In the case of a federal law providing for the mandatory deportation of lawful permanent residents convicted of a hazily defined “crime of violence,” Justice Neil Gorsuch steps comfortably into Nino Scalia’s shoes as the Court’s champion of void-for-vagueness invalidation of criminal laws whose contours were left overly unclear. “It doesn’t make him a squish. It makes him an originalist,” [Ilya Shapiro, Washington Examiner; opinion in Sessions v. Dimaya] More: Jay Schweikert, Cato.
Posts Tagged ‘constitutional law’
Ninth Circuit finds public sector contingency fees constitutional
The use of contingency fees by governmental plaintiffs incentivizes sharp practice and overzealous litigation in lawyers charged with representing the general public; it also invites corruption and end runs around democratic legislatures intended at making law through litigation. All these evils manifested themselves in the tobacco and gun rounds of mass litigation, and there are some cases offering precedent for the proposition that their use can violate defendants’ rights to due process. Nonetheless, the Ninth Circuit has lately upheld a California district attorney’s hiring of outside law firms on a contingency basis against such a challenge [Amanda Bronstad, The Recorder] And the Supreme Court last month refused to review a challenge to the New Hampshire attorney general’s use of contingency-fee counsel in an opioids suit against Endo Pharmaceuticals [Peter Hayes and Steven M. Sellers, Bloomberg, in a piece surveying current use of public contingency fees more broadly]
March 14 roundup
- “Special economic zones can be anything from tools of crony capitalism to seeds of a freer world order.” [Tom W. Bell on The Political Economy of Special Economic Zones by Lotta Moberg]
- 33 state constitutions have “baby Ninths,” which like federal version suggest existence and protection of some unenumerated individual rights. Potential there [Anthony B. Sanders, Rutgers Law Review forthcoming/SSRN]
- Judge hears argument on Seattle law ordering landlords to accept first otherwise qualified tenant who applies [Heidi Groover/The Stranger, earlier]
- Labeling of food, other products as “natural” helps keep class action lawyers in business [Julie Creswell, New York Times]
- SESTA, FOSTA, and trafficking: L.A. Times editorial warns on dangers of abridging Section 230 protections for Internet freedom [earlier here, here, etc.]
- Saga of Zen Magnets versus the CPSC, told in detail [Alan Prendergast, Westword (Denver); earlier; related, Nancy Nord]
$850 million Minnesota 3M settlement
In a $850 million settlement of environmental claims by the state of Minnesota against 3M, private attorneys hired by the state will get $125 million, and the settlement fund is structured so as to evade the legislative appropriations power [Youssef Rddad, AP/St. Paul Pioneer Press]
When speaking of rights
When speaking of rights, note that the word “right” “means many things, and has long meant many things.” A statement such as “Governments do not have rights, only individuals have rights” might cohere and be worth discussion as an claim of political philosophy, but does not accurately track the usage of the word “rights” in the Anglo-American legal system, now or in the past. [Eugene Volokh, post series one, two, three, four]
Administrative law roundup
- “”Administrative State Is THE Leading Threat to Civil Liberties of Our Era'”: Nick Gillespie interview with Philip Hamburger at Reason;
- Beyond the deference debates: White House Counsel Don McGahn speaks on Chenery I v. Chenery II, fair notice and retroactivity [Aaron Nielson, Yale Journal on Regulation “Notice and Comment”; related, Josh Blackman] Federalist Society convention videos includes panels on the administrative state and agencies and the judiciary with Steven Calabresi and Gillian Metzger, Congress with C. Boyden Gray and Keith Whittington, the executive branch with Susan Dudley and Neomi Rao, and recent regulatory rollbacks with John Allison and Philip Hamburger;
- Michael Rappoport writing at Law and Liberty lately on such topics as reconfiguring administrative law to promote deregulation, a reformed REINS Act, insisting on stricter separation of powers within agencies including adjudication, and deference doctrines including Chevron (contra preferentum? No thanks), Auer (shares Chevron’s faults) and Skidmore (demonstrations of agency expertise). And Michael Greve on some historical and comparative-law perspectives;
- CSAS (George Mason/Scalia Law) December conference on judicial review of agency action with papers by Jerry Ellig and Reeve Bull, Kristin Hickman and Mark Thomson, Aaron Nielson, Nicholas Parrillo, and Jeffrey Pojanowski, full conference and video links with Andrew Grossman, Adam White, and many others;
- Manipulable: recent Section 8 housing case points up “how easily courts can side-step Auer deference if they have a mind to do so” [Rick Hills, PrawfsBlawg]
- Digital Realty v. Somers, on SEC definition of Dodd-Frank whistleblower, could give Justice Gorsuch an opening to strike blow against excessive judicial deference to agencies [Ilya Shapiro]
Judge dismisses CREW Emoluments Clause suit for lack of standing
In February I predicted that CREW’s lawsuit attempting to enforce the Constitution’s Emoluments Clause against President Trump would founder on problems of standing. Sure enough, yesterday U.S. District Judge George Daniels dismissed the suit for lack of standing. Coverage: Peter Overby/NPR, Chris Geidner/BuzzFeed.
The not-so-rapid implosion of the Contracts Clause
In conventional legal histories of the New Deal-era Supreme Court, the 1934 case of Home Building Association v. Blaisdell symbolizes the overthrow of the courts’ willingness to enforce the Constitution’s language providing that “No State shall…pass any…Law impairing the Obligation of Contracts.” The Court by a 5-4 margin upheld as lawful a Minnesota law enforcing a moratorium on many mortgage obligations. But in fact, argues David Forte at the Federalist Society Review, the decline and fall of the Clause was more complicated. Blaisdell or no, the Court for years continued to strike down many state laws that impaired contracts, and the justices of the Court’s liberal wing sometimes joined, as in Worthen v. Thomas, a unanimous case disallowing Arkansas’s impairment of certain contract rights. It was not until 1945 that Justice Felix Frankfurter retrospectively contrived to interpret Blaisdell as a sweeping repudiation of the older Constitutional order, ushering in the modern era in which few state laws are struck down. It was effectively an act of will by the then Court — and one that could be reversed should there develop will to the contrary.
Supreme Court and constitutional law roundup
- “The justices tackle partisan gerrymandering again: In Plain English” [Amy Howe, SCOTUSBlog, earlier on Gill v. Whitford here and here] SCOTUS declines to speed up review of Maryland gerrymander, and what that could mean for wider issue [Lyle Denniston]
- Reversal of fortune: firing back on the Hamilton angle in Emoluments Clause fight [Josh Blackman on new filings countering previous Hamilton claims, Prof. Jed Shugerman’s apology, Adam Liptak]
- From Usery to Garcia to commandeering: better for SCOTUS to respect states’ core sovereignty [Nick Dranias, Liberty and Law]
- Cato Unbound roundtable on religious liberty with Ilya Shapiro, David Gans, Robin Fretwell Wilson, and K. Hollyn Hollman; related 2016 conference and new volume from Cato, Deep Commitments; 2016 religious liberty report from U.S. Conference on Civil Rights (note in particular separate statements and rebuttals by commissioners including Gail Heriot);
- Panel on expected trends in federal courts with Republican nominations: Randy Barnett, Richard Epstein, Adam White, James Copland [Manhattan Institute] At 23:35, White refers to Scalia’s 1981 “Regulatory Reform: The Game Has Changed” on how party control change implies playbook change in seeking regulatory reform, while Epstein at 28:00 cites his own exchange with Scalia;
- SCOTUS should apply papers and effects language of Fourth Amendment to protect data records as property [Ilya Shapiro]
Constitution Day at Cato
September 17 marks Constitution Day. One of the wonderful things about being at Cato is that my work encourages me to write about constitutional law regularly, which means constantly learning new things about the founding document by studying it and commentaries on it.
Over the past year I’ve written about the Emoluments Clause; the No Religious Tests clause; limits on presidential power as defined in the steel seizure case; the meaning of the oath of office; how the Appropriations Clause constrains lawsuit settlements involving the federal government; how and whether gerrymandering by race and for partisan advantage affects constitutional rights; judicial independence; the decline and fall of the Contracts Clause; the application of Obergefell to issues of public employees and birth certificates; Article V procedure for calling a new constitutional convention; and too many First, Second, Fourth, and Fifth Amendment controversies to list.
The U.S. Constitution is very much alive, not in the Living Constitution caricature of a document emptied of most durable or objective meaning, but in the sense that most persons in charge of all three major branches of the federal government and state and local government, whichever their party, continue to try to act by its guidance according to their lights, however unnerving and lamentable the occasional exceptions may be.
Today (Monday) you can tune in online to Cato’s annual Constitution Day symposium. I’ll be moderating the afternoon panel on property rights and religious liberty (the Murr and Trinity Lutheran cases, and no, it’s not clear that we need to find any actual connection between them).