Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘constitutional law’

Same-sex marriage at the Supreme Court: a scorecard

On Tuesday and Wednesday the Supreme Court will hear oral argument on Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.

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.
Read On…

Filed under: , , ,

Bloomberg’s Soda Grab and the Separation of Powers

[cross-posted from Cato at Liberty]

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).

Filed under: , , , ,

Proposals to make gun owners carry liability insurance

“Liability insurance” may be a misnomer, since some of the proposals would require the purchase of bonds against both intentional acts commonly excluded from ordinary liability coverage, and also misadventures for which owners would not presently be held legally responsible (such as third party criminal use of a gun following a theft not occasioned by owner negligence.) [Reuters, Nelson Lund/GMU, Jessica Chasmar/Washington Times, New York Times via Fed Soc, Taranto/WSJ, Josh Blackman]

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.”

Filed under: , ,

Constitutional law roundup

  • Colorado solon’s lawsuit claims direct voter initiatives are unconstitutional. Nice try but no go [Ilya Shapiro]
  • Gail Heriot and Alison Somin on creative interpretations of the Thirteenth Amendment [Fed Soc]
  • Ted Olson’s work on punitive damages provides clue to his approach on originalism [Mike Rappaport]
  • Yes, Prof. Seidman, there is an Origination Clause [Shapiro, my related take]
  • Justice Roberts and legislative deference [PoL]
  • Easterbrook, Barnett and others: video of panel on federalism and federal power [Fed Soc] Constitutional law treatise available free online through Library of Congress [Volokh] New Podcast: Who violates the constitution–statutes or individuals? [Nick Rosenkranz, PoL]
  • National Endowment for the Arts uses creative misreading to conjure up a constitutional charter for its existence [Roger Pilon/Cato]

Filed under: , ,

“Reflections on gun control by a Second Amendment advocate”

From Cato Institute chairman Robert Levy, who was co-counsel in the landmark D.C. v. Heller case. [National Law Journal] More: Trevor Burrus, The Blaze. And the New York Times takes up the topic of guns and suicide, but with some pretty big omissions [Tom Maguire, Ira Stoll/SmarterTimes]

Further: “Senate Judiciary Committee Hears from Cato on Gun Policy” [Ilya Shapiro, citing contributions by David Kopel, Randy Barnett, etc.] And while Bing’s real-time reaction tracker isn’t a scientific voter survey (though the sample size is large, and there’s a partisan breakdown) it seems I was not alone in being put off by President Obama’s demagogic “they deserve a vote” State of the Union wind-up on gun control. [Mediaite]

Filed under: , , , , ,

Can treaties confer on Congress powers otherwise not conferred by the Constitution?

Profs. Rick Pildes and Nicholas Rosenkranz have been debating the topic at Volokh Conspiracy [Pildes first, second; Rosenkranz first, second; more] The pending case of Bond v. U.S. will give the U.S. Supreme Court the chance to revisit Missouri v. Holland, the main precedent on the point [Julian Ku, Ilya Somin, Gerard Magliocca/Concur Op, Michael Greve, earlier here and here] More: Curtis Bradley, Lawfare.

Filed under: ,