Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘constitutional law’

“It’s Irrational to Require 1,000 Hours of Training to Be Able to Braid Hair”

Ilya Shapiro and David McDonald describe the background of the Eighth Circuit case of Niang v. Carroll, in which Cato has filed an amicus brief:

…the Missouri Board of Cosmetology and Barber Examiners (an administrative board made up primarily of practicing barbers and cosmetologists, as well as the owners of in-state cosmetology/barbering schools) has declared that anyone wanting to braid hair professionally must be a licensed cosmetologist or barber—despite the fact that neither licensing program offers any training whatsoever in the [African hair-braiding] services [Ndioba “Joba”] Niang and [Tameka] Stigers intend to offer. Defended as necessary to protect Missouri’s consumers from the health, safety, and fraud risks caused by untrained hair braiders, this licensing regime is actually a thinly disguised cartel in which insiders have built up arbitrary and expensive licensing requirements in an effort to limit competition.

Pacific Legal Foundation and Goldwater Institute have also taken an interest in the Niang. case. Relatedly, Scalia/George Mason law professor recently published an article in the Yale Law Journal Forum, “The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?” For decades courts reviewed occupational licensure laws under a very relaxed rational basis test under which challengers were unlikely to succeed unless they could point to, say, a violation of the Bill of Rights. “Recent precedent, however, suggests that courts are becoming more protective of what has traditionally been considered a subset of liberty of contract: the right to pursue an occupation.” Prof. Bernstein (via his Volokh blogging) also has an interview with Reason on the ideas in the piece.

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…and gerrymandering by race at the Supreme Court

Yesterday, in Bethune-Hill v. Virginia State Board of Elections, the Supreme Court ruled unanimously that a lower court had been too indulgent toward race-based drawing of district lines, a process subject to scrutiny under the Equal Protection Clause. Although the decision makes at most a small difference in the law, I write at Cato that the Court’s relatively unified stand serves as a testament to the far-sightedness of Justice Sandra Day O’Connor, who was roundly excoriated in the New York Times and elsewhere after warning in a landmark 1993 decision that “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions.” Two more views: Rick Hasen, Richard Pildes. (Also reprinted Newsweek; and see Kimberly Strawbridge Robinson, BNA Bloomberg coverage, thanks for quotes).

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Constitutional law roundup

  • Congress’s enumerated powers don’t extend to making this local bar fight a federal hate crime [Ilya Shapiro on Cato brief in United States v. Metcalf, Eighth Circuit]
  • On this point, at least, history’s verdict went with President Andrew Johnson: Congress can’t entrench Cabinet officers if the President no longer wants them to serve [Mental Floss]
  • “Video: Ilya Shapiro on judicial abdication and the growth of government” [Acton Institute]
  • “Our decision is about the First Amendment, not the Second.” Eleventh Circuit en banc strikes down Florida law restricting doctors’ speech with patients about guns [Eugene Volokh; quote is from Pryor concurrence in Wollschlaeger v. Governor]
  • In the mail: paperback reissue of Michael Stokes Paulsen and Luke Paulsen, The Constitution: An Introduction [Basic]
  • “Federal Appeals Court Nixes Blanket Drug Screening of State College Students” [Jacob Sullum]

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Civics 101 podcast: “How to Amend the Constitution”

I joined Virginia Prescott for episode 4 of the interesting Civics 101 podcast series, hosted by New Hampshire Public Radio, this one covering the Article V constitutional amendment process. You can also find it at NPR and AudioBoom. Description:

It’s been 25 years since the last constitutional amendment was ratified. How hard is it to change our most sacred document? We discover that there are not one, but two ways to amend the constitution – and one of them has never been used. Walter Olson, senior fellow of the Cato Institute explains that the founders didn’t exactly spell the process out clearly.

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Stupid but constitutional

David Lat, in a brief assemblage of Antonin Scalia anecdotes, gives this one:

“…A lot of stuff that’s stupid is not unconstitutional.”

“I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.”

And now the Twitter user has posted a relevant picture [link now broken].

P.S., a Twitter exchange shedding more light:

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Emoluments Clause lawsuits likely to fizzle

My first piece for Quartz: why lawsuits over President Trump’s foreign business interests are likely to be more a nuisance than a knockout blow, even if his opponents identify potential violations of the Emoluments Clause. Excerpt:

Two aspects of the Clause in particular must be causing Trump’s lawyers angst: It’s worded as a no-fault provision, and it sets no minimum threshold. That means a present or emolument could tip the scales, even if it’s meant innocently on both sides and is very small. And the realities of an international hospitality and real estate business make for lots of possible triggers both large and small.

Even if Trump fails to comply with the Clause, however, the courts aren’t obliged to provide a broad remedy. A case that manages to get over the standing hurdle might result in a narrow ruling ordering the president’s business, say, to refund a single disputed payment. Before resorting to wider injunction powers, as groups like CREW urge, judges would need to consider what’s known as the political question doctrine under which the courts have chosen to say out of some issues they see as better suited for other branches of government—or for voters—to address.

Earlier here and here.

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Emoluments Clause suit likely to run aground on standing

A fresh-outta-the-gate lawsuit asks the courts to step in to prevent President Donald Trump from violating the Constitution’s Emoluments Clause through his business dealings. So, Josh Blackman asks, what’s its argument for standing under Article III? Basically, it’s that “because CREW is spending time on Trump’s emolument issue, they are not able to do things they would otherwise do.” That’s remarkably weak, even under what’s left of such liberal precedents as Havens Realty Corp. v. Coleman (1982), and unlikely to persuade the courts. The ACLU is biding its time while preparing a stronger eventual case for standing by looking for a hotel or other competitor that can plausibly claim to have lost business because of transactions involving the Trump Organization and foreign states that (it expects to argue) violate the clause. Even if litigants succeed in obtaining standing in some case, they will still face a daunting barrier in the state of the doctrine on justiciability and political questions, which could lead the courts to step back and defer to Congress as the appropriate branch to devise a remedy. Earlier here.

More: Jonathan Adler on Twitter comes to similar conclusions about standing — “It’s as if complaint is just a PR exercise” — and notes that Prof. Erwin Chemerinsky, who backs the new suit, argued earlier that Texas and other states, for lack of injury, had no standing to challenge the Obama administration’s DAPA immigration action. “If no standing because Texas had ‘choice’ not to issue drivers licenses, CREW has a choice not to worry about emoluments.” And from Derek Muller:

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Trump’s business interests and the Emoluments Clause

Given the complex ongoing dealings between the Trump Organization and foreign governments, the Emoluments Clause of the Constitution will require Congress to “decide what it is willing to live with in the way of Trump conflicts” — and it should draw those lines before the fact, not after. That’s what I argue in a new Philadelphia Inquirer piece. Excerpt:

…Trump points out that the president is exempt from the conflict-of-interest laws that bind Congress and the judiciary, but that doesn’t mean he will escape scrutiny from public opinion or from the body of federal law as a whole, including the Emoluments Clause.

That clause reads in relevant part: “And no Person holding any Office of Profit or Trust under [the United States] , shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”…

The wording of the clause itself points one way to resolution: Congress can give consent, as it did in the early years of the Republic to presents received by Ben Franklin and John Jay. …

…it can’t be good for America to generate a series of possible impeachable offenses from a running stream of controversies about whether arm’s-length prices were charged in transactions petty or grand. …

There is no doubt that doing the right thing poses genuine difficulties for Trump not faced by other recent presidents. If he signals that he understands the nature of the problem, it would not be unreasonable to ask for extra time to solve it.

For more detail, Randall Eliason has a helpful explainer, e.g. on why Emoluments Clause issues do not map well onto the concept of “bribery.” (Bribery is subject to a separate ban, while both presents and some other payments can violate the Emoluments Clause even if given and received with the purest of motives.)

Update: With Trump’s announcement this morning that he intends to step back from management involvement with the Trump Organization, I’ve adapted this post into a longer piece at Cato at Liberty on what comes next. I quote Prof. Bainbridge, who’s got a second round of observations here.

Yet more: memos shed light on how the Department of Justice has construed the obligations of the Emoluments Clause over many decades. And the Washington Examiner, which recently welcomed Tim Carney as new opinion editor, suggests an “occluded trust.”

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Clint Bolick on state constitutions

Some state constitutions predate the U.S. Constitution, and many provide broader protection for individual rights and tougher constraints on government action than does the federal document. Aside from differently worded provisions on such matters as takings for public use and firearms liberty, for example, some states have “gift clauses” in their constitutions that have been interpreted to prohibit corporate subsidies, or clauses prohibiting legislation meant to advance parochial or local interests alone. Justice Clint Bolick of the Arizona Supreme Court speaks with Cato’s Caleb Brown on the possibilities for using these state constitutional provisions to advance liberty.

Related: Eugene Volokh discusses “Originalism: The Primary Canon of State Constitutional Interpretation,” a new article by Jeremy M. Christiansen.

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