Constitutional Law Prof Blog

The State Sovereignty Movement

A number of states have taken up measures to "assert their sovereignty" under the Tenth Amendment, reports USAToday.  The Tenth Amendment Center tracks developments in the movement here.

The state sovereignty movement speaks with many voices.  At its modest, the movement merely seeks to release states from unfunded federal mandates and federal strong-arming through conditioned spending programs.  At its strongest, some in the movement advocate secession.

But despite significant differences within the movement, there seems to be broad agreement that the Tenth Amendment protects states from federal interference more than the Supreme Court has held in cases like New York v. United States (federal government cannot commandeer a state's legislative process by requiring a state to enact and enforce a federal regulatory program), Printz v. United States (federal government cannot require state or local officials to enforce federal law), and South Dakota v. Dole (federal government may place certain conditions upon federal funds).

Just Wednesday, the Oklahoma Senate passed House Concurrent Resolution 1028, "A Concurrent Resolution claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; providing that certain federal legislation be prohibited or repealed; and directing distribution."  Here are some highlights:

WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states . . .

WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp . . .

[therefore be it resolved]

THAT the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

THAT this serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

THAT all compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

(Emphases added.)

SDS

Senate Judiciary Committee Hearing on Torture and OLC

Former State Department Counselor Philip Zelikow testified yesterday before the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary Committee in its hearing, What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration?

Zelikow is the author of an unreleased memorandum dissenting from the Office of Legal Counsel's views on torture, as reflected in the most recently released set of OLC memos.  Zelikow alleges that the Bush White House ordered all copies of his memorandum destroyed, but he retained at least one copy (which is currently under review for possible declassification).

Zelikow testified that the State Department in 2005 "worked to persuade the rest of the government to join in developing an option that would abandon . . . technical defenses and accept the 'CID' standard"--the "cruel, inhuman, and degrading" standard of Common Article III of the Geneva Conventions (prohibiting cruel, inhuman, and degrading treatment) and which the Bush administration had disavowed. 

State succeeded by the end of 2005, and President Bush signed the "McCain Amendment," which codified the CID standard and defined "cruel, inhuman, or degrading treatment or punishment" as "treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment . . . ."

The issues in the public debates about the McCain Amendment at or around the time of its passage included administration-requested immunity for U.S. officers and agents (codified here), an administration-requested exemption for the CIA (which it did not receive), and Bush's signing statement (here, widely understood to mean that the administration might ignore the Amendment). 

But everyone seemed to assume that the McCain Amendment would have some effect.

Wrong.  The OLC, through its May 30, 2005, memo concluding that the "full CIA standard--including waterboarding--complied with [the CID standard], already rendered the McCain Amendment a "nullity," according to Zelikow.  "[I]t would not prohibit the very program and procedures Senator McCain and his supporters thought they had targeted."

In other words, the White House put up a great fuss about the McCain Amendment, misleading Congress into believing that the administration thought it meant something--even pressing for a CIA exemption!--all the while knowing that its own lawyers already secretly ruled it a nullity.

(Zelikow goes on to argue that the OLC's interpretation of the Fifth, Eighth, and Fourteenth Amendments "did not seem to present a fair reading of the caselaw under the standard," and that "[t]he OLC analysis also neglected another important line of caselaw, on conditions of confinement."  Zelikow's testimony gives us a preview of the legal analysis in his as-yet unreleased memo.  We'll cover this when (and if) it comes out.)

Also at issue in the hearing yesterday--and all over the press recently--was Congress's own complicity in the administration's enhanced interrogation and torture program.  Vicki Divoll argued in yesterday's NYT that the "gang of four," including Nancy Pelosi, who were secretly briefed on the CIA's program, could have taken some action, including insisting that full committees receive briefings and even denoucing the Bush administration on the floor (although this would have been political suicide).

This may be so, but Zelikow's testimony is yet another reminder that the administration went to extraordinary lengths to cut Congress out of the CIA program--rendering the McCain Amendment a "nullity" in a secret OLC memo a full seven months before it passed, and then undercutting it with a signing statement.

SDS

Secession? Long Island, the Conch Republic, Texas, Vermont and Beyond

Secession is akin to divorce; it indicates that any existing constitutional frameworks are deemed insufficient - - - at least by one party - - - to solve the discord. When secession-talk surfaces, it might be blustery, sardonic, or serious.

On Long Island, there is talk of seceding from the State of New York.

The complaint is the not unusual one regarding allocation of resources and taxation. As an editorial in Long Island's Newsday described it:

people are rebellious. But that anger is far more likely to increase musket sales at Civil Wars R Us than it is to create a new State of Long Island. At the Suffolk County Legislature yesterday . . . It became clear the talk had gone a tad too far when a legislator paraphrased Thomas Jefferson's comment that "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Jefferson went on to say that blood is liberty's natural manure. The Suffolk lawmaker left out the manure part, but that's a good word for all this secession rhetoric.

Meanwhile, the Conch Republic just celebrated the twenty-seventh anniversary of its secession, prompted by "a United States Border Patrol Blockade setup on highway U.S.1 at Florida City just to the north of the Florida Keys," isolating the Keys from Florida and the US mainland since US 1 is the only connecting road. The blockade was a serious issue that entailed litigation, but the Conch Republic has also become a cultural marker of identity.

In Texas, the talk is current and seemingly serious.

On the Texas Secede! website, the answer to the question of whether the Texas state constitution reserves the right to secede is:

No such provision is found in the current Texas Constitution (adopted in 1876) or the terms of annexation. However, it does state (in Article 1, Section 1) that "Texas is a free and independent State, subject only to the Constitution of the United States..."not state (note that it does "...subject to the President of the United States..." or "...subject to the Congress of the United States..." or "...subject to the collective will of one or more of the other States...")

Neither the Texas Constitution, nor the Constitution of the united States, explicitly or implicitly disallows the secession of Texas (or any other "free and independent State") from the United States. Joining the "Union" was ever and always voluntary, rendering voluntary withdrawal an equally lawful and viable option (regardless of what any self-appointed academic, media, or government "experts"—including Abraham Lincoln himself—may have ever said).

But Vermont?

In One of These Things is Not Like the Others?: A Comparative Analysis of Secessionist Movements in Vermont, Quebec, Hawai'i and Kosovo, just posted on ssrn here, Brian M. Lusignan focuses on the Vermont secession movement. Importantly, he sets the stage for his serious consideration by discussing this issue of "experts" that the Texas Secede! website also identifies. Lusignan argues that "despite a widespread belief that support for secession is limited to society’s radical fringe, modern secessionist movements remain surprisingly legitimate." He notes that

a recent poll revealed that one in five Americans" believe “any state or region has the right to peaceably secede and become an independent republic.” In the South and the East, a quarter of poll respondents believe states have a right to secede. Furthermore, 18% of respondents said they would support a secessionist movement in their own state. Reactions to this poll range from the skeptical to the scathing. Professor Ann Althouse wrote on her blog that “all these people have the law wrong and don't seem to know the basics of the history of the Civil War” and called the results “[f]ascinating(ly stupid).” George Mason Law Professor Ilya Somin responded that “superior military might doesn't prove superior constitutional right” and that a belief in “a right of secession” does not “by itself demonstrates ignorance about either law or American history.”

Lusignan argues that there is

a deep divide in scholarly opinions on secession. According to Pulitzer Prize-winner Garry Wills, “[s]ecessionist efforts now resemble those of a crackpot group in Texas.” And yet Thomas Naylor, an economics professor at the University of Vermont, founded the secessionist movement the Second Vermont Republic. Naylor’s secessionist book The Vermont Manifesto prompted one legal scholar to suggest that confusion over the constitutionality of secession is caused by “intelligent laymen like Professor Naylor, who have not undergone our [legal] professional socialization” interpreting law and history “in unusual ways.” But Professor Somin is not the only legal scholar who sees the issue of secession as ambiguous. John Remington Graham, a former law school professor, traced the history of secession from England’s Glorious Revolution through the American Revolution and Civil War to the secessionist movement of Quebec. . . . some legal scholars believe that legitimate secession is an open question.

What makes a "secession" legitimate or not is certainly an interesting question, yet whether legitimacy is connected to "constitutionality" is far less clear.

RR

Torture Memo Dissenter Zelikow to Testify Before Senate Judiciary Committee

Philip Zelikow, former State Department counselor and author of a memo dissenting from the OLC memos authorizing torture, will testify tomorrow before the Senate Judiciary Committee during its hearing, "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration."  The hearing begins at 10:00 am (Eastern) it'll be webcast here.

Zelikow spoke last month about his memo and the Bush White House attempts to destroy it--see his MSNBC interviews here and here--and wrote about his views in a post on Foreign Policy's Shadow Government blog.  House Judiciary Democrats then called on Secretary of State Hillary Clinton and acting archivist of the United States Adrienne Thomas to release a copy.  Neither has responded.

SDS

What is an "Activist Judge" Anyway?

The title of this post is the question posed by a new article in The Politico by Sidley Austin attorney and former Supreme Court clerk Keenan Kmiec.  Shortly into the article, the author bemoans the way this term is used:

Without context or a clear definition, a charge of judicial activism is an empty epithet, the legal equivalent of calling someone a jerk. It hampers the exchange of ideas and lowers the level of public debate, wasting time (and pages) that could be devoted to serious discussion of the issues. With appropriate context and clarity, however, the term can be a valuable tool for a meaningful discussion about the judicial role. 

From here, Kmiec attempts to define the term and provide examples.  He first states, "As most commonly defined, judicial activism occurs when judges disregard the law in favor of their preferred outcomes."  However, he suggests that even that definition is difficult as the definitions within the definition are so malleable.  So, he provides more concrete suggestions: "Striking down arguably constitutional laws;" "Ignoring judicial precedent;" "Judicial “legislation;” and "Employing an illegitimate method of interpretation."  However, Kmiec employs a nuanced approach even to each of these limits.  For instance, he asserts that some terms ("e.g., "free speech") require some judicial legislation and that there are so many methods of interpretation it's difficult to consider any one invalid. 

There are many reasons to read this article.  First, by attempting to define the term, it reduces the incentive to use the term as a slur as is the current fashion in some circles.  Second, the article is an insightful meditation on the issues at the core of constitutional law.  When should a Court ignore precedent?  What about the areas of law - such as fundamental rights and the dormant commerce clause - that are almost entirely judicial legislation at some level?  Finally, the article is a nice segue into Kmiec's comment on the piece - published at 92 Cal. L. Rev. 1441 - which tackles the issue in much greater depth.  The comment analyzes the history of the term and provides additional definitions of the term and more detailed analysis.    As we head into this judicial appointment and confirmation season, both the Politico article and the comment merit close reading. 

NLS

Ninth Circuit Commerce Clause Case

In the off-chance that you've not yet written your exam (or if you are looking for commerce clause fact patterns for next semester), a case issued by the Ninth Circuit - available here- may be exactly what you need.  The facts are simple:  Can federal law - specifically 18 U.S.C. § 931 - prevent convicted felons from possessing body armor that has been "sold or offered for sale in interstate commerce?"

The majority holds that it can for two primary reasons.  First, the majority relies on stare decisis as it believes prior cases from the Supreme Court - including Scarborough v. United States, 431 U.S. 563 (1977) - and other circuits have addressed this issue.  The court does not want to create a circuit split on the issue.  Second, the majority asserts that even under the new analysis the Court provided in Lopez and Morrison, this statute is within the bounds of the Commerce Clause.  Though the test has four factors, the majority focuses primarily on the fact that - unlike Lopez - the statute here has a proper "jurisdictional hook" limiting its scope to goods sold in interstate commerce. 

The dissent focuses on two other Lopez-Morrison factors - the economic nature of the activity and whether the relationship of the activity to interstate commerice is too attenuated.  The dissent concludes,"We have never found that mere possession is, itself, an economic activity."  The judge further states, "[E]ven when Lopez’s and Morrison’s instructions are read in the light most favorable to exercise of congressional power, any potential effect on commerce . . . [through the] possession of body armor is both spare and particularly attenuated. The possession subject to regulation under § 931 need not be coupled with possession of a weapon or connected with the commission of a federal crime, circumstances which might fairly be said to substantially affect the national economy."  The dissent concludes by stating its view that neither the presence of a jurisdctional element nor the congressional findings on point resolve the issue.

The tension between the majority and the dissent here is quite interesting.  The majority's desire to show reverence to precedent is understandable, but by focusing so heavily on only one of the Lopez-Morrison factors (and by the majority's own admission, one that needn't ensure a favorable outcome on this issue) to the exclusion of the others, the majority's point loses its force.  It surely would not have been difficult to identify and support the arguments on the reamining prongs of the test.  But because the majority skims over that analysis, the dissent earns an advantage simply by being very thorough in the application of the law.

At any rate, the two points of view on an issue that is heavily taught make this an issue that is quite well suited for exam or classroom use.

 

Legalization of Marijuana: A Matter of Substantive Due Process?

The San Francisco Chronicle editorialized about the California Governor's comments:

With a rhetorical shoulder-shrug, Gov. Arnold Schwarzenegger said it's time to consider legalizing marijuana. His thoughts were the loose-fit variety: "I think it's time for a debate" and free of any specifics. Still, the idea is worth a serious study to assess the advantages and risks of trying to tax, regulate and control the drug.

The Stanford Progressive has a brief piece in its May issue by Ross Raffin expressing disappointment in Obama's "public hesitation towards marijuana legalization," but contending:

At the heart of the marijuana debate is federalism, the separation of state and national governmental power. For most of America's history, marijuana was treated as a crop subject to state regulation. However, the national government justified regulating marijuana through a variety of means, mainly the Commerce Clause of the Constitution which gives Congress power to regulate inter-state trade.

Now two law professors, Eric Blumenson (Suffolk University Law School) and Eva Nilsen (Boston University Law School), have authored an essay, Liberty Lost: The Moral Case for Marijuana Law Reform, available on ssrn here, seeking to make a

civil libertarian case for repealing marijuana possession crimes. We put forward two arguments, corresponding to the two distinct liberty concerns implicated by laws that both ban marijuana use and punish its users. The first argument opposes criminalization, demonstrating that marijuana use does not constitute the kind of wrongful conduct that is a prerequisite for just punishment. The second argument demonstrates that even in the absence of criminal penalties, prohibition of marijuana use violates a moral right to exercise autonomy in personal matters – a corollary to Mill's harm principle in the utilitarian tradition, or, in the non-consequentialist tradition, to the respect for personhood that was well described by the Supreme Court in its recent Lawrence v. Texas opinion. Both arguments are based on principles of justice that are uncontroversial in other contexts.

Lawrence's famous "caveat" paragraph - - - in which the Court excluded possible extensions of its judgment to same-sex marriage, commercial sex, or controversies involving minors - - - did not mention marijuana (or other drug laws).   Yet the applicability of Lawrence's problematizing of a state interest in "morality" is easily applied by Blumenson and Nilsen to laws criminalizing marijuana.  As for a "right to smoke marijuana," they observe that "the Supreme Court‘s found no right to engage in sodomy in Bowers v. Hardwick but later [in Lawrence] reversed itself in finding a right to autonomy in intimate relations."   Likewise, they argue, the right to use marijuana invokes "the rights to control one‘s body, to freedom of thought, to privacy in one‘s home, and to the pursuit of happiness."

Policy, legal, constitutional, and philosophical arguments about the (de)criminalization of marijuana have been around for at least three decades.  But new or not, prospects of reform are being seriously discussed.

RR