Disabled rights roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“Executive Branch Review” is a post from Overlawyered - Chronicling the high cost of our legal system

When a litigant pleads the Fifth Amendment is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law and Supreme Court roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court marriage cases: the week ahead is a post from Overlawyered - Chronicling the high cost of our legal system

The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.

The Cato Institute, with which I’m affiliated, has filed amicus briefs in both cases. In its active amicus program Cato has long taken a broad view of Equal Protection Clause protections, and in this case joined with the Constitutional Accountability Center to file briefs in Perry and Windsor urging that marriage be made available without distinction of sex on Equal Protection grounds. (It’s an “odd-couple” alliance in that CAC is known for its progressive view of the Constitution and regularly winds up on the opposite side from Cato on other high court issues such as ObamaCare and campaign finance.) Ilya Shapiro discusses Windsor and Perry; Constitutional Law Prof Blog provides an analysis of the Cato/CAC Windsor brief.

The Heritage Foundation, which of late has crusaded against same-sex marriage on both legal and substantive grounds, collects and summarizes some of the many briefs filed by those on its side of the controversy.

Quite a few scholars and public commentators have invoked federalism and called attention to possible resolutions that defer to the various states. A “federalism scholars’ brief” in DOMA (described here by Ilya Shapiro) signed by, among others, four law professors who blog at Volokh Conspiracy (Jonathan Adler, Dale Carpenter, Randy Barnett, and Ilya Somin) supports striking down section 3 of DOMA not directly on Equal Protection grounds, but because of its attempt to inject federal policy into a field (domestic relations) historically occupied by state law. [More: Jonathan Adler exchange with Nicholas Rosenkranz and Ed Whelan.]

Separately, in a Wall Street Journal piece, widely respected Stanford law professor and former judge Michael McConnell writes that the pair of cases “offers the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making.” To do that, he suggested the Court might want to dodge Perry on standing grounds while upholding Windsor on the ground “that DOMA improperly intrudes on the reserved powers of the states.” Syndicated columnist George Will, who is critical of the attempt to invoke social science as a reason to overturn Prop 8, calls DOMA an intrusion on traditional state law and suggests that “a jurisprudence true to conservative principles, properly understood” would get rid of it.

The Federalist Society has a symposium with two defenders of Prop 8/DOMA (John Eastman and Nelson Lund) and two critics (Dale Carpenter and Ilya Shapiro). Libertarian law professor Richard Epstein finds originalism at odds with liberty in the cases. Ilya Somin, tracking Georgetown’s Marty Lederman, outlines the Court’s options in the Prop 8 case.

Some of the amicus briefs on the traditionalist side invoke the “gay marriage is bad for children” argument, which I’ve contested before. Recent revelations confirm suspicions that in the rush to publication of the extremely controversial Mark Regnerus study, often misrepresented as indicating bad outcomes from same-sex parenting, use in Supreme Court argumentation was one consideration.

In the coming week I’ll be doing public events in Washington, D.C. as well as broadcast commentary on the unfolding story. I’ll tackle those in another post. (Title elaborated to be less generic.)(& welcome Doug Mataconis/Outside the Beltway readers)

Same-sex marriage at the Supreme Court: a scorecard is a post from Overlawyered - Chronicling the high cost of our legal system

No, it wasn’t “activist” to strike down Bloomberg’s soda ban is a post from Overlawyered - Chronicling the high cost of our legal system

I’m at the Commentary magazine blog this morning with a second bite (second gulp?) at the NYC soda ban ruling. This time I look at the separation-of-powers angle, and at the way Judge Milton Tingling, Jr.’s ruling addressed the overgrown ambitions of some in the “public health” community to control more and more of life. Although the decision did not forestall the New York City Council from adopting nanny-state regulations in the future should it see fit, I argue,

…yesterday’s decision should cheer us for other reasons. It holds the Gotham administration accountable for overstepping the separation of powers, an important principle in the safeguarding of liberty. (In a profile of Judge Tingling, the New York Times notes that he’s been skeptical of government claims to power in a number of other cases as well.)

Under separation of powers as generally understood at the time of the Framers, an executive agency cannot enact new legislation on its own, that being a role constitutionally reserved for the legislature. Especially during the Progressive Era and New Deal, these barriers were eroded as administrative agencies claimed a power to issue regulations that looked more and more like traditional legislation, under powers deemed to have been delegated by the legislature. Still, there are some limits, both under the U.S. Constitution and in New York (which under a 1987 case called Boreali v. Axelrod applies its own, quirky standard in evaluating whether a regulation oversteps the separation of powers.) And those limits to delegation were at the heart of the soda case.

The New York City Health Department was asserting a breathtakingly broad definition of its powers, on the grounds that successive city charters give it sweeping authority to address all matters relating to health. Under the interpretation advanced by Bloomberg’s lawyers, this vague charter language would empower the department to issue pretty much whatever diktats it pleases for New Yorkers to obey on any topic somehow related to advancing health….

Looking at cases where the agency’s authority to act had been upheld, the judge noted instances of emergencies, particularly those relating to epidemics of contagious or communicable diseases. … In that legal finding is the germ of a much-needed rebuke to some actors in the public-health movement, who have taken the centuries of moral and practical authority originally built up by their colleagues from the fight against epidemic infectious disease and dubiously sought to apply it to a dozen other health-related questions of life and lifestyle, including not only doughnuts, soft drinks and salty snacks but also such supposed “disease vectors” as gun ownership and overreliance on cars for commuting.

Read the whole thing at Commentary here. Background in yesterday’s post here (& Alex Adrianson, Heritage).

Bloomberg’s Soda Grab and the Separation of Powers is a post from Overlawyered - Chronicling the high cost of our legal system

Would a mandatory insurance scheme survive judicial scrutiny if it were motivated by a desire to burden the exercise of a constitutional right? David Rifkin and Andrew Grossman, WSJ:

Several states… are considering gun-insurance mandates modeled after those for automobile insurance. There is no conceivable public-safety benefit: Insurance policies cover accidents, not intentional crimes, and criminals with illegal guns will just evade the requirement. The real purpose is to make guns less affordable for law-abiding citizens and thereby reduce private gun ownership. Identical constitutionally suspect logic explains proposals to tax the sale of bullets at excessive rates.

The courts, however, are no more likely to allow government to undermine the Second Amendment than to undermine the First. A state cannot circumvent the right to a free press by requiring that an unfriendly newspaper carry millions in libel insurance or pay a thousand-dollar tax on barrels of ink—the real motive, in either case, would be transparent and the regulation struck down. How could the result be any different for the right to keep and bear arms?

(& slightly expanded/adapted version at Cato; The Hill “Blog Briefing Room”)

P.S. The American Insurance Association is opposed to the more ambitious versions of the idea, at least: “Property and casualty insurance does not and cannot cover gun crimes.”

Proposals to make gun owners carry liability insurance is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system