Saturday, March 14, 2009
It's time for another edition of the Teaching Assistant. While I generally like to include a mix of stories involving the judiciary, the Congress, and the executive, there have been several equal protection and fundamental rights stories that merit your attention. So, with no further ado, here are this week's stories.
Eugene Volokh - he of the Conspiracy - posts a fascinating story from North Carolina involving the fundamental right to raise one's children as one sees fit. The parents, now divorced, apparently disagreed on whether the children should be home schooled. The story will provide interesting context for cases such as Newdow in the Structure and Rights courses or any of the fundamental rights cases (Pierce, Meyer, et al.) that concern the fundamental right of child rearing.
The racial inequities in our criminal justice system are well known. This week, Congressman Steve Cohen (D-TN) and John Conyers (D-MI) introduced the Justice Integrity Act. The Act "
In the Huffington Post here:
Ginsburg, who spoke at New England Law's annual "Law Day," said the nine justices only take pictures together when a new member is added. "We haven't had any of those for some time, but surely we will soon," she said.
She did not elaborate and declined to take questions from reporters at the event.
Court watchers suggest Ginsburg, 88-year-old John Paul Stevens and 69-year-old David Souter are the most likely to retire.
The AP reports, however, that Souter is staying.
In a provocative essay on State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003),
Martha McCluskey of State University at Buffalo Law School argues that the case demonstrates that the "real action on issues of class in constitutional law may be taking place under the rubric of process." Entitled "Constitutionalizing Class Inequality: Due Process in State Farm," 56 Buffalo Law Review 1035-1057 (2008) (and available on ssrn), the essay builds on McCluskey's former scholarship demonstrating the slipperiness between substantive and procedural due process. As McCluskey notes, legal arguments in the US for economic rights as substantive due process rights have not gained serious traction. Indeed, she argues that even procedural arguments for the non-wealthy are recast into illegitimate substantive due process claims. Meanwhile, "substantive protections for wealthy capital owners' interests" are recast - - - as recognized - - - in a "procedural guise as narrow technicalities or as neutral formal principles."
McCluskey argues that the Court in State Farm was problematic for several reasons. She argues that the Court's preoccupation with the wide discretion by states in the award of punitive damages is not tolerated, while the wide discretion by states in the imposition of the death penalty or the enforcement of domestic violence retraining orders is deemed legitimate. She also argues the State Farm decision "constitutionalizes class inequality by interpreting class opposition to wealthy capital owners as fundamentally unfair":
The Court's central concern may be that high punitive damage awards are likely to reflect intentional class resentment by the non-wealthy. The majority opinion quoted an earlier precedent warning that “juries will use their verdicts to express biases against big businesses” and also noted that the Utah court had taken into account State Farm's massive wealth in measuring meaningful deterrence and punishment. Turning the famous Carolene Products Footnote Four on its head, the Court rules that wealthiest, most organized capital interests deserve special constitutional protection against substantive policymaking and law enforcement.
Id. at 1055. McCluskey briefly mentions the Court's more recent tobacco litigation punitive damages case, Phillip Morris USA v. Williams, 549 U.S. 346 (2007).
This essay makes useful reading when considering the arguments in the tobacco litigation cases as well as in Atlantic Atlantic Sounding Co., Inc. v. Townsend, argued March 3, which has been overshadowed by Caperton, the judicial bias case blogged here. Yet both Townsend and Caperton pose similar questions about the integrity of the judicial process given economic inequalities.
In Townsend, the certified question is "May a seaman recover punitive damages for the willful failure to pay maintenance and cure?" with the Eleventh Circuit answering in the affirmative, and departing from other Circuits.
However, as Justice Ginsburg made very clear in the Oral Argument's first question, this case is about the kind of class inequality McCluskey is discussing in her essay.
GINSBURG: Mr. McCreadie, in this case, why is it necessary to get into that, whether there are punitive damages under FELA and the Jones Act? If we accept, as I think we must, Townsend's allegations to be true, he has said that Atlantic, as a matter of
routine, puts in a boilerplate complaint for declaratory
relief, reciting all the reasons why somebody could not
get maintenance and cure, even though that is patently
false, the allegation for example that he deserted his
post. He says it's false. He said the allegation that
he falsified his application for employment is false.
Accepting the -- that to be true at this stage, isn't there some kind of punitive measure to be taken against a litigant who abuses the court process in that way?
Ginsburg later adds that "The allegations made by Townsend go far beyond that they just unreasonably denied him maintenance and cure. They suggest that this litigant, as a matter practice, standard operating procedure, makes false claims before a court. And my question to you is, isn't across the board there a sanction, wholly apart from the particular claim, for a litigant who abuses the court's processes?"
That the "litigant" to which Ginsburg refers is a corporation possessed of greater resources remains highly relevant - - - and in McCluskey's view this inequality should be a major consideration. In these days of changing perceptions of corporations, wealth, and economic inequality, McCluskey's essay warrants much consideration.
Friday, March 13, 2009
The Obama administration today filed a long anticipated memo in federal court outlining its "refined" position on its authority to detain individuals at Guantanamo Bay. AG Holder also filed a declaration stating the status of the administration's review of detention policies at Guantanamo through the Special Task Force on Detention Policy. DOJ's press release is here.
The administration's definition of individuals it may detain is unremarkable and similar to the Bush administration's definition of "enemy combatant." (The administration has already come under fire for not substantially changing the Bush administration definition. I think this misses a much more important point in the memo, the administration's claimed basis for detention, discussed below.) The administration wrote this on the definition of detainable individuals:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
This requires that detainable individuals "substantially" supported the Taliban, al-Qaida, or associated forces, or "directly" supported hostilities in their aid--only modest tightening of the Bush administration definition of "enemy combatant."
The more important point in the memo, however, is that the administration bases its authority on the Authorization for Use of Military Force (a Congressional act) and international law of war. The memo references throughout the AUMF, "principles of the law of war," and international treaties and makes clear that the administration's claims are based upon these . . . and only these. Thus the Obama administration takes the position that it is bound by these sources of law in its detention policies.
This is an extraordinary change from the Bush administration, which claimed inherent executive authority to detain and try enemy combatants (among other things), without regard to international law, treaties, or U.S. law.
It's true, as critics contend, that this memo alone may not fundamentally change things at Guantanamo Bay and in detainees' habeas petitions now pending in federal court. (Other administration action, however, may change things. Let's see what happens with the Special Task Force on Detention Policy. And remember that this memo merely reflects the administration's position, not (necessarily) the court's ruling on the definition of detainable individuals.)
But even if the memo doesn't change things in the habeas cases, the administration's legal basis for detention has changed dramatically from the prior administration. This is a change well worth applauding.
Thursday, March 12, 2009
President Obama yesterday issued a statement upon signing H.R. 1105, the Omnibus Appropriations Act of 2009, claiming that certain portions of the Act unconstitutionally infringe upon his executive authority and stating that his administration will interpret those sections consistent with his constitutional authority. The White House just earlier this week issued a memo to executive officials cautioning them against the use of President Bush's signing statements and outlining principles for the signing statements in the Obama administration.
President Obama's signing statement on H.R. 1105 objects to five different requirements of the Act for restricting his authority to conduct foreign affairs, restricting his authority as commander in chief, restricting his authority to direct the executive branch, and requiring Congressional approval before reallocating funds within the executive branch.
There's nothing particularly controversial in these claims (in comparison, say, to President Bush's statement exempting the administration from U.S. law banning torture). More importantly, they conform to the principles set out by the administration earlier this week on signing statements (link above). Particularly: They state the constitutional objections with specificity (though with no real legal analysis), and they identify the offending portions of the Act with particularity. The claims are modest, and they're transparent.
Although I would hope any more controversial claims would be supported with more detailed, publicly available legal analysis--or even just some publicly available legal analysis--this is a move in the right direction.
Professor Paul Finkelman (Albany) will deliver the Nathan I. Huggins Lectures next week at the W.E.B. Du Bois Institute for African and African American Research at Harvard on the theme "The Supreme Court and the Peculiar Institution: Marshall, Story, Taney, and the Defense of Slavery." The Institute webcasts and archives many of its events, so the lectures may be available through the Institute web-site, link above.
March 17, 4:00 pm to 5:45 pm: "Chief Justice Marshall & Slavery: A Slaveholding Chief Justice Discovers the Limits of National Power"
March 18, 4:00 pm to 5:45 pm: "Joseph Story and Slavery: The Enigma of an Antislavery Man Who Became a Proslavery Justice"
March 19, 4:00 pm to 5:45 pm: "Chief Justice Taney and Slavery: Defending the Cornerstone at all Costs"
Wednesday, March 11, 2009
South Carolina Governor Mark Sanford yesterday wrote to members of Congress detailing his objections to the federal stimulus act, stating his intent to reject portions of the federal money for ongoing state needs, and indicating that he'll seek a waiver from the White House to use the governor's portion of the stimulus funds--about 25% of South Carolina's total allocation, or about $700 million--to pay down the state's debt. If the White House declines, Sanford will reject the money. (Sanford's position on federal bailouts and stimuli, by the way, is not entirely new. He was also highly critical of the Bush administration financial bailout plan.)
The federal government, of course, can impose conditions upon its funds to the states, within certain boundaries. And State's, of course, can accept or reject the conditions (along with the funds). But Sanford's move raises the question: How?
The federal stimulus act includes a provision--inserted by South Carolina Democratic Congressman Jim Clyburn--that allows state legislatures to bypass their governor's rejection of federal stimulus funds merely by adopting a concurrent resolution. Section 1607(b) of the act (page 190) reads:
If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.
The act thus cuts out the governor, without regard to whatever state law may have to say.
Jack Balkin over at Balkinization suggests that this may well be unconstitutional: It depends on what state law says about the legislature's ability to accept the funds on behalf of the state when the governor would reject them. (According to ABC News, Clyburn said in response, "I'm not a constitutional authority, I'm not a lawyer, and I will let lawyers and constitutional scholars argue that point and that's why we have courts." Moreover: "I don't know whether or not it's constitutional. Whatever is constitutional is whatever the Supreme Court says it is.")
If 1607(b) is inconsistent with state law on who gets to decide whether to take federal funds, it most certainly is unconstitutional--every bit as much as the federal government dictating the location of a state capitol. But recall that 1607(b) wasn't the only portion of the act where the federal government attempted to direct the democratic workings of state government: The original H.R. 1 contained a provision denying funds to Illinois if Blagojevich were still in office (!).
Whatever one thinks about Sanford (and other Republican governors threatening to reject the funds) and Blagojevich, Congress seems to be trying to stimulate much more than the economy: It apparently also seeks to stimulate how state governments work. This it cannot do.
Steven G. Gey
Call for Papers
At the 2010 Annual Meeting of the AALS, the Section on Constitutional Law will host a panel exploring the distinction between “interpretation” and “construction” in constitutional law. One paper from an untenured, non-adjunct, faculty of law member will be included. Its author will join a panel that will include Professors Mitch Berman, Rick Hills, and Keith Whittington, among others. The author must be teaching at an AALS member or AALS fee-paid law school.
To submit an entry, send an abstract of your paper (five pages or less, single-spaced) electronically to Pam Davis: firstname.lastname@example.org. She is the assistant to executive committee member Brannon P. Denning. Please include your name, institutional affiliation, and contact information on a cover sheet only. All entries will be subject to a blind review by various members of the Executive Committee of the Section on Constitutional Law.
Submissions must be received by no later than May 1, 2009. Late submissions will not be accepted. The author of the abstract that is chosen will be expected to produce a 20 page (single-space) manuscript by the time of the AALS panel. If you have any questions, please e-mail Professor Denning (email@example.com).
From the panel description:
Recent work in constitutional theory has posited a
distinction between “constitutional interpretation” and “constitutional
construction.” The core idea is that interpretation is concerned with
the linguistic meaning of the constitutional text, whereas construction
implements and supplements that meaning. This idea is related to other
recent conversations in constitutional theory, including discussion of
“the new doctrinalism,” constitutional implementation, and the
distinction between constitutional rights and remedies.
Constitutional theorists have discussed the interpretation-construction distinction in diverse ways. Some scholars have suggested originalist constitutional interpretation can be reconciled with a living-constitutionalist approach to constitutional construction. Others have suggested that judicial review should be limited to the activity of constitutional interpretation, while the political branches should bear primary responsibility for construction. Some originalists criticize the distinction on the ground that it opens the door to judicial construction that is unconstrained by original meaning. In an earlier era, legal realists critiqued the distinction on the ground that interpretation of linguistic meaning and construction of legal doctrine cannot be separated in practice.
This program will evaluate and explore the interpretation-construction distinction from a variety of angles. The questions raised may include the following: (1) Does the interpretation-construction distinction capture a real difference between modalities or stages of constitutional practice? (2) What is the basis for the distinction? (3) Is constitutional construction by judges legitimate or should construction be limited to the political branches, or is the elaboration of constitutional doctrine an integral part of the judicial enterprise? (4) What norms should govern constitutional construction? (5) What role should precedent, historical practice, politics, social norms, and/or considerations of justice and morality play in the construction of constitutional doctrine? (6) Should constitutional construction be confined by the limits imposed by constitutional interpretation, or should constitutional actors sometimes adopt amending or saving constructions that are inconsistent with the constitutional text?
The Paper Award is named in honor of Professor Steve Gey.
Tuesday, March 10, 2009
Is marriage a fundamental right?
Anyone who has read (or taught) the last paragraph of Loving v. Virginia has struggled with this issue. Certainly the same-sex marriage cases do not support a viable argument that marriage is a recognized fundamental right under the due process clause of the Fourteenth Amendment.
The present controversy in California on Proposition 8, most recently blogged here, implicates this issue somewhat. But a new California Initiative has been proposed which could cause courts to consider the question from a different direction. According to the California Secretary of State's Ballot Measure Update, a new ballot measure has been added to the Initiatives in Circulation:
Substitutes Domestic Partnership for Marriage in California Law. Initiative Constitutional Amendment and Statute.
Summary Date: 03/09/09 Circulation Deadline: 08/06/09 Signatures Required: 694,354
Proponents: Kaelan Housewright and Ali Shams (818) 472-0982
Replaces the term “marriage” with the term “domestic partnership” throughout California law, but preserves the rights provided in marriage. Applies equally to all couples, regardless of sexual orientation. Repeals the provision in California’s Constitution that states only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: This measure would have an unknown fiscal effect on state and local governments. (09-0003.)
Full text here.
A development to watch. And certainly the basis for a great in-class hypothetical (or exam question).
Judge Emmet Sullivan (D.D.C.) today dismissed a Guantanamo detainee's habeas petition, at the detainee's request. Judge Sullivan's order dismissing Ghassan al Sharbi's petition is here; al Sharbi's hand-written motion, filed on August 8, 2008, is here.
Al Sharbi claimed in his motion simply that he did not authorize the habeas petition (which was filed on his behalf by an attorney hired by his father). Al Sharbi wrote that he has "an access to the U.S. Courts. Therefore there should not be, in the future, any case filed on my behalf."
Judge Sullivan, after detailing his efforts to evaluate al Sharbi's competence, wrote:
While the Court may certainly question the wisdom of abandoning a legal challenge to a detention that has lasted seven years without trial,[fn] the Court cannot say that Mr. Al Sharbi is incompetent or is making the decision to withdraw the pending habeas petition involuntarily or unknowingly.
[fn] It appears that Mr. Al Sharbi has been charged three times in the Military Commission proceedings, but to date none of those charges have resulted in a trial or been adjudicated to conclusion.
The Senate Judiciary Committee will hold a hearing tomorrow, 10:00 am EDT, on a proposed amendment to the constitution to require an election, not gubernatorial appointment, to fill a vacant Senate seat. The Senate Joint Resolution is here; the Senate Judiciary page, with a link to a webcast of the hearing, is here.
The proposed amendment would supersede the Seventeenth Amendment, Clause 2, which allows state legislatures to empower their state executives "to make temporary appointments until the people fill the vacancies by election as the legislature may direct." Thus, e.g., it would have required an election to fill President Obama's vacant seat--if it were in effect--thus avoiding the circus surrounding Roland Burris's appointment. (As it is, the proposed amendment would not affect Burris: It exempts "any Senator chosen before it becomes valid as a part of the Constitution.")
Monday, March 9, 2009
In a recent decision, the District Court for the District of Columbia dismissed yet another suit challenging Barack Obama's qualifications to serve as the 44th President. However, this case was noteworthy as it was dismissed as frivolous. Further analysis of the opinion can be found at PrawfsBlawg. (Thank you Professor Wasserman!) Professor Wasserman's summary can be found here:
The court found that it had jurisdiction, under both the diversity and interpleader jurisdictional grants. And the court addressed neither standing (I still believe there is a decent argument about undifferentiated interests) or political question doctrine (I am trying to figure out what relief the court possibly could have granted that would not have stepped on the congressional toes that certified Obama as the Electoral College winner). Didn't matter, because the court rejected the interpleader claim as "frivolous," stating that all the cases the plaintiff cited involved money or property and no court ever had allowed a "duty" to be treated as an interpleader res.
I previously wrote that there was a possibility of a court finding that a plaintiff in such a case could have standing. The plaintiff in Hollister was a retired general who claimed an interest based on the duty owed to serve the president. While the court found this did not satisfy the interpleader statutes, could a military plaintiff raise a strong argument on standing grounds? I believe the answer could be yes. Assuming that a proper injury argument could be crafted, it would seem that a member of the military would have a stronger argument than a normal taxpayer. Unlike civilians, a member of the military must take orders directly from the president. As a result, such a person would seem to have more of a stake in assuring that the President is in fact a citizen. I am certain this argument could also be refuted - for instance, what would injury could come from following the orders of a duly elected president? - but my main point is that is that while some have stated quite forcefully that there could almost never be a situation in which a person could challenge the qualifications of a president, it could be possible.
On the other hand, even if no person could be found to have standing to raise the issue, would that be so horrible? The Court has decided that a number of issues are best left to the political process. If there is a question as to the qualifications of a person for an office, perhaps the current system is designed to ensure that such questions are raised and refuted during the campaign. The problem here is that some persons were not satisfied with the results of the inquiry - perhaps delusionally so. But even in these instances, wouldn't the better course of action be to assume - without deciding - that the court has standing, and then dismiss the case on the merits? If such questions are swirling, isn't the better way to quash them to deal with directly? By allowing such questions to fester, the courts do us all a great disservice. It would be better for us all to have the truth supported and vertified by the judiciary rather than speculated by the chattering classes. The Hollister case seems a good step in that direction. Perhaps the next court will take the next step.
The press from the White House, with photo is from here:
(Caption to Photo from whitehouse.gov: "The President shakes hands with Rep. Jim Langevin of Rhode Island, who was paralyzed at the age of 16").
President Obama ordered executive officials to check with AG Eric Holder before relying upon Bush signing statements to disregard federal law, Charlie Savage reports in today's on-line NYT. Here's President Obama's statement.
President Bush issued an unprecedented number of signing statements, frequently using them to declare portions of acts unconstitutional and to declare his intention not to enforce those portions. Most of these statements were broad and cryptic, however, so we didn't always know exactly which portion of the act was offending or the precise legal grounds for the President's objections (although we could often guess). As a result, we didn't always know which portions President Bush refused to comply with or to enforce, thus making it very difficult to challenge the President's claims. Moreover, some Bush signing statements were based upon extraordinarily broad claims of inherent executive authority and widely discredited legal analysis (that we're now seeing retracted, e.g., in the recently released OLC memos).
Savage reports that President Obama hasn't entirely disclaimed signing statements, but his position seems more consistent with the use of signing statements by prior Presidents. Savage:
"In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded," Mr. Obama wrote in a memorandum to the heads of all departments and agencies in the executive branch.
The problem, of course, is that these lines aren't always that clear. In moving forward with signing statements, President Obama should agree to identify with specificity the offending portion of the legislation and identify the precise constitutional objection (with at least some legal analysis) to the offending portion of the law. At least this would put the whole business in the sunshine and allow for some oversight or challenge to the President's claims.
UPDATE: He did. Paragraph 3. of the statement, just posted on the NYT web-site, says this:
To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
Call for Papers
CONCEPTUALIZING SUBSTANTIVE JUSTICE
Sturm College of Law, University of Denver April 17-18, 2009
Keynote speaker: Professor Adrien Wing
Assoc. Dean for Faculty Devel. & Bessie Dutton Murray Prof. of Law, Univ. of Iowa
“Conceptualizing Substantive Justice: The South African Experience”
Post-modern critiques have discredited many of the Anglo-American legal norms in which modernism finds expression – formal equality, procedural justice, negative liberty, etc. But much room (and need) remains for discussion of new prescriptive paradigms of law and policy – for moving beyond critique to alternatives. For example, is it possible to articulate an alternative vision of justice that relies on positive notions of liberty, substantive notions of equality, and distributive notions of justice – and yet avoids the pitfall of claiming universal applicability or objective legitimacy? Can grounds for that vision be found within the U.S. Constitution, or would amendments or resort to statutory enactment be more appropriate? Does critical race theory’s endorsement of “looking to the bottom” suggest a methodology for identifying a set of concrete commitments that could ground a substantive notion of justice? How would that methodology be operationalized? How would conflicts among different outsider groups be resolved in the formulation of that vision?
Those interested in these or related questions are invited to attend a workshop-styled conference on “Conceptualizing Substantive Justice,” to be held at the University of Denver’s Sturm College of Law on Friday and Saturday, April 17& 18, 2009. Some travel funding is available for those without institutional travel support. Presentation proposals are due by March 13.
Please submit presentation proposals to: Professor Nancy Ehrenreich, Sturm College of Law, University of Denver, 2255 E. Evans Ave., Denver CO 80208, firstname.lastname@example.org, 303-871-6256 or 720-560-9794 (C).
To register, or for hotel information, please contact: Lauri Mlinar, Sturm College of Law Events Planner, 303-871-6391 or email@example.com.
Sunday, March 8, 2009
Charlie Savage and Scott Shane in today's NYT take a look at this question: "What is a government lawyer's responsibility if legal advice he gives turns out to be, in the view of many authorities, grievously flawed?"
The question arises in the context of a handful of Bush administration attorneys and their much criticized advice on constitutional executive authority in the war on terror via Office of Legal Counsel memorandums. The memos', er, inadequacies were perhaps most highlighted in the OLC's January 15, 2009, retraction and the, er, analysis in the rest of the lot in the recent set released by the Obama administration. See here.
Yoo has been under investigation by DOJ's ethics office, he's been sued by Jose Padilla (the complaint is here; DOJ is defending Yoo, as per Department practice), and he's come under fire from everyone from his students to the Berkeley City Council to the OLC leadership in the waning days of the Bush administration. He nevertheless stands by his sweeping claims of executive authority, if not his memos' "lack of polish."
There is of course quite a bit of commentary on the blogosphere, but I'd invite our own readers to comment on the Constitutional law reasoning and conclusions in the Bush lawyers' OLC memos and to answer this question: How bad is too bad?
Professor Edward Zelinsky (Cardozo) just posted on ssrn his very thoughtful take on the Supreme Court's recent turn in its Dormant Commerce Clause jurisprudence, The False Modesty of Department of Revenue v. Davis: Disrupting the Dormant Commerce Clause Through the Traditional Public Function Doctrine. This extraordinarily well written piece will make good reading for anyone with an interest in recent trends on the Court; but it's a must-read for those of us teaching, learning, and writing about the Dormant Commerce Clause.
Recall that last term's Davis upheld against a Dormant Commerce Clause challenge Kentucky's statute exempting interest on Kentucky municipal bonds--but not interest from other states' municipal bonds--from Kentucky residents' income tax.
Kentucky's is a familiar kind of law. In fact, thirty-six other states have laws that mirror Kentucky's, and every other state in the Union supported it at the Court. Lawyers and bond traders made good arguments that the muni market could fall apart if this near ubiquitous practice were overturned. Every pragmatic reason seemed to favor upholding the law.
And yet it seemed plainly to violate the Dormant Commerce Clause, based upon the Court's prior rulings.
The Court in upholding the law seemed to go the pragmatic route. Or, in Zelinksy's language, "By explicitly deferring to established practices and expectations, Davis is, at first blush, the kind of modest, pragmatic decision advocated today by many including, most prominently, Chief Justice Roberts."
But not so fast, argues Zelinsky. Rather than being a "modest, pragmatic decision," Davis in reality effected a revolution in the Dormant Commerce Clause by reinvigorating the indeterminate and practically boundless "traditional public function" category. Zelinsky:
However, on a second look, Davis has broad implications. Indeed, Davis disrupts the Court's preexisting dormant Commerce Clause doctrine by confirming the Roberts Court's use of the "traditional public function" category to immunize government activity from dormant Commerce Clause scrutiny. Over two decades ago, in Garcia v. San Antonio Metropolitan Transit Authority, the Supreme Court rejected for Commerce Clause purposes the "traditional public function" doctrine as unworkable. The Garcia Court's criticism remains persuasive today: There is no principled basis for determining when a government function is old enough to be "traditional" or "public" enough to be public.
As a result, everything a state does--from subsidization of economic development to 529 college savings plans that favor in-state schools--falls into the traditional public function. Zelinsky shows that this can't be squared with the Court's prior Dormant Commerce Clause rulings, especially those cases treating states' discriminatory taxes as per se unconstitutional. Zelinsky:
The expansive traditional public function category undermines the Court's prior case law by extending immunity from dormant Commerce Clause scrutiny to all government activity.
Zelinsky's better solution? "[B]ite the proverbial bullet and scrap the dormant Commerce Clause test of nondiscrimination." This is an unworkable test in any event, as demonstrated by the Davis Court's determination to avoid it.
Zelinsky's article is one of those rare gems that is every bit as useful to the novice just delving into the Dormant Commerce Clause as to the expert: The article in laying its foundation patiently details the doctrine; it then presents a serious and important argument on this practically simple case with doctrinally complex implications. Both foundation and argument should have broad appeal.
Moreover, Zelinsky's smooth, easy writing makes for pleasurable reading for a wide audience. I'm delighted to be able to share the piece with Con Law profs, and I look forward to assigning portions to my first-year students. I highly recommend this article.