November 17, 2008
Yes, dear professors, it is time again to see what is happening in Washington. This time we will have a "lame duck" and a "new duck" focus.
While the attention of the nation and the media focuses on President Elect Obama, it's easy to forget that we still have a president in the Oval Office. The New York reports that in another "Midnight Regulation," the Bush administration proposes rules that will prohibit discriminating against persons who refuse to perform abortions or related services on religious grounds. The idea is opposed by the EEOC, which believes that current regulations are already strong enough to prevent discrimination in these situations. The change is also opposed by American Medical Association.
NPR has an audio discussion of the lame duck Congress' plans. The most significant topic will likely be discussion of the proposed bailout for the "big three" automakers. The piece also discusses the difficulty inherent in trying to have a productive lame duck session.
In the executive branch, there is actual transition to report. Mr. Gregory Craig, a partner at Williams and Connolly, has been selected to serve as White House Counsel. Also, apparently someone named Hillary Clinton has been offered a job at the State Department.
The judicial speculation game is back on! This week, Judge Merrick Garland of the D.C. Circuit is being talked about as a possible nominee. Moreover, conservatives are hoping that Obama's nominees will be rightward-leaning.
But, of course, for the nomination talk to matter, there must be a vacancy at the Court. For his part, Justice Stevens quite loudy repudiated the notion that he is preparing to leave the Court in the near future.
Along these lines, according to the LA Times, it appears that the first battle between the Supreme Court and the Obama administration will be fought over the Voting Rights Act. We'll keep an eye on it.
Last note: The Fourth Circuit needs President Elect Obama to fill its vacancies yesterday . . . .
That's all for now. But of course, we'll be back for more before you can say "January 20!"
Update on Prop. 8
Can Prop 8 be overturned by the Supreme Court? Professor Brian Gray of the U.C. Hastings School of Law wrote an op-ed for today's Los Angeles Times. The piece compares the Prop 8 fight to another fight from 1992, when Colorado sought to amend its constitution to deny homosexual persons equal rights. The litigation over that amendment resulted in Romer v. Evans, and the Court found that the amendment at issue did not pass constitutional muster. Professor Gray's comparison of the two cases is worthwhile reading.
Newsweek's Anna Quindlen has a piece which goes even further back in Constitutional history to make the point. She reminds us that if ballot iniatives were put forward in the 1950s and 1960s, most voters would have voted against interracial marriages. From that point she makes a linkage between the facts and policy behind the Loving case and the resistance to Prop 8.
Update to the Update: Ilya Somin of the VC has a must-read post on this subject. Professor Somin tackles this question: If courts rule in favor of same sex marriage, but the populace votes against it (as it has in several states, most recently California), then courts are ineffective agents of social change, right? Not exactly, according to Professor Somin. In sum, without the courts' intervention, there may have been less backlash, but the issue would also have gotten less exposure. Here's a brief bit: "From a pro-gay rights standpoint, the adoption of gay marriage in two states and its near adoption in California was likely worth the cost of making gay marriage slightly more difficult to enact in some 30 states where it was unlikely to be adopted in the near future anyway." There's much more, so please read and share!
Posner and Vermeule on Crisis Government
Eric Posner and Adrian Vermeule posted their paper Crisis Government in the Administrative State: 9/11 and the Financial Meltdown of 2008 on ssrn on Friday. The authors compare administration and Congressional "crisis governance" and "emergency lawmaking" in response to 9/11 and the current financial crisis. They argue that Congressional delegation of power to the executive is best explained with reference to Carl Schmitt (arguing for executive powers over legislative powers to deal with emergencies), not James Madison; and that the Bush administration's less aggressive response to the financial crisis (compared to its response to 9/11) reflects its loss of popularity and credibility.
This article is a nice primer on Schmitt--perhaps an under-appreciated scholar in discussions of executive authority in law school classes--in the context of two relatively recent crises. It's also a useful study of the interplay between politics and constitutional law in assertions and exercises of executive power.
November 16, 2008
The Sunday Reader: Jellum on Statutory Directives and Separation of Powers
Professor Linda Jellum (Mercer) posted "Which is to be Master," The Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, forthcoming in the UCLA Law Review, on ssrn last month. Jellum, who also authored Mastering Statutory Interpretation and co-authored Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies (both by Carolina), produced a excellent review of separation of powers concerns with statutory directives and a quite useful typology of statutory directives in arguing which types of directives violate separation of powers, and which types do not. This article deserves attention: It'll propel the scholarship in this area, give guidance to legislatures, and help your students understand both separation of powers and statutory directives. I highly recommend it.
Jellum starts the piece by defining statutory directives:
As legislatures have increasingly begun to perceive judges as activitst meddlers, some legislatures have found a creative solution to the perceived control problem: statutory directives. Statutory directives, simply put, tell judges how to interpret statutes. Rather than wait for an interpretation with which they disagree, legislatures use statutory directives to control judicial interpretation.
According to Jellum, there are three types: Those that merely define terms (or "definitional directives"); those through which "Congress would be trying to control the interpretive outcome" (or "interpretive directives"); and those through which "Congress would be trying to control the interpretive process" (or "theoretical directives"). She gives an example of each:
1. For all Acts of Congress, the word "marriage" means only a legal union between one man and one woman as husband and wife.
2. All Acts of Congress shall be broadly construed with a view to promote the act's purposes and carry out the intent of the legislature; and the rule that statutes in derogation of the commmon law are to be strictly construed shall not apply. Moreover, the rule of the common law, that penal statutes are to be strictly construed, has no application. All statutes are to be construed according to the fair import of their terms, with a view to further their purposes and to promote justice.
3. The meaning of a statute shall be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining the text and such other relationships, the meaning of the text is plain and unambiguous and does not yield absurd results, the judiciary shall not consider extratextual evidence.
The first is a variation of 1 U.S.C. sec. 7; the latter two are from Jellum's imagination. But lest you think that these are over-the-top (and thus strawmen), Jellum brings in two state cases ruling on state legislative statutory directives that go so far, and more. It's not at all hard to imagine Congress passing legislation like 2. and 3., especially in the wake of controversial court rulings.
Jellum argues that definitional directives (example 1.) "are legitimate exercises of congressional involvement in the interpretive process," and that theoretical directives (example 3.) "are likely unconstitutional attempts to usurp judicial power and control the interpretive process." As to interpretive directives (example 2.):
[These] present the most challenging analysis: at bottom, interpretive directives are likely unconstitutional when enacted generally to apply to many statutes, but not when enacted to apply to just one statute. It is an odd, formalistic distinction, but one that I believe helps explain when Congress shifts from partner to master in the interpretive dialogue.
As a con law prof, there are two things I particularly like about Jellum's piece. First, her typology and conclusions help elucidate the separation-of-powers considerations in statutory directives. This is good reading for students struggling with these issues, and it'll be quite useful for those of us exploring them in scholarship. And her well defined categories even give good guidance to any legislature willing to take heed.
Second, Jellum includes a lengthy section that comprehensively reviews separation of powers doctrine. As you know, this can be, er, uneven--as Jellum notes, it has been described as "abysmal," "utterly asinine," and "appalling"--but Jellum's review helps sort it out, reviewing the historical roots of the doctrine and the contemporary formalist and functionalist approaches. This section of the paper is a necessary step in developing Jellum's argument about statutory directives, but it is also an outstanding review of separation of powers principles in general. (This is really a very accessible review. I suggest assigning it to your students as part of any lesson on separation of powers, whether you do statutory directives or not.)
Jellum's piece will advance the scholarship in this area and provide guidance to legislatures because of her useful typology and her clear conclusions. The piece will also be a wonderful addition to the con law classroom because of the excellent writing and examples. I highly recommend this.