Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘constitutional law’

Court decides Bond v. U.S. narrowly

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.

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Supreme Court and constitutional law roundup

  • 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]

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Politics roundup

  • 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?

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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Cliven Bundy and the U.S. Constitution

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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When AGs decline to defend state laws

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

  • 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

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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Claim: resort’s ban on snowboards violates constitutional rights

“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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