Saturday, January 10, 2009
In THE ACTIVIST: John Marshall, Marbury v. Madison, and the Myth of Judicial Review, independent scholar and author Lawrence Goldstone provides a highly readable discussion. (You might recall Goldstone as the author of Dark Bargain: Slavery, Profits, and the Struggle for the Constitution, which prompted some controversies, as discussed on Legal History Blog here).
But what I like about this book is that unlike many of the other accounts, Goldstone's is journalistic in tone. While I don't have the sense of "being in the room" with Marshall as he witnesses President Adams "settle" on Marshall as a Chief Justice nominee, I do gain a great appreciation of detail from Goldstone's work. And while not eschewing theories or complexities, his book has a distinctly non-partisan tone - - - I don't feel as if all the history is being slanted toward a particular constitutional theory.
Published last year by Walker & Co., here's the Publishers Weekly review, which seems to me pretty accurate:
The author's voice is never far from the surface in this sprightly study of the circumstances surrounding the Supreme Court's epochal 1803 decision in Marbury v. Madison that declared an act of Congress unconstitutional. Chief Justice John Marshall's reasoning was laughable, Goldstone says in characteristically unbuttoned language. Yet popular historian Goldstone (Dark Bargain), who has a Ph.D. in American constitutional studies, also has to acknowledge Marshall's statesmanship and political brilliance in his Marbury decision, a maneuver against the new Democratic-Republican president Jefferson by the Federalist Marshall. The result is a readable, if opinionated, tour of the origins of judicial review. It's hard to make sense of the term myth in the book's subtitle, given that judicial review has become the basis of American constitutional law. Still, the book is a valuable review of a complex subject. It also has relevance for today, when, as Goldstone claims, originalist judges, in the name of adhering strictly to the words of the Constitution, use judicial review, which is not in the Constitution, to inconsistently strike down laws.
It may not be the kind of book Publishers Weekly would recommend as good plane reading - - - Goldstone's mystery, The Anatomy of Deception, is probably more suitable fare - - - but I found it engaging in an aisle seat. It has just enough tidbits and a good narrative arc (although of course, we know the ending) to sustain one's interest.
The AALS Conference on Friday featured two panels discussing California's controversial Proposition 8 (limiting marriages to those between a man and a woman) passed last November and being challenged before the California Supreme Court, see previous posts here and here.
The first panel was the AALS Executive Committee Program entitled Democracy’s Dilemma: The Case of Proposition 8, moderated by Rachel Moran, the next President of AALS.
William Eskridge of Yale Law School provided one version of the history of a gay struggles for marriage and other civil rights. Nancy Polikoff of American University Washington College of Law provided a different version of the history of gay/lesbian struggles for family plurality and other rights, based on some of the arguments in her new book, Beyond (Straight and Gay) Marriage: Valuing All Families Under The Law (see my review in Women’s Review of Books here).
Daniel Rodriguez of University of Texas School of Law interestingly predicted that there was “virtually no chance” of the California Supreme Court invalidating Proposition 8.
Steven Smith, University of San Diego School of Law, stated he was making a “special appearance” because he was “boycotting” the AALS conference based on the AALS decision to “boycott” the Hyatt. Smith admitted he had not developed a sophisticated analysis of appropriate boycott decisions, but strongly felt that in this situation - - the owner of the Hilton having made contributions to a cause such as Proposition 8 in which people of good faith could reasonably differ - - - a boycott was not justified.
Bruce Cain, of UC-Berkeley’s Political Science Department, provided an excellent analysis of the political ramifications of one of the legal issues before the California Supreme Court - the difference between an “amendment” and a “revision” of the state constitution. Cain was interested in looking at the issue for state constitutions in general, positing a theory of differences between revisions of rights and revisions of institutions. He stated he was worried about drifting towards a majoritarian view of rights.
A few hours later, another panel on Proposition 8 occurred. Entitled Proposition 8, Legal Challenges, and the Future of Marriage Between Same-Sex Couples, this panel was a “hot topic” submission and less ideologically diverse than the earlier panel.
Moderated by Marisa Cianciarulo of Chapman University School of Law, the first speaker was M. Katherine Darmer, also of Chapman, who provided an “on the ground” perspective of organizing in Orange County against Proposition 8.
Erwin Cherminsky, Dean at the new UC-Irvine School of Law, spoke about the legal arguments in the California Supreme Court, regarding the differences between amendments and revisions, providing a quick rehearsal of some of the cases and an outline of the doctrine. He also discussed the problem with retroactivity (the status of the same-sex couples who married after the California Supreme Court decided The Marriage Cases in May and before Proposition 8 passed in November). Cherminsky ventured a few predictions based on his knowledge of the California Supreme Court Justices, and he was not as certain of the outcome as Daniel Rodriguez on the earlier panel.
Clifford Rosky of University of Utah School of Law spoke about the “political powerless” factor used to determine suspect class or judicial protection, linking it to the Proposition 8 controversy and the same-sex marriage cases in Connecticut and New York. And William Eskridge, who also spoke at the morning panel, provided an overview of the types of constitutional theories that the California Supreme Court might use in deciding the case.
Both panels were a good mix of law and politics. The panelists raised the specter of a recall of California Supreme Court Justices as happened to Justice Rose Byrd as well as the effect of a California decision for the rest of the nation. The panelists also made predictions about the eventuality of same-sex marriage given the demographics of support for it amongst younger voters.
A good source for those interested in keeping up with the litigation is The California Constitution, a blog by SF attorney Steve Mayer.
Friday, January 9, 2009
In the last month of so--and as recently as yesterday--DOJ released several OLC memos relating to significant questions in the war on terror. Check these out here. Wow. I bet they continue to trickle out up to the inauguration. And just in time for spring term con law prep. I'll read them and post as I go.
Here's the cut-and-pasted list of those released since 12/1/08:
"PROTECTED PERSON" STATUS IN OCCUPIED IRAQ UNDER THE FOURTH GENEVA CONVENTION
(March 18, 2004) (added 1/08/09)
STATUS OF TALIBAN FORCES UNDER ARTICLE 4 OF THE THIRD GENEVA CONVENTION OF 1949
(February 7, 2002) (added 1/08/09)
AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(October 23, 2002) (added 1/08/09)
WHETHER FALSE STATEMENTS OR OMISSIONS IN IRAQ'S WEAPONS OF MASS DESTRUCTION DECLARATION WOULD CONSTITUTE A "FURTHER MATERIAL BREACH" UNDER U.N. SECURITY COUNCIL RESOLUTION 1441
(December 7, 2002) (added 1/08/09)
LEGALITY OF THE USE OF MILITARY COMMISSIONS TO TRY TERRORISTS
(November 6, 2001) (added 1/08/09)
ASSERTION OF EXECUTIVE PRIVILEGE CONCERNING THE SPECIAL COUNSEL'S INTERVIEWS OF THE VICE PRESIDENT AND SENIOR WHITE HOUSE STAFF
(July 15, 2008) (added 12/29/08)
STATUS OF PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD UNDER 18 U.S.C. § 207(c)
(March 30, 2007) (added 12/22/08)
WHETHER A PRESIDENTIAL PARDON EXPUNGES JUDICIAL AND EXECUTIVE BRANCH RECORDS OF A CRIME
(August 11, 2006) (added 12/19/08)
DESIGNATION OF ACTING ASSOCIATE ATTORNEY GENERAL
(August 7, 2001) (added 12/19/08)
REQUIREMENT THAT "PRIVATE CITIZENS" BE APPOINTED FROM "PRIVATE LIFE" TO THE NATIONAL COUNCIL FOR THE HUMANITIES
(August 27, 2004) (added 12/19/08)
DUTY TO FILE PUBLIC FINANCIAL DISCLOSURE REPORT
(December 19, 2002) (added 12/19/08)
UNDER SECRETARY OF THE TREASURY FOR ENFORCEMENT
(December 19, 2002) (added 12/19/08)
ETHICS ISSUES RAISED BY THE RETENTION AND USE OF FLIGHT PRIVILEGES BY EMPLOYEES OF THE FAA
(August 30, 2004) (added 12/19/08)
DESIGNATION OF ACTING SOLICITOR OF LABOR
(November 15, 2002) (added 12/19/08)
MEANING OF "TEMPORARY" WORK UNDER 8 U.S.C. § 1101(A)(15)(H)(II)(B)
(December 18, 2008) (added 12/19/08)
SCOPE OF THE DEFINITION OF “VARIOLA VIRUS” UNDER THE INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
(July 24, 2008) (added 12/01/08)
The Fourth Circuit yesterday ruled in U.S. v. Comstock that Congress lacked authority under the Commerce Clause to enact 18 USC sec. 4248, which authorizes the federal government to place in indefinite civil commitment "sexually dangerous" persons even after they've completed their entire prison sentence. The AG need only certify that a person in federal custody is "sexually dangerous"; this is enough to trigger an automatic stay of release well past their prison term for those in the case.
Many thanks to Corey Yung of the Sex Crimes Blog for the tip.
1. The government's apparent lack of Commerce Clause support for 4248 is stunning in light of Lopez, Morrison, and even Raich. It's not that they needed much. But there's just nothing. There is apparently no record linking sexual dangerousness to interstate commerce; there's no jurisdictional element; and sexual dangerousness is clearly not economic (at least under Morrison). The government doesn't seem to have done much to present the court even with any conceivable link to commerce. And this isn't a part of a broader regulatory scheme, at least not in the Raich sense. (It appears the government didn't seriously press this anyway.) Even if Raich eased the government's burden from Lopez and Morrison--and pulled back to rational basis review--the government's lack of commercial link here is still, well, stunning. It looks like either the government is testing the very outer limits of its Commerce Clause authority (but that's belied by the government's lack of serious argument on Raich); the government doesn't care about 4248; or somebody forgot to tell Congress about Lopez and Morrison.
2. The government's reliance on the Necessary and Proper Clause is equally stunning, and bewildering. Judge Motz (her emphasis):
Yet the Government attempts to defend the validity of sec. 4248 largely by direct reliance on the Necessary and Proper Clause. But that provision, by itself, creates no constitutional power . . . .
What is less understandable is the Government's heavy reliance on the Necessary and Proper Clause, standing alone, as a source of congressional power. Of course, as the Government contends at length, the Necessary and Proper Clause reaches broadly, but it does so only to effectuate powers specifically enumerated in the Constitution. Ordinarily, this would end our discussion of the [Clause]. But because the Government's defense of sec. 4248 relies almost exclusively on that Clause, we briefly address each of its specific arguments on this point.
Here's the upshot of the government's argument, as stated by Judge Motz (again, her emphasis):
Were we to accept the Government's logic, Congress could authorize the civil commitment of a person on a showing that he posed a general risk of any sexually violent conduct, even though not all, or even most, of this potential conducted violated federal law.
This week we are in San Diego at the AALS Annual Meeting. Those of you that are here know that it is an awesome program! For those that are unable to attend, we are happy to summarize one of the proceedings. On Thursday, the Section on Constitutional Law hosted a program entited "Is American Constitutional Law in Crisis?" The program began with Jack Balkin (of Balkinization) explaining why he believes that Constitutional Law is in crisis. The program then proceeded with professors Saikrishna Prakash, Alice Ristroph, and Suzanna Sherry as well as Ninth Circuit Chief Judge Alex Kozinski offering their thoughts on the issue. Here are some of the thoughts and question that came out of the proceedings (which will be published in Constitutional Commentary):
1. What is the definition of crisis? Do we define a constitutional crisis as one of interpretation? Or must there be a complete lack of fidelity to constitutional principles. Does public (and/or scholarly) disagrement with a decision or series of decision make a crisis? If there is a crisis, is it a crisis of doctrine or a systemic crisis?
2. What types of actors are creating these constitutional issues? There is the Supreme Court, of course, but there is also the Justice Department (e.g., the torture memos). To be effective teachers and scholars, we should do our best to examine all of the constitutional actors and avoid a myopic view that focuses only on the Court.
3. If there is a crisis, how do acadmics contribute? It was proposed that academics do a disservice to constitutional law teaching when they erase the distinction between the law and politics, fail to educate the public about constitutional law, and fail to write about the actual doctrines of constitutional law. It was also suggested that law schools might consier moving the constitutional law curriculum to the second year, when students will be better able to read cases and to appreciate the distinction and between the legal and the political. They will also be able to understand that constitutional law is neither fully determinate nor fully indeterminate.
This is a brief summary. If you attended the conference, please add your thoughts in the comment section!
Thursday, January 8, 2009
The Free Enterprise Fund filed a cert. petition this week seeking Supreme Court review of a D.C. Circuit decision upholding Title I of the Sarbanes-Oxley Act, which established the Public Company Accounting Oversight Board under the authority of the SEC and with members appointed by the SEC and removable only for cause. (Thanks to SCOTUSblog for the petition link.) The Free Enterprise Fund challenged Title I as a violation of the Appointments Clause and separation-of-powers.
If the Court picks this up, it could become a significant case (one way or the other) on Presidential power to supervise the executive branch and on the unitary executive theory.
I previously posted on this here, with a link to the lengthy D.C. Circuit decision and my less lengthy edited version.
Tuesday, January 6, 2009
UPDATE, 1/10: Commenter J.D. Mekeel posted a link to the Ill. Sup. Ct.; see comments. Thanks, J.D.
UPDATE, 1/7: It looks like Senate Democrats may be looking for a resolution. The Dems have no constitutional basis for insisting on the Illinois Secretary of State's signature, though: The Seventeenth Amendment says nothing about a Secretary of State's signature; Illinois law (enacted under authority of the Seventeenth Amendment) authorizing Blagojevich to appoint a temporary replacement does not require it; and the Senate cannot require it under Article I, Section 5 (for reasons below). If the signature is their solution, it's still unconstitutional.
According to the report, Burris found his way today to Senate Secretary Nancy Erickson, to whom he presented his credentials--an appointment by Governor Blagojevich pursuant to the Seventeenth Amendment and Illinois state law, but minus a signature from Illinois Secretary of State Jesse White (who has refused to sign the appointment). Erickson rejected Burris's credentials because his appointment letter did not comply with Rule II of the Senate standing rules, which requires signatures of both the governor and the secretary of state.
In other words: The Senate denied Burris because of his lack of qualification.
This is an appalling disregard of Article I, Sections 3 and 5, and Powell v. McCormack, which together say that the Senate may not block Burris if he meets the basic, minimal qualifications of citizenship, residency, and age. The only way the Senate could justify this move is by reading Rule II as a requirement for the "return" (not "qualification") under Article I, Section 5 (which also allows the Senate to judge "returns" of its members). But this is a tenuous argument, at best: Burris was not "elected," and he had no "return" in the Section 5 sense; he was validly appointed by his governor to fill a vacancy pursuant to the Seventeenth Amendment and Illinois law. Moreover, this violates the spirit of Article I, Section 5, and Powell, which together stand for a narrow reading of the Senate's authority to judge and block duly elected or appointed senators-to-be.
This is also an appalling disregard of the Seventeenth Amendment--which allows state legislatures to authorize their governors to fill Senate vacancies--and state sovereignty. The Illinois legislature validly authorized Governor Blagojevich to appoint a replacement for President-Elect Obama in the Senate pursuant to the Seventeenth Amendment. It could have revoked that authorization and provided for a general election. It didn't. Neither the Seventeenth Amendment nor Illinois law require the secretary of state's signature to validate the appointment. (Illinois law does impose a duty on the secretary of state to sign gubernatorial appointments, but failure to satisfy this duty cannot invalidate an otherwise lawful gubernatorial appointment. It just means that Secretary of State White is violating his legal duty.) By requiring the secretary of state's signature, Rule II violates the language and spirit of the Seventeenth Amendment and encroaches on the state's ability to fill a vacancy in one of its Senate seats.
In the same article, the Times suggests that Senate Democrats are softening their opposition and may be open to negotiation. Let's hope the parties can work this out in a manner consistent with the Constitution.
Monday, January 5, 2009
Lyle Denniston at SCOTUSblog reports that U.S. District Judge John Bates (D.D.C.) will consider whether habeas corpus extends to prisoners at Bagram Airfield in Afghanistan starting tomorrow. The cases--Wazir v. Rumsfeld, Maqalah v. Rumsfeld, Al Bakri v. Gates, and Al-Najar v. Gates--test the reach of Boumediene v. Bush, last term's decision holding that the constitutional privilege of habeas extends to foreign nationals held at Guantanamo Bay, and Munaf v. Geren, last term's decision holding that the statutory right to habeas extends to U.S. citizens held at a military facility in Iraq.
According to Denniston, the administration distinguishes Boumediene and Munaf, arguing that Bagram is in an active theater of war (not land closely controlled by the U.S. and outside the theater of war, like Guantanamo Bay) and that it holds foreign nationals (not U.S. citizens).
Attorneys for the detainees argue that some of them have been held six years--and that any government argument against habeas has lost its force.
We'll watch these cases and report when anything substantial happens.
Sunday, January 4, 2009
Professor Greg Young (U. Md.) recently posted Justifying Motive Analysis in Judicial Review on ssrn; it is also forthcoming in the William & Mary Bill of Rights Journal. The article is a thoughtful exploration of motive analysis in constitutional law and a good argument that motive analysis even in a set of rational basis cases (including Moreno, Romer, Cleburne, and Lawrence) can be justified on consequentialist, not deontological, grounds. In the spirit of Young, I justify reading this excellent article--and I highly recommend it--for its consequences both mediate and immediate: It's not only a useful addition to the literature that may impact your own thoughts and work; it is also a delightful and satisfying read in itself.
Young sets out his task thus:
My central concern, however, is with how motive analysis might be justified on an attractive moral philosophical theory, one that fits reasonably well with the case law. I am especially concerned with whether a consequentialist justification is a good fit with the case law. Making consequentialism fit the case law is especially difficult, though I think possible, in certain rational basis cases such as U.S. Department of Agriculture v. Moreno, Romer v. Evans, and City of Cleburne v. Cleburne Living Center, Inc. . . .
My burden is to demonstrate why the presence of an actor's illegitimate motive (mental state) is likely to correlate with an absence of other objective reasons that are legitimate and sufficient under the circumstances to justify his action. . . .
And here's the punchline:
[O]ne might say that the Constitution requires public bodies and officers to seriously weigh even ordinary individual liberty interests and interest in equality against public regulatory interests. . . . But it is intelligible to fear that, in the great mass of actions based on illegitimate motives, individual interests are not considered seriously enough or at all. And that is a consequentialist concern, becuase one intuitively predicts that, in the long run, the mass of illegitimately motivated actions will form a world that is significantly concretely different from a world in which individual interests are taken seriously.
. . .
But let us assume that one wishes to adhere strictly to the surface appearance of constitutional race law that no states of the world are so disfavored. By this I mean that no disparate impacts are disfavored, no matter how large. Even so, the problems of hurtful expression provide an alternative plausible consequentialist explanation . . . .
Along the way, Young examines a number of important but underexplored issues with motive analysis, including whether motive analysis is about mental states, whether motives must be conscious, and whether government actions might be prohibited based on psychic harm caused by expression without restricting government speech (or: "Why Don't We Put Legislatures in Jail?").
I have to admit that I enjoy the article in large part because of its attention to the Moreno-line of cases--a line that, in my judgment, offers countless opportunities for analysis. And Young's piece is an important addition: By showing how the motive analysis in these cases can be justified on consequentialist grounds, Young also underscores the importance of their underlying principle--that if "'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Moreno, at 534-35.
But more generally, as I said above--and I can't say it any better here--this is a satisfying read. I highly recommend it.
The constitutional arguments have circulated (and recirculated) now since Governor Blagojevich appointed Roland Burris to fill President-Elect Obama's Illinois Senate seat. (I've posted here and here, with links to the best.) At the end of the day, the strongest constitutional argument for Senate authority to block Burris is simply not strong enough, and the Senate therefore lacks authority to block Burris. While the Senate may nevertheless be able to do an end-run around its constitutional restraints, there are good prudential reasons to avoid this.
The strongest argument for Senate authority to block Burris goes something like this:
1. The Senate has authority under Article I, Section 5 to "Judge . . . the Elections, Returns and Qualifications of its own Members . . . ."
2. Admittedly, the Senate can't judge Burris unqualified, because he plainly meets the age, residency, and citizenship qualifications of Article I, Section 3. And the Senate can't add requirements or otherwise judge Burris to be unqualified, so long as he meets these basic constitutional qualifications. See Powell v. McCormack.
3. But the Senate may judge Burris's "election" to be faulty. This argument requires reading Section 5's "elections" to include an appointment under the 17th Amendment and Illinois law authorizing the governor to fill a Senate vacancy.
4. And the Senate may judge Burris's "return"--his actual appointment document--to be faulty. This argument requires a flawed process, or a technically flawed return. As to the latter, the best argument here is that the appointment may lack a signature from Secretary of State Jesse White.
(Just this morning Senate Majority Leader Harry Reid outlined something like this--in broader terms--for David Gregory on Meet the Press.)
Here are the problems:
Point 2. is correct, and the Senate lacks authority to block Burris based on his lack of qualifications.
As to Point 3., there is no indication that Burris's "election" was flawed in any way, even if we understand Section 5's "elections" to include an appointment by way of authority under the 17th Amendment and Illinois law--not at all an obvious point, given the plain language of Section 5 and of the 17th Amendment. (Here's just one problem: The 17th Amendment uses "temporary appointment" and "election" as two entirely distinct methods of gaining office, suggesting that a "temporary appointment" under the 17th Amendment is not an "election" either for 17th Amendment of Section 5 purposes.) But if the Senate goes ahead and judges that this "election" was flawed, there seems to be no limit on the Senate's authority to judge any even marginally suspicious election flawed (by the judgment of a mere majority of senators). This is very dangerous precedent.
As to Point 4., again there's no indication that the return is flawed. The Secretary of State's signature is merely ceremonial--Illinois law, 10 ILCS 5/25-8, requires only that the governor make the appointment, not that the Secretary of State sign it--and any Senate rule that requires a Secretary of State's signature cannot override the constitutional definitions on Senate authority under Article I, Section 5 and the state legislature's authority under the 17th Amendment. (The Illinois state legislature had plenty of time to change this--and to require a general election instead of a gubernatorial appointment to fill a vacancy--but it didn't.)
And to the extent that Powell v. McCormack is relevant, Points 3. and 4. both undermine its spirit, reading Congress's authority under Article I, Section 5 quite narrowly.
The Senate, as a body of limited, enumerated powers, simply does not have the constitutional authority to block Burris.
But that doesn't mean that the Senate can't do an end-run around Article I, Section 5. It could, for example, delay seating Burris by holding hearings on his "election" or "return" until Blagojevich is impeached. But this undermines Article I, Section 5, and the 17th Amendment, and the Senate should avoid this. The Chicago Tribune ran a thoughtful editorial--even if not entirely accurate on the constitutional law--arguing against this kind of monkey-business.
Or the Senate could seat Burris and then expel him by a 2/3 vote under Article I, Section 5, clause 2. (Or it could anticipatorily vote to expel him by passing a resolution by 2/3 warning Blagojevich that Burris will be expelled if he doesn't back down.) This is clearly within the Senate's authority, but may be unviable or unpalatable.
Whatever the Senate does, any legal challenge may well be a political question, and the courts may punt back to the political branches. This doesn't make the Senate's interpretation of its constitutional authority correct, it just means that the Senate is the body that gets to decide.