August 29, 2009
Beauty and Equality: Saturday Evening Review
After documenting the emphasis on attractiveness, including matters of weight, Rhode tackles the legal arguments. She states that the "clearest argument for banning discrimination based on appearance is that it offends principles of equal opportunity and individual dignity." Id. at 1048. Additionally, another
reason for prohibiting discrimination based on appearance is that it reinforces group disadvantages. As constitutional scholars including Cass Sunstein and J.M. Balkin have argued, practices that systematically stigmatize and subordinate groups prevent members from developing their full capacities. The perpetuation of hierarchies also jeopardizes perceptions of fairness and legitimacy on which well-functioning democracies depend. Like many other forms of discrimination, prejudice based on appearance compounds the disadvantages of already disadvantaged groups, particularly those based on class, gender, race, ethnicity, disability, and sexual orientation.
Id. at 1052. Her third and final rationale supporting the argument for prohibiting appearance discrimination is "that it restricts individuals’ right to self-expression." Id. at 1058. One of her arguments refuting criticisms is that there is an
assumption that prejudice based on appearance is more natural and harder to eradicate than other forms of bias. In fact, considerable evidence suggests that in-group favoritism—the preferences that individuals feel for those who are like them in salient respects, such as race, sex, and ethnicity—are also deeply rooted. Plessy v. Ferguson, the shameful 1896 Supreme Court decision that affirmed “separate but equal” racial policies, was built on the assumption that segregation was a natural desire. Yet that desire has proven open to change, partly through legal interventions. A half-century ago, a majority of Americans surveyed thought that the Supreme Court’s ruling in Brown v. Board of Education prohibiting school segregation had “caused a lot more trouble than it was worth.” Today, only 11% share that view and the ruling is widely regarded as one of the Court’s finest moments.
Id. at 1069-1070 (citations omitted). Rhode's point is that law can affect societal change (and she provides other examples). She is not arguing that appearance should be a suspect or even quasi-suspect classification for equal protection purposes. However, she does provide a concluding section on "Directions for Reform," including a research agenda and calls for activism, including state and local action.
I first saw a mention of this article on Feminist Law Professors in an entry from Ann Bartow. Thanks to Ann, I've read an engaging thought-provoking piece. And it might even be the basis of a Constitutional Law hypothetical in next week's class.
August 28, 2009
The Constitutionality of the current Health Care proposal
On Saturday, the Washington Post ran an op-ed by attorneys David Rivkin and Lee Casey that challenged the constitutionality of the current health care reform proposals. The authors conclude that requiring each American to purchase health insurance would violate the Commerce Clause. In support of this argument, the authors review current Supreme Court case law on the Commerce Clause, stating:
Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
As expected, these passages generated a response in the blogsphere. Jonathan Adler of the Volokh Conspiracy states:
August 26, 2009
Congressional Participation in the Reagan Centennial Commission
The Office of Legal Counsel recently posted its April 21, 2009, analysis and advice on the question whether congressional seats on the Ronald Reagan Centennial Commission violated the Appointments Clause, the Ineligibility Clause, and separation of powers. The memo itself is unremarkable, but its analysis is reflected in President Obama's signing statementon the Act, specifically disavowing the Act's plain intended role for congressional members of the Commission.
If ever a signing statement were appropriate, this may be it. The statement is plain and transparent. The President reported his objections to Congress. The statement promotes the congressional purposes of the Act, while carefully carving out its obvious constitutional problems. And given the nature of the Act, nobody is likely to object.
But still, the timing of the OLC opinion (after House passage, but before the first reading in the Senate--presumably with time to amend the Act, as recommended by the OLC) raises the core question about Presidential signing statements: Should a President unilaterally rewrite portions of legislation that passed both houses of Congress?
The Commission, established by Pub. L. 111-25 and which includes members of Congress appointed by congressional leaders, shall
(1) plan, develop, and carry out such activities as the Commission considers fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;
(2) provide advice and assistance to Federal, State, and local governmental agencies, as well as civic groups to carry out activities to honor Ronald Reagan on the occasion of the 100th anniversary of his birth;
(3) develop activities that may be carried out by the Federal Government to determine whether the activities are fitting and proper to honor Ronald Reagan on the occasion of the 100th anniversary of his birth; and
(4) submit to the President and Congress reports [on the Commission's activities].
The OLC opined that Commission members are "officers," and that congressional appointment therefore violates the Appointments Clause. And because congressional members would be both members of Congress and officers "under the Authority of the United States," the Act violated the Ineligibility Clause. Finally, congressional members would have important executive functions under the Act--a violation of the anti-aggrandizement principle.
OLC recommended amending the Act to give the Commission authority merely to advise and recommend activities to an executive officer--a plain and simple recommendation before the bill even received its first reading in the Senate. But the OLC's suggestion did not work its way into the final version passed by both houses and signed by the President. Instead, the President, President Reagan's signing statement on a similar commission in 1983, wrote,
I understand, and my Administration has so advised the Congress, that the members of Congress "will be able to participate only in ceremonial or advisory functions of [such a] Commission, and not in matters involving the administration of the act" in light of the separation of powers and the Appointments and Ineligibiliity Clauses of the Constitution.
The statement is transparent, pragmatic, even quite useful in promoting the broader goals of Congress in creating the Reagan Commission. But it also perpetuates the practice that a President can unilaterally rewrite legislation merely by claiming a constitutional objection upon signing.
August 25, 2009
Administration to Continue Extraordinary Renditions
The Obama administration plans to continue to use extraordinary renditions but pledges to monitor them closely to ensure that the rendered aren't tortured, reportsthe NYT.
But if the administration has its way, we'll never know if rendered detainees are tortured, or whether they're rendered at all. That's because the administration has adopted the Bush administration position in the extraordinary rendition cases that the state secrets privilege prevents the courts from hearing claims by formerly rendered plaintiffs. Under the administrations' view, the courts must dismiss these cases on the complaints, because the government can't even acknowledge the existence (or not) of the program. The Obama administration reiterated this position in the Ninth Circuit case Mohammed v. Jeppesen Dataplan and challenged the panel ruling rejecting its claim. That challenge is now pending. (More here.)
The statement by administration officials that the Obama administration will continue the program seems to fly in the face of its assertions before the Ninth Circuit that the program is so secret that it cannot even answer a complaint.
The statement came the same day that AG Eric Holder appointed a prosecutor to examine CIA abuses of detainees, as described in the just released 2004 CIA Inspector General's report. Holder is apparently interested in pursuing only those who acted outside of the OLC's legal advice (which itself gave a broad license to interrogators).
Conference Annoucement - LatCrit XIV
Mark your calendars for the LatCrit XIV Conference. This year's conference is hosted by the American University Washington College of Law and will take place from October 1st through October 4th, 2009. As is tradition, the LatCrit/SALT Junior Faculty Development Workshop will be held from October 1st-October 2nd.
The theme for this year's theme is "Outsiders Inside: Critical Outsider Theory and Praxis in the Policymaking of the New American Regime." Panels include "Reconnecting Political and Civil Rights with Economic Justice," "Diversity, Corporate & Financial Law, and the Subprime Debacle," and "In Search of a Wise Latina: A Discussion on The Nomination and Confirmation of the First Latina Supreme Court Justice."
The conference registration deadline is September 14th; however, the deadline for the "early bird" hotel discount (which is at least $40 below the hotel's standard rate) is September 7th (Labor Day). The full conference program is available here. The registration information is available here.
August 24, 2009
In case you missed it . . . the "Welcome Back" Edition!
Hello Law Profs (and other readers!). As we all know, some stories generate sustained media attenion while others fly under the radar. Here is a list of cases you may have missed. It is my hope that these cases will help your transition into the school year.
In late July, the D.C. Circuit issued a case on standing. The plaintiffs, a conservative foundation committed to promoting patriotism, sued the Secretary of Defense to compel the University of California Santa Cruz to comply with the Solomon Amendment. Judge Ginsberg ruled that the plaintiffs lacked standing, and particularly, had not presented evidence to prove that a favorable decision would redress the plaintiff's alleged injury. As the opinion focuses heavily on the redressibility prong - which is sometimes slighted by casebook authors - a professor might wish to use the case as a hypo on this prong in class.
In mid-August, The Third Circuit issued its opinion in Holk v.Snapple Beverage Corp. (My preliminary analysis of the case at the hearing stage is here.) The plaintiff filed a class action suit including state law claims alleging that a number of statements on Snapple’s labels - including the phrase "all natural" - were misleading. The defendant claimed that plaintiff's claims were pre-empted by federal labeling laws. The Third Circuit disagreed, ruling that federal law presented no obstacle to the state law claims. Overall, the case discusses each type of preemption thoroughly and would be good fodder for class discussion for that reason. Moreover, with the movement in this area recently (see Wyeth, et al.), those writing in the area will want to take note.
Equal Protection Issues
Death Penalty - North Carolina recently passed the "Racial Justice Act." The Act would allow criminal defedants in death penalty cases to introduce statistical evidence to prove racial discrimination influenced the decision to seek or impose the death sentence. If the defendant sucessfully carries the burden of proof, the death sentence may be vacated. Clearly, this statute would be relevant to any discussion of McClesky v. Kemp and related cases. Moreover, this case is a great example of how the federal constitution provides a floor, not a ceiling, where certain rights are concerned. More background on the movement leading to act can be found here.
Jury Selection - Feminist Law Professors has a wonderful piece by Colin Miller that explore the gap between Batson and J.E.B. In short, can a litigant strike a woman of color based on the intersection of her race and gender? A Mississippi court recently confronted with the issue in Ross v. State. Ross, an African American female defendant, complained that the prosecution struck all of the African American women from the panel. The court discussed various issues, but did not resolve the Batson/J.E.B. issue. Professor Miller takes the courts to task and effectively says, "Resolve the issue already!" He asserts that while pre-J.E.B. cases may have been justified in their reluctance to find a Batson violation on a race/gender dyad, post-J.E.B., there is little justification for premitting strikes which are predicated on both race and gender. The entire piece is well worth the read.
The ACLU has filed an amicus brief in a Florida case. At issue is whether the Florida State Constitution will permit the state to confine a woman to ensure she receives medical care during pregnacy. While the arguments focus primarily on Florida Constitutional law, important cases on reproductive rights such as Roe, Casey, and Stenburg.
That's it for this installment. Have a great school year!
Jawad Released from Guantanamo, Transferred to Afghanistan
The U.S. Department of Justice announced today that the government transferred Mohammed Jawad from Guantanamo Bay to Afghanistan. At the time of his detention, Jawad was the youngest detainee at Guantanamo. The government held him for over seven years before he got caught between the Bush administration's military commission system and the Obama's administration's efforts to revamp it. Last month, Judge Huvelle (D.D.C.) lambasted the government for its treatment of Jawad at a hearing in his habeas case. (I posted on the extraordinary hearing here.) Most recently, the government filed a notice that it would no longer treat Jawad as detainable.
August 23, 2009
Miller's Legal Educator Blog Census
Professor Colin Miller (John Marshall, Chicago) recently posted his 2009 Legal Educator Blog Census on the Evidence Prof Blog. Miller's Census picks up where Prof. Daniel Solove (GW) left off and tell us "which legal educators are blogging and where the blogosphere is headed." Check out this excellent resource.