Overlawyered » constitutional law http://overlawyered.com Chronicling the high cost of our legal system Wed, 16 Apr 2014 09:50:27 +0000 en-US hourly 1 http://wordpress.org/?v=3.8.1 When AGs decline to defend state laws http://overlawyered.com/2014/03/ags-decline-defend-state-laws/?utm_source=rss&utm_medium=rss&utm_campaign=ags-decline-defend-state-laws http://overlawyered.com/2014/03/ags-decline-defend-state-laws/#comments Tue, 04 Mar 2014 18:44:44 +0000 http://overlawyered.com/?p=44344 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 […]

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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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Supreme Court and constitutional law roundup http://overlawyered.com/2014/02/supreme-court-constitutional-law-roundup-5/?utm_source=rss&utm_medium=rss&utm_campaign=supreme-court-constitutional-law-roundup-5 http://overlawyered.com/2014/02/supreme-court-constitutional-law-roundup-5/#comments Mon, 24 Feb 2014 04:05:20 +0000 http://overlawyered.com/?p=43929 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 […]

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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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    Ninth Circuit recognizes right to carry arms http://overlawyered.com/2014/02/ninth-circuit-recognizes-right-carry-arms/?utm_source=rss&utm_medium=rss&utm_campaign=ninth-circuit-recognizes-right-carry-arms http://overlawyered.com/2014/02/ninth-circuit-recognizes-right-carry-arms/#comments Thu, 13 Feb 2014 22:13:44 +0000 http://overlawyered.com/?p=44007 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 […]

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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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    A constitutional showdown for the Drug War — in 1928 http://overlawyered.com/2014/01/constitutional-showdown-drug-war-1928/?utm_source=rss&utm_medium=rss&utm_campaign=constitutional-showdown-drug-war-1928 http://overlawyered.com/2014/01/constitutional-showdown-drug-war-1928/#comments Sat, 25 Jan 2014 12:27:05 +0000 http://overlawyered.com/?p=43650 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] Tweet Tags: constitutional law, illegal drugs, Supreme Court

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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]

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    Claim: resort’s ban on snowboards violates constitutional rights http://overlawyered.com/2014/01/claim-resorts-ban-snowboards-violates-constitutional-rights/?utm_source=rss&utm_medium=rss&utm_campaign=claim-resorts-ban-snowboards-violates-constitutional-rights http://overlawyered.com/2014/01/claim-resorts-ban-snowboards-violates-constitutional-rights/#comments Mon, 20 Jan 2014 18:07:18 +0000 http://overlawyered.com/?p=43541 “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 […]

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    “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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    “President Obama’s Top Ten Constitutional Violations of 2013″ http://overlawyered.com/2013/12/president-obamas-top-ten-constitutional-violations-2013/?utm_source=rss&utm_medium=rss&utm_campaign=president-obamas-top-ten-constitutional-violations-2013 http://overlawyered.com/2013/12/president-obamas-top-ten-constitutional-violations-2013/#comments Tue, 24 Dec 2013 04:07:14 +0000 http://overlawyered.com/?p=43165 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 […]

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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.

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    Voting for unconstitutional laws, and a lawmaker’s oath http://overlawyered.com/2013/12/voting-unconstitutional-laws-lawmakers-oath/?utm_source=rss&utm_medium=rss&utm_campaign=voting-unconstitutional-laws-lawmakers-oath http://overlawyered.com/2013/12/voting-unconstitutional-laws-lawmakers-oath/#comments Mon, 16 Dec 2013 18:25:51 +0000 http://overlawyered.com/?p=43064 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 […]

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    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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    Findings: “there exists an epidemic of naughtiness among the nation’s children…” http://overlawyered.com/2013/12/findings-exists-epidemic-naughtiness-among-nations-children/?utm_source=rss&utm_medium=rss&utm_campaign=findings-exists-epidemic-naughtiness-among-nations-children http://overlawyered.com/2013/12/findings-exists-epidemic-naughtiness-among-nations-children/#comments Sat, 07 Dec 2013 15:10:57 +0000 http://overlawyered.com/?p=42899 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 […]

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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.

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    Constitutional and Supreme Court roundup http://overlawyered.com/2013/10/constitutional-supreme-court-roundup/?utm_source=rss&utm_medium=rss&utm_campaign=constitutional-supreme-court-roundup http://overlawyered.com/2013/10/constitutional-supreme-court-roundup/#comments Mon, 28 Oct 2013 04:05:52 +0000 http://overlawyered.com/?p=42101 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, […]

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  • 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]
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    The Roberts Court’s supposed activism http://overlawyered.com/2013/10/roberts-courts-supposed-activism/?utm_source=rss&utm_medium=rss&utm_campaign=roberts-courts-supposed-activism http://overlawyered.com/2013/10/roberts-courts-supposed-activism/#comments Mon, 14 Oct 2013 19:17:05 +0000 http://overlawyered.com/?p=41924 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, […]

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    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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