Friday, April 16, 2010

Arkansas Court: State Constitutional Ballot Initiative Banning Adoption by Unmarried Couples Unconstitutional

Arkansas Act One, passed by the voters in November 2008 prohibits cohabiting same-sex couples and (unmarried) heterosexual couples from becoming foster or adoptive parents. 


Relying on the state constitution, Judge Christopher Piazza of the Sixth Judicial Circuit, has held the Act unconstitutional:

Due Process and Equal Protection are not hollow words without substance. They are rights enumerated in our constitution that must not be construed in such a way as to deny or disparage other rights retained by the people. 

Piazza found it "especially troubling" that "one politically unpopular group has been specifically target for exclusion by the Act."    While Piazza specifically rejected the federal constitutional claims, he noted that state constitutions can grant greater rights than the federal constitution.

The brief order is available here, thanks to Arkansas Times blog.


April 16, 2010 in Family, Federalism, Fundamental Rights, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Hospital Visitation and Decision-making

The Presidential Memorandum on Hospital Visitation seeks to 800px-Hospital_room_ubt insure that hospitals not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability, and guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected.  Obama noted that these problems have "uniquely affected"  "gay and lesbian Americans." 

The President and federal government have the power to accomplish such objectives, at least for hospitals that participate in Medicare or Medicaid programs, as a condition for receiving such funding. 

Establishing conditions for receiving federal funds is nothing new, of course.  

Recall Rust v. Sullivan, 500 U.S. 173 (1991), in which the Court upheld restrictions on projects receiving federal funds from providing or discussing abortions. 

Also recall Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) Inc., 547 U.S. 47 (2006), in which a unanimous Court upheld the Solomon Amendment that applied to universities, including law schools.  The law conditioned the receipt of federal funds such as grants and student aide, on allowing the military to recruit on campus notwithstanding any university or law school policies barring discrimination on the basis of sexual orientation by potential employers.


April 16, 2010 in Current Affairs, Disability, Executive Authority, Family, Federalism, Medical Decisions, Reproductive Rights, Sexual Orientation, Sexuality, Spending Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, April 15, 2010

OLC Finds Some Problems with Proposed Constitution of US Virgin Islands

The Office of Legal Counsel recently posted a memorandum identifying some problems with the proposed constitution of the U.S. Virgin Islands.  The memo, dated February 23, 2010, is the first that the OLC posted in 2010.


The USVI is an unincorporated territory of the United States.  A 1976 Act of Congress permits the USVI to propose a constitution for the Islands, which must (1) "recognize, and be consistent with, the sovereignty of the United States over the Virgin Islands . . . and the supremacy of the provisions of the Constitution, treatises, and laws of the United States applicable to the Virgin Islands," (2) "provide for a republican form of government, consisting of three branches: executive, legislative, and judicial," (3) "contain a bill of rights," (4) "deal with the subject matter of" provisions of the Organic Act and Revised Organic Act that "relate to local self-government," and (5) provide for a system of local courts.

Under federal law, the governor of the USVI must submit a proposed constitution to the President (which he did on December 31, 2009).  The President then transmits the constitution, with comments, to Congress, which may approve, modify, or amend the constitution by joint resolution.  The constitution, as amended, then goes back to the USVI for referendum.

Since 1976, two proposed constitutions failed at the referendum stage.  This most recent proposal grows out of a constitutional convention that ended in May 2009.

The OLC identified three primary concerns with the proposal:

1.  Property tax exemptions, office-holding, and voting rights based on place and date of birth, length of residence, and ancestry violate the Fourteenth Amendment Equal Protection Clause (extended to the USVI by statute).  OLC opined that the property tax exemption, which exempts property owned by USVI residents born before 1932 and their descendents violates equal protection, because there is no clear "legitimate governmental purpose that would be rationally advanced by providing property tax exemptions only for this class."  It further opined that the proposal's restrictions on holding certain offices and voting in certain elections to those born in the USVI violate equal protection: This looks an awful lot like unconstitutional durational residency requirements, and it, too, lacks a legitimate governmental interest.

2.  Ten- and fifteen-year residency requirements for the offices of governor, lieutenant governor, and judge also raise equal protection concerns under rational basis review.

3.  The section on management of territorial waters, which gives exclusive authority to the government of the USVI, derogates from the sovereignty of the United States over those waters and is therefore inconsistent with federal law.

The OLC discussed other provisions of the proposal as well and made some minor recommendations, but it found no other serious problems.


April 15, 2010 in Congressional Authority, Equal Protection, Federalism, Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Panel Presentations on Christian Legal Society v. Martinez

In anticipation of the oral arguments before the United States Supreme Court next Monday in Christian Legal Society v. Martinez, a case arising at Hastings Law School, both the Federalist Society and the American Constitution Society have held panels discussing the case.  Both panels are available for viewing.

The Federalist Society panel, held at the National Press Club yesterday, included discussion by Luke Goodrich, Deputy National Litigation Director, Becket Fund for Religious Liberty; Barry W. Lynn, Executive Director, Americans United for Separation of Church and State; Roger Pilon, Vice President for Legal Affairs, B. Kenneth Simon Chair in Constitutional Studies, and Director, Center for Constitutional Studies, The Cato Institute; and Paul M. Smith, Partner, Jenner & Block LLP.  

The American Constitution Society panel was held April 7, 2010 and included presentations by James Bopp, Jr., General Counsel, James Madison Center for Free Speech; Member of the Firm, Bopp, Coleson & Bostrom;  K. Hollyn Hollman, General Counsel, Baptist Joint Committee for Religious Liberty; Ayesha N. Khan, Legal Director, Americans United for Separation of Church and State; and Cliff Sloan, Partner, Skadden, Arps, Slate, Meagher & Flom LLP.

The panels provide a good overview of the doctrinal and theoretical arguments.  Students reviewing the case for class (or for a possible examination hypothetical) will find the discussions cogent and very accessible.


April 15, 2010 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, News, Recent Cases, Sexual Orientation, Sexuality, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Taxation and Privacy

"Surrogate birth mothers" Bcrawford often have income from the "service" they have provided, but must they report that income as income?   Or, as Bridget Crawford (pictured left) asks, does an income tax reporting requirement infringe upon a surrogate’s constitutional right to privacy, as envisioned by Griswold, Eisenstadt  and Lawrence?

Crawford's newest article, Taxation, Pregnancy, and Privacy, 16 William & Mary Journal of Women and the Law 327-368 (2010) (available on ssrn here), argues that surrogacy payments should be taxed, despite any constitutional (or other) claims of privacy.  She reaches the same conclusion about the sale of body parts, virginity (as auctioned to the highest bidder), and the proceeds from prostitution. 

It seems that substantive due process under the Fourteenth Amendment is no shield against the power of the Sixteenth Amendment.  Our most recent discussion of the Sixteenth Amendment, including efforts to repeal it is here.


April 15, 2010 in Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Privacy, Reproductive Rights, Scholarship, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 14, 2010

Denny Chin (and other) Nominations for Federal Court Judgeships

Judge Denny Chin (pictured right), 220px-Denny_Chin presently a United States District Judge for the Southern District of New York and well-known outside the district for presiding over the Bernie Madoff trial, was nominated for the Second Circuit by President Obama last October.   The nomination is one of over 100 vacancies on the federal courts, according to Alliance for Justice, whose most recent report, The State of the Judiciary: The Obama Administration 2009 (available here)  issued earlier this month lists Chin amongst the pending nominations, noting that Chin's judiciary committee hearing was on November 18, was reported out of committee on December 10, 2009 by a unanimous voice vote and that a confirmation vote on his nomination has not yet been scheduled.   The Alliance for Justice report also discusses the nomination process for now-Justice Sotomayor. 

Sotomayor's nomination process certainly deflected attention from the "lower court" judicial appointments.  As BLT reports, "Last year, not a single Obama judicial nominee was confirmed while the Senate spent months on the vacancy created by Justice David Souter's retirement. This year, Democrats say they are determined not to let the same thing happen because of Justice John Paul Stevens' decision to step down."   Politico reports that "Democrats are likely to start with noncontroversial nominations" such as that of "Denny Chin, who was sent to the Senate floor with unanimous consent from the Judiciary Committee in December but has yet to be confirmed," and noting that "Chin would become the only Asian American to serve on an appellate bench."   Another Asian-American nominee to the Court of Appeals, Goodwin Liu is proving more controversial. 


April 14, 2010 in Appointment and Removal Powers, Current Affairs, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 13, 2010

President Obama Declares National Emergency to Deal with Somalia

President Obama issued an executive order today declaring a national emergency to deal wtih the "unusual and extraordinary threat to the national security and foreign policy of the United States" by "the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea . . . ."

President Obama cited the International Emergency Economic Powers Act (the IEEPA), the National Emergencies Act, and section 5 of the United Nations Participation Act as authority to block property of certain persons contributing to the situation in Somalia.

The EO is perhaps a nice contemporary example of presidential authority to complement your study of Dames & Moore v. Regan?


April 13, 2010 in Executive Authority, Foreign Affairs, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

AG Holder Before the Senate Judiciary Committee

The Senate Judiciary Committee will hold an oversight hearing on the Department of Justice tomorrow at 9:30 a.m. featuring testimony by AG Eric Holder.  The hearing was rescheduled from March 23; it'll be webcast here.



April 13, 2010 in Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Monday, April 12, 2010

Gans and Kendall on Corporate Personhood in American Law

David Gans and Douglas Kendall of the Constitutional Accountability Center recently released the third narrative in the Center's series on Text and History, titled A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law.  The CAC released the narrative last month at the Senate Judiciary Committee hearing on Citizens United v. FEC, the OT09 case overturning federal restrictions on corporate and union electioneering spending, and thus protecting corporations under the First Amendment.


The narrative traces the history of corporate personhood from the early republic, through the enactment of the Fourteenth Amendment, the Lochner era, the New Deal, and Citizens United.  It well reflects the CAC's characteristically careful balance between excellent and timely scholarship and highly accessible writing on important constitutional issues of the day.  Here's a taste, from the Introduction:

The debate about how to treat corporations--which are never mentioned in the Constituion, yet play an ever-expanding role in American society--has raged since the framing era.  The Supreme Court's answer to this question has long been a nuanced one: corporations can sue and be sued in federal courts and they can assert certain constitutional rights, but they have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation.  Only once, during the darkest days of the reviled Lochner era, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People."  And even in the Lochner era, equal rights for corporations were limited to subjects such as contracts, property rights and taxation, and never extended to the political process.


April 12, 2010 in Fundamental Rights, News, Recent Cases, Scholarship | Permalink | Comments (2) | TrackBack (0)

Hutchinson on Racial Inequality and Identities

Darren Hutchinson, ConLawProf at American University and author of the popular Dissenting Justice blog, will be speaking at CUNY School of Law, April 19, 2010 at 6pm.   RSVP required:

Picture 1


April 12, 2010 in Conferences, Current Affairs, Fourteenth Amendment, Interpretation, Race | Permalink | Comments (0) | TrackBack (0)

Sunday, April 11, 2010

Federal Income Tax and the Sixteenth Amendment

With April 15 nearly upon us, we thought we'd take a look at some of the rhetoric and initiatives challenging the federal government's authority to lay and collect income taxes.  The Sixteenth Amendment, of course, authorizes Congress to impose an income tax:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. 

That amendment overturned the Supreme Court's 1895 ruling in Pollock v. Farmers' Loan & Trust Co.  Pollock ruled that taxes on rental income and dividend income were "direct" and thus subject to the requirement under Article I, Section 9, that "[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."  The case expanded the definition of "direct tax," which was originally designed to protect slave owners from capitations on slaves, and thus effectively ruled out any progressive income tax.  (The Court's approach in Pollock was at odds with its earlier, narrower approach defining "direct" in Hylton v. U.S. (upholding a tax on the use of carriages as an indirect tax) and Springer v. U.S. (upholding the income tax that Congress enacted during the Civil War).)

There's a lot of talk among libertarians and other small government types (including the Tea Partyers) that attacks the federal income tax and the Sixteenth Amendment.  (Google "tea party and sixteenth amendment," or "repeal sixteenth amendment" for a flavor.)  Some, like, which claims an affiliation with the Tea Party movement, seem to argue that the Sixteenth Amendment is illegitimate because of the way it passed:

Strange as it may seem, the Sixteenth Amendment (which gave the American people the afflication of confiscatory income taxes) was never supposed to have passed.  It was introduced by the Republicans as part of a political scheme to trick the Democrats, but it backfired.

And moreover, it violates other constitutional values:

Congress [in implementing the Sixteenth Amendment] went beyond mere enacting an income tax law and repealed Article IV of the Bill of Rights, by empowering the tax collector to do the very things from which that article says we were to be secure.  It opened up our homes, our papers and our effects to the prying eyes of government agents and set the stage for searches of our books and vaults and for inquiries into our private affairs whenever the tax men might decide, even though there might not be any justification beyond mere cynical suspicion.

(according to the web-site, quoting T. Coleman Andrews, former IRS commissioner).

Others, like Grover Norquist and Hillsdale College President Larry Arnn for The Claremont Institute, argue for repeal of the Sixteenth Amendment as a way to limit the federal government:

The income tax has another major fault: It undermines the Constitution's arrangement for limiting government.  The Internal Revenue Service simply has no proper place in our constitutional system.

There are two House Resolutions that would repeal the Sixteenth Amendment or abolish personal income tax.  And there are bills in the House and the Senate that would replace the income tax with a national consumption tax, to be administered by the states, and to abolish the IRS by statute.  The bills would eliminate the national sales tax if the Sixteenth Amendment were not repealed.


April 11, 2010 in Interpretation, News | Permalink | Comments (0) | TrackBack (0)