Saturday, December 5, 2009

Constitutional Law Exam Hypothetical

Looking for a Constitutional Law hypothetical, either to adapt for your students or, if you are a student, to practice or to discuss with your study group colleagues?

Here's a problem focusing on "fundamental rights" and new doctrinal and theoretical developments that I used as a practice hypothetical for the last week of classes this semester: 

Picture 2 To:    All Constitutional Law Students

    I hope you can assist me with an issue that has suddenly arisen.  A friend of mine - - - let me call her Ms. K. - - - teaches a program entitled “self-defense for girls” in the NYC Department of Education's "academies" for students who have been suspended from other schools.   The mission of these academies is to enable "every student to succeed academically while developing socially and emotionally to become a confident and productive member of society."  Ms. K's program, approved and funded by the NYC Department of Education,  is aimed at improving "self-esteem and self-discipline" as well as providing "real-world usable skills." 
    Ms. K, who is highly trained in a variety of martial arts, regularly includes a unit on martial arts. However, all 25 of Ms. K’s students at a particular academy in Queens have been suspended for possessing the “kung fu stars” Ms. K required for class.  A suspension from an academy means that a student is not able to attend any public school in the city.   
    Almost all of the students who have been suspended from the academy carried the “stars” in their back-packs; most of the students had the “stars” in little black foam-lined cases. I believe, although I am not sure, that Ms. K provided both the “stars” and the cases.   Ms. K told the Principal that these stars were for the class, and that skill in throwing stars is vital for "female defense": “Skillful throwing of a star can stop a pursuer, giving the girl time to escape.  A truly skilled star thrower could hit a dime at thirty feet, although of course with only a few weeks experience, the students are less accomplished.”
    The Principal responded, “a rule is a rule.”  (An excerpt from the rules is available below [
Download here]; the Principal does seem to be correct that there is a rule prohibiting “kung fu stars” in the schools.)  The Principal of the academy also stated that "these students are not regular students - - - they are students who have already been suspended and allowed to pursue the privilege of education at a special school.  If these girls cannot abide by the rules, even when given this last chance, then we can all agree they are a detriment to themselves and society."
    Ms. K does not agree.  Indeed, she is outraged.  She believes being educated in self-defense is a “fundamental right" vital to survival, especially for girls.  
    I told Ms. K that we have been considering "fundamental rights" recently and I am certain that every member of our class would be able to assist her.  Please provide a brief memo objectively discussing the constitutional aspects of the situation, including any constitutional arguments Ms. K (and the students) might make, the likelihood of their success, and the important theoretical perspectives. 

Happy Exam Season.


December 5, 2009 in Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Privileges and Immunities, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, December 4, 2009

"State Sovereignty" and the Health Insurance Mandate

NPR's Morning Edition this morning reported on state movements to sidestep any health insurance mandate that might come out of the health care overhaul now before Congress.  (We previously reported on these here.)  These are state constitutional and state statutory measures that say that individuals shall not be required to purchase health insurance.

If Congress has authority to enact an individual health insurance mandate, these state measure run up against the Supremacy Clause: They are almost surely unconstitutional, as conflicting directly with the federal requirement.

But advocates of the measures nevertheless claim that they interfere with "state sovereignty."  As one advocate in the last line of this morning's story said, "No Supreme Court has ever been more sympathetic to state sovereignty than the current Court."

Whether that's right or not, it almost surely would not affect the Supremacy Clause analysis (unless the Court were willing to undo well settled Supremacy Clause principles).  So what does it mean?

One possible answer: A mandate's interference with "state sovereignty" means that Congress lacks authority under the Commerce Clause and Necessary and Proper Clause to enact a mandate in the first place.  This interpretation might draw support from U.S. v. Lopez (holding that Congress lacked authority under the Commerce Clause to enact the Gun Free School Zone Act) and U.S. v. Morrison (holding that Congress lacked authority under the Commerce Clause to enact the civil damages provision of the Violence Against Women Act).  The majority in both of those cases referred to the slippery slope that might result if Congress had authority to enact those laws: "Congress could regulate any activity that it found was related to the economic productivity of individual citizens . . . .  Under the[se] theories . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign."  But neither case turned on this slippery slope, and the interference with traditionally state regulated activities alone is surely not enough to render congressional action unconstitutional.  See Gonzales v. Raich (upholding a federal drug possession law).

State sovereignty claims aside, some (including some commentators on this blog) have argued that Congress lacks authority under the Commerce Clause to impose a mandate, because not having health care (the activity regulated) is not a commercial activity.  Stated differently: Congress can restrain or regulate economic activity; but it cannot require economic activity.

This argument makes two mistakes.  First, it distinguishes a restriction (a regulation) with a requirement (as non-regulation), and, relatedly, it distinguishes action (as economic activity) with non-action (as non-economic activity).  It's not at all clear that the courts view "economic activity" this way.  For example, the Eighth Circuit in U.S. v. Howell, 552 F.3d 709 (2009) recently upheld a federal provision requiring former sex offenders to register as sex offenders under the Commerce Clause.  That court rejected the criminal defendant's argument that Congress lacked authority to regulate non-action under the Commerce Clause.  Similarly, the Second Circuit in U.S. v. Sage, 92 F. 3d 101 (1996), upheld a federal law criminalizing the failure to pay past child support obligations.  The Sage court addressed the question squarely:

Sage argues that the Act is not within the Commerce Clause power and thus invalid on its face because it concerns not the sending of money interstate but the failure to send money.

Such reasoning would mean that Congress would have no power to prohibit a monopoly so complete as to thwart all other interstate commerce in a line of trade.  Yet the Sherman Act . . . is within the Commerce Clause power. . . . To accept Sage's reasoning would disable the United States from punishing under the Hobbs Act . . . making it a crime to "obstruct" interstate commerce, someone who successfully prevented the interstate trade by extortion and murder.  There would be no trade to obstruct.

Sage at 105 (citations omitted).  These cases might be distinguished because they only require activity that is already required under state law, or because they require limits to economic activity.  But they--and Howell--also suggest that the courts do not draw the sharp line between restrictions and requirements, actions and non-actions, that this argument assumes.

And with good reason.  In the health care context, an election not to purchase health insurance is every bit an economic activity as an election to purchase.  It's those significant interstate economic costs associated with individuals' elections not to purchase that in some measure sparked the health care debate in the first place.  Not purchasing, in this context, is an economic activity.

But the argument makes a second mistake.  The Supreme Court has never required only "economic activity" as a subject of regulation under the Commerce Clause.  In Lopez, Morrison, and Raich, the Court was quite clear that Congress can regulate activity that has a substantial effect on interstate commerce (in addition to the channels and instrumentalities of interstate commerce).  Decisions not to purchase health insurance, "economic" or not, surely have such a substantial effect--again, it's that effect that's driving much of the movement for reform.

Whatever the merits of the policy arguments against an individual mandate, these Commerce Clause arguments based on "state sovereignty" and lack of economic activity do not render them unconstitutional.


December 4, 2009 in Commerce Clause, Congressional Authority, News, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, December 3, 2009

New York Court applies Takings Clause against Columbia University's Plans to Expand

An appellate division court in New York issued its opinion today in Matter of Kaur v New York State Urban Dev. Corp., involving the controversial bid of Columbia University to expand further into the Manhattanville section of Harlem by acquiring 17 acres, some of it by government's exercise of eminent domain. 


After opening with a quote from Calder v. Bull, 3 U.S. 386, 388, 3 Dall. 386, 388, 1 L.Ed. 648 (1798), the court states:

The exercise of eminent domain power by the New York State Urban Development Corporation d/b/a Empire State Development Corporation (hereinafter referred to as "ESDC") to benefit a private elite education institution is violative of the Takings Clause of the U.S. Constitution, article 1, § 7 of the New York Constitution, and the "first principles of the social contract." The process employed by ESDC predetermined the unconstitutional outcome, was bereft of facts which established that the neighborhood in question was blighted, and ultimately precluded the petitioners from presenting a full record before either the ESDC or, ultimately, this Court. In short, it is a skein worth unraveling.

The "skein" as interpreted by the court includes its conclusion that any "blight" designation of this area is "mere sophistry."   The court extensively discusses Kelo v. City of New London, 545 U.S. 469 (2005), distinguishing it, but also finding the "time has come to categorically reject" the relevance of underutilization:

This concept put forward by the respondent transforms the purpose of blight removal from the elimination of harmful social and economic conditions in a specific area to a policy affirmatively requiring the ultimate commercial development of all property regardless of the character of the community subject to such urban renewal.

Moreover, the court held that "the record overwhelmingly establishes that the true beneficiary of the scheme to redevelop Manhattanville is not the community that is supposedly blighted, but rather Columbia University, a private elite education institution."   This, the court stated, "conflicts with Kelo on virtually every level" and thus "render the taking in this case unconstitutional."

While the court cites the state constitutional provisions, Kelo is clearly the relevant precedent.  This could be the basis for a great exam question on the takings clause - - - or a great in-class exercise for next semester.


(Thanks to Sam Sue of CUNY School of Law)

update: NYT story here; gothamist with good photos here.

December 3, 2009 in Current Affairs, News, Takings Clause, Teaching Tips | Permalink | Comments (0) | TrackBack (1)

Wednesday, December 2, 2009

Takings Clause: Analysis of Beach Renourishment Oral Arguments Today

The Court heard oral arguments today in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, in which the certified questions include whether a Florida decision on littoral rights constituted a "judicial taking" in violation of the Fifth Amendment's takings clause.

Picture 3

Counsel for the association of some property owners, Stop the Beach Renourishment, proposed the test as “a judicial taking occurs when a State court affects a sudden and dramatic change in State law, unpredictable in terms of relevant precedents, that have no fair or substantial support in well-established background principles of State law.”  (transcript at 24).

However, as the oral arguments indicated, the “background principles” of Florida law were less than clear.  First of all, there is the distinction between an accretion and an avulsion, with the former being gradual and the later being more sudden.  Justice Alito seemed less concerned with these distinct labels, saying that they don’t “eliminate the fact that there's been a fundamental change, taking a doctrine that applies to things that occur as a result of nature and you've applied it to things that are produced by the State.”  (at 32).  For other Justices, the State’s actions of beach renourishment seemed to be beneficial to the property owners, even though these particular property owners were complaining.

Roberts posed this hypothetical, first to counsel for the property owners and then repeating a version of it to counsel for the state of Florida:

. . . let's say the legislature passes an act saying the boundary of beachfront property is now where the sand starts and not the mean high water mark but the mean high sand mark. All right. And -- and then -- so that's sued. You -- you sue under that and the court says, yes, of course that's a taking, our precedents have always said it's the mean high water line and nothing else. Florida has judicial elections, say, somebody runs for election for the Florida Supreme Court and says I'm going to change that law, I'm going to say that it is not a taking. I think people should be able to walk right up to the land. And that person is elected and the law is changed. Now, is -- is that a judicial taking?

(at 33, compare 56).   Neither counsel seemed to have a particularly insightful answer to the question, perhaps because Roberts’ hypothetical assumes that the precedents in the state had always been clear.

Certainly the case poses important issues under the Fifth Amendment’s Takings Clause regarding judicial takings.  However, the oral argument transcript seems more an exploration of property law than constitutional issues;  the littoral rights of landowners is not generally bandied about in constitutional law discussions.  Nevertheless, the emphasis on rights at common law is a familiar subject in previous takings clause cases.  Moreover, every takings clause case the Court considers has the potential to revitalize Lochner-era property rights.  As the "Legal Backgrounder" for the Washington Legal Foundation phrases it, at the question in Stop the Beach Renourishment is "Will the Court return some teeth to the Takings Clause, or hammer another nail into property rights’ coffin?"


December 2, 2009 in Cases and Case Materials, Current Affairs, News, Takings Clause | Permalink | Comments (0) | TrackBack (1)

Senate Judiciary Committee Hears Testimony on Iqbal, Twombly

The Senate Judiciary Committee heard testimony today from three witnesses on the impact of Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the two Supreme Court cases that heightened the federal pleading standard and resulted in a rash of dismissed suits and Senator Specter's bill, S. 1504, to undo those cases.  We most recently covered this here; the Blog of the Legal Times covered the hearing here.

John Payton, President and Director-Counsel of the NAACP LDF, urged the Committee to act immediately to undo the cases.  In contrast, Gregory Garre, former SG who argued Iqbal, testified that we can't yet know Iqbal's impact, and that any moves to undo that case are premature.  Stephen Burbank (Penn) proposed substitute legislation (in Appendix A, page 23 of his testimony) that would return the pleading standard to its level before Iqbal and Twombly, would declare those cases "inconsistent with the fundamental premises underlying the Federal Rules of Civil Procedure, with the Court's previous decisions interpreting those rules, and with congressional expectations formed and relied upon over a period of more than seventy years," and would provide for a "thorough study by appropriate institutions through processes that are open and inclusive."

According to the BLT, only one Committee member, Jeff Sessions, supported Garre's position urging caution.


December 2, 2009 in Due Process (Substantive), Fundamental Rights, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 1, 2009

DOMA, Obama and the Power of the Judiciary

Ninth Circuit Chief Judge Alex  Kozinski (pictured left) and Chief of the Office of Personnel Management, John Berry (pictured right below) seem to be at loggerheads.  

Kozinski As Kozinski explains in his recent Order,  Karen Golinski had been "denied a benefit of federal employment because she married a woman rather than a man," and despite DOMA "determined that violates this court's guarantee of equal employment opportunity," and ruled:

The Director of the Administrative Office of the United States Courts is therefore ordered to submit Karen Golinski's Health Benefits Election form 2809, which she signed and submitted on September 2, 2008, to the appropriate health insurance carrier. Any future health benefit forms are also to be processed without regard to the sex of a listed spouse.

__ F.3d ___, 2009 WL 4043529, citing and quoting In re Golinski, 2009 WL 2222884  (9th Cir. Jan.13, 2009).  Kozinski then notes,

No “party or individual aggrieved” by my decision appealed it.  The Administrative Office of the United States Courts (AO) complied with my order and submitted Ms. Golinski's form 2809 to the Blue Cross and Blue Shield Service Benefit Plan, Ms. Golinski's health insurance carrier. That's as it should be; the AO is subject to the “supervision and direction” of the Judicial Conference of the United States, and I exercised authority delegated by the Judicial Conference when I ordered relief. After the AO submitted Ms. Golinski's form, I thought this matter had concluded.

The Executive Branch, acting through the Office of Personnel Management (OPM), thought otherwise. It directed the insurance carrier not to process Ms. Golinski's form 2809, thwarting the relief I had ordered.  I must now decide what further steps are necessary to protect Ms. Golinski and the integrity of the Judiciary's EDR plans.

2009 WL 4043529 at 1-2 (citations and footnotes omitted).   Kozinski does not cite Marbury v. Madison, but he does say:Johnberry

if the theory of separate powers means anything, it's that the Executive cannot use its dominance over logistics to destroy our autonomy. Would we permit OPM to interpret a statute so as to require us to racially discriminate in what we pay our employees? Could the U.S. Marshals refuse to protect our courthouses because they disagree with our decisions? May the Treasury refuse to cut paychecks to judicial employees it believes are not suitable for their positions?

That those rights are not in question here is irrelevant. The power the Executive has arrogated to itself in this case would be enough to sustain those actions as well. Nor is it any answer that OPM could set out a plausible interpretation of the law to support its actions in this case.

Kozinski thus orders specific relief including ordering the Office of Personnel Management to rescind its directive to the insurer that "Ms. Golinski's wife is not eligible to be enrolled as her spouse."

 The response of John Berry, the Chief of the OPM (and perhaps ironically, the highest ranking openly gay member of the Obama Adminstration) has not yet been divulged.  However, Con Law Profs looking for a Marbury v. Madison issue for an upcoming exam might easily adapt this situation.


December 1, 2009 in Current Affairs, Equal Protection, Executive Authority, Recent Cases, Separation of Powers, Sexual Orientation, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

"Independent" Officer Subject to At-Will Removal, OLC Opines

The Office of Legal Counsel late last month opined that the President may remove the Federal Coordinator for the Alaska Natural Gas Transportation Projects at will, even though the Office of the Federal Coordinator is by statute "an independent office in the executive branch," and even though the Federal Coordinator by statute has a fixed period in office.

Congress created the office to coordinate federal agencies' efforts to facilitate the transportation of natural gas from the Alaskan North Slope.  Under 15 U.S.C. Sec. 720(d)(a), the office is "independent"; under 15 U.S.C. Sec. 720(d)(b)(1), the office enjoys a term "to last until 1 year following the completion of the [natural gas pipeline] project . . . ."

The OLC wrote that neither the statutory designation as "independent" nor the statutory period of the office impedes the President's power to remove the Coordinator at will, at any time.  The OLC:

First, the Supreme Court has long held fixed terms to impose a limit on service but not to imply tenure protection. Parsons v. United States (President can remove United States Attorneys even during their appointed four-year terms) . . . .

Second . . . [a]s we observed with respect to similar language, "[a]ll that should be inferred from the status of an 'independent agency' is that the entity is not located within another department or agency."  FHFB/RRB Removal at 4 n.5. . . . .

In short, "[b]ecause Congress did not explicitly provide tenure protection to the Federal Coordinator, the President . . . may remove her without cause."


December 1, 2009 in Appointment and Removal Powers, Executive Authority, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 30, 2009

Fed Chair Bernanke Reacts to Efforts to Curtail Independence

Federal Reserve Chairman Ben Bernanke wrote in yesterday's Washington Post that Senate proposals and a recent vote in the House Financial Services Committee threaten to undermine the independence of the Federal Reserve.


To support economic growth, the Fed has cut interest rates aggressively and provided further stimulus through lending and asset-purchase programs.  Our ability to take such actions without engendering sharp increases in inflation depends heavily on our credibility and independence from short-term political pressures.  Many studies have shown that countries whose central banks make monetary policy independently of such political influence have better economic performance, including lower inflation and interest rates.

Independent does not mean unaccountable.  In its making of monetary policy, the Fed is highly transparent, providing detailed minutes of policy meetings and regular testimony before Congress, among other information.

The House Committee apparently felt differently.  Every Committee Republican and a good number of Democrats voted on November 20 in support of an amendment sponsored by Reps. Ron Paul and Alan Grayson to cut restrictions on the Comptroller General's authority to audit the Federal Reserve.  The effect of the measure would be to increase Comptroller General audit authority over the Fed and to require Comptroller General auditing pursuant to its regulations.  The amendment is patterned on Paul-sponsored H.R. 1207, and, if adopted as part of the underlying legislation, would amend 31 U.S.C. Sec. 714, the provision outlining Comptroller General audit authority.

The Fed has enjoyed some measure of political independence by virtue of its extended Board terms since its creation in 1914.  That independence increased in 1935, when Congress removed the Secretary of the Treasury and the Comptroller of the Currency from the Board and increased Board terms from 12 years to 14 years.

This latest vote represents an effort to bring more political accountability to the Fed, an independent agency, by way of the Comptroller General, itself an independent office.  (The Comptroller General, of course, is the head of the U.S. Government Accountability Office, which is, by statute, "independent of the executive departments."  Like Fed Board Governors, the Comptroller General is appointed by the President, with the advice and consent of the Senate, and enjoys an extended tenure.) 

Under the Paul amendment, the relationship between the Fed and the Comptroller General inches closer to another relationship between two independent agencies, the Public Company Accounting Oversight Board and the Securities and Exchange Commission under the Sarbanes-Oxley Act.  (The SEC still maintains much greater control over the PCAOB under SOX than the Comptroller General maintains over the Fed under the Paul amendment.)  That relationship is now before the Supreme Court on Appointments Clause and separation-of-powers grounds.  The Court will hear arguments in that case next Monday, December 7.


November 30, 2009 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Recent Cases, Separation of Powers | Permalink | Comments (1) | TrackBack (0)