to delay the mandate and substitute a later effective date of his own choice. Likewise, the President’s suspension of some immigration regulations overrode the clear letter of U.S. law, aside from any pluses or minuses it may have had as a policy matter.

“President Obama is being the kind of President Nixon wanted to be,” said panelist Jonathan Turley, a well-known legal commentator and law professor at George Washington University: “Many Democrats will rue the day they stood by while the President asserted these kinds of powers.” Panelist Andrew Grossman of Cato said future presidents are likely to follow Obama’s lead and assert their own right to suspend the operation of other laws.

Bonus: At a separate event, Cato welcomed George Mason U. law professor Frank Buckley to talk about his book The Once and Future King: The Rise of Crown Government in America. I offer a question at the beginning of the comment period.

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A jealous wife’s attempt to poison a rival gave the Supreme Court a splendid chance to detoxify a pernicious constitutional law doctrine about the scope of the treaty power, but yesterday the Court passed up the chance. [Earlier.] My colleague Ilya Shapiro explains. Chief Justice Roberts, for the majority: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

P.S. Congratulations to my colleague Nicholas Quinn Rosenkranz and the Cato Institute amicus program (i.e. Ilya Shapiro) for the way Justice Scalia in his concurrence picks up whole chunks of argumentation from Nick’s 2005 HLR article on the treaty power and Cato’s recent amicus brief based on the same line of argument. Also, for those keeping score, this is another embarrassing 0-9 goose-egg defeat for the Obama administration, which once again took a position totally aggrandizing of federal government power and once again could not win for it the vote of even a single Justice. [piece slightly revised for style Tues. a.m.] More: Cato podcast with Ilya Shapiro.

  • Boston’s North End, the home-as-one’s-castle doctrine, and how we got the Fourth Amendment [Ted Widmer, Globe]
  • NYT sniffs at Origination Clause as basis for ObamaCare challenge, but many framers of Constitution saw it as vital [Trevor Burrus, Forbes; Ilya Shapiro; four years ago on another Origination Clause episode]
  • Justice Scalia, concurring in Schuette, knocks the fabled Carolene Products footnote down a peg [Michael Schearer]
  • SCOTUS lets stand New Jersey’s very extreme gun control law. Was it serious about reviving the Second Amendment? [Ilya Shapiro]
  • Didn’t link this earlier: Kenneth Anderson discusses his excellent Cato Supreme Court Review article on Kiobel, the Alien Tort case [Opinio Juris]
  • Kurt Lash guestblogs on 14th Amendment privileges and immunities clause [Volokh Conspiracy]
  • Supreme Court reviving law/equity distinction? (Hope so.) [Samuel Bray, SSRN via Solum]

Politics roundup

by Walter Olson on May 26, 2014

  • NY Assembly Speaker Sheldon Silver hangs blame for a retrospectively unpopular position on the *other* Sheldon Silver. Credible? [NY Times via @jpodhoretz]
  • Julian Castro, slated as next HUD chief, did well from fee-splitting arrangement with top Texas tort lawyer [Byron York; earlier on Mikal Watts]
  • 10th Circuit: maybe Colorado allows too much plebiscitary democracy to qualify as a state with a “republican form of government” [Garrett Epps on a case one suspects will rest on a "this day and trip only" theory pertaining to tax limitations, as opposed to other referendum topics]
  • “Mostyn, other trial lawyers spending big on Crist’s campaign in Florida” [Chamber-backed Legal NewsLine; background on Crist and Litigation Lobby] “Texas trial lawyers open checkbooks for Braley’s Senate run” [Legal NewsLine; on Braley's IRS intervention, Watchdog]
  • Contributions from plaintiff’s bar, especially Orange County’s Robinson Calcagnie, enable California AG Kamala Harris to crush rivals [Washington Examiner]
  • Trial lawyers suing State Farm for $7 billion aim subpoena at member of Illinois Supreme Court [Madison-St. Clair Record, more, yet more]
  • Plaintiff-friendly California voting rights bill could mulct municipalities [Steven Greenhut]
  • John Edwards: he’s baaaaack… [on the law side; Byron York]
  • Also, I’ve started a blog (representing just myself, no institutional affiliation) on Maryland local matters including policy and politics: Free State Notes.

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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, Mike Rappaport at the same, 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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