Friday, May 7, 2010

President Obama to Seek Line Item Veto

President Obama will propose legislation this month to give him greater power to curtail congressional spending bills, according to Friday's New York Times.

The measure would reportedly give the President 45 days after signing a spending bill to submit back to Congress a list of items to be rescinded.  Congress would then have 25 days to vote the rescissions up or down, without amendment.

The proposal is designed to give the President more control over specific line items in massive spending bills that he must otherwise sign or veto in toto.

The Supreme Court overturned the line-item veto in 1998 in Clinton v. New York.  That version of the line-item veto allowed the President to "cancel" a single line-item in a larger spending bill by reporting the canceled provision back to Congress.  The item would be canceled upon receipt of the report by Congress, after the rest of the bill became law.  Congress could override a canceled provision by a majority vote in both houses.

The Court in Clinton v. New York ruled that this procedure violated Article I, Section 7, the Presentment Clause:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

This requires President to sign the entire bill, or to veto the entire bill and send it back.  It does not allow the President to sign a mere portion of a bill and send the rest back.  The 1998 version of the line-item veto thus violated the Presentment Clause. 

The reported new version solves this problem.  The effect of the rescission process in the reported proposal would be to initiate an entirely new bill--a bill that would amend the one the President first signed.  (The President, of course, has the power to recommend legislation under Article II, Section 3.)  After the new bill passed both houses, it would presumably come back to the President's desk, and he'd sign it or veto it as a new bill.  The procedure satisfies the Presentment Clause and related separation-of-powers concerns (which the Clinton v. New York Court declined to address).


May 7, 2010 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (2) | TrackBack (0)

New Jersey Court Rules Gov. Christie's EO Invalid

The New Jersey intermediate appellate court ruled on Friday that Governor Chris Christie's executive order including labor unions in the state's anti-pay-to-play law infringed upon the legislature's core law-making authority in violation of state constitutional separation-of-powers.  (We previously posted on Governor Christie's relationship with the New Jersey courts here.)

The case, Communication Workers of America, et al. v. Christie, involved Governor Christie's Executive Order Number 7, which added labor unions to the state law that prohibits "business entit[ies]" from receiving government contracts after making a political contribution to a state official or political party.

The Governor argued that state employee labor unions' collective bargaining agreements were "government contracts" for the purpose of the anti-pay-to-play law, effectively prohibiting public sector labor unions from contributing to state political campaigns.

But the language of the anti-pay-to-play law suggests that the law applies only to more traditional, procurement-related government contracts.  And by its plain terms the law applies to "business entit[ies]."

The court ruled that Governor Christie's executive order stretched the meaning of the law in applying it to collective bargaining agreements (which aren't traditional, procurement-related contracts) and to labor unions (which aren't business entities).

The ruling has a terrific state constitutional separation-of-powers analysis between pages 33 to 55, relying upon precedent, structure, and text--like this separation-of-powers clause in Article III, paragraph 1:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial.  No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others except as expressly provided in this Constitution.


May 7, 2010 in Comparative Constitutionalism, Recent Cases, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

In Memoriam: Rhonda Copelon

ConLawProf, constitutional law litigator, and Vice-President of the Center for Constitutional Rights, Rhonda Copelon (pictured below) died yesterday, May 6, 2010.


She argued Harris v. McRae, was a founding member of CUNY School of Law, and in recent years concentrated on international women's human rights. 

Video interviews, more about her work, and a photo slide show is available here.


May 7, 2010 in Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, May 6, 2010

ACS 2010 Convention

The American Constitution Society opened registration for its 2010 National Convention at the Renaissance Mayflower Hotel in Washington, D.C., from June 17 to June 19.  Featured speakers include Senator Al Franken, Rep. Linda Sanchez, and Newark Mayor Cory Booker.


May 6, 2010 in Conferences | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 5, 2010

Constitutionality of National Day of Prayer

Today, May 6 is the national day of prayer by Presidential Proclamation:

by virtue of the authority vested in me by the Constitution and laws of the United States of America, do hereby proclaim May 6, 2010, as a National Day of Prayer.  I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us.  

(Read the rest of the proclamation here.)


 Family Saying Grace,  Anthonius Claeissins c 1585 via

Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan which declared the first Thursday in May the "National Day of Prayer."  This update provided a date certain to the previous law, passed by Congress in 1952 after the intensive lobbying efforts of Billy Graham.

A national day of prayer by presidential proclamation raises an Establishment Clause issue.  Earlier in April, District Judge Barbara Crabb decided a summary judgment motion in favor of the Freedom From Religion Foundation (the same party who was denied standing in its suit against faith-based funding in Hein decided in 2007 by the Supreme Court).  Judge Crabb declared the national day of prayer unconstitutional in a 66 page opinion that discusses the complexities of Establishment Clause doctrine.  She states that "the government has taken sides on a matter that must be left to individual conscience" and the absence of a "secular purpose" for the national day of prayer is fatal under Establish Clause doctrine, specifically the 1971  Lemon [v. Kurtzman] test.  Crabb opined: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."

The opinion attracted widespread attention including in WaPo and an insightful post from Howard Friedman over at Religion Clause here.  Obama's DOJ  is appealing the ruling.

Prayers, ceremonies, and other prayer events are expected to occur since the order has been stayed.  The Pentagon's National day of Prayer event will lack the originally scheduled Franklin Graham, son of Billy Graham; the Army has rescinded his offer deeming inappropriate Graham's comments that Islam is an offensive religion. [Update on Graham's activities today here].


May 5, 2010 in Current Affairs, Executive Authority, Fundamental Rights, News, Religion | Permalink | Comments (0) | TrackBack (0)

"Four Dead in Ohio": Congressional Resolution on Kent State

House Resolution 1272  "Commemorating the 40th anniversary of the May 4, 1970, Kent State University shootings,"  text below, was adopted today by a vote of 413-0. 

Two members voted "present" because of the wording resolution according to Politico.



Commemorating the 40th anniversary of the May 4, 1970, Kent State University shootings. Whereas the year 2010 marks the 40th anniversary of the Kent State University shootings that occurred on May 4, 1970; Whereas, on such date, Ohio National Guardsmen opened fire on Kent State students who were protesting the United States invasion of Cambodia and the ongoing Vietnam War; Whereas four unarmed students (Allison Krause, Jeffrey Miller, Sandra Scheuer, and William Schroeder) were killed and nine others (Alan Canfora, John Cleary, Thomas Grace, Dean Kahler, Joseph Lewis, Donald MacKenzie, James Russell, Robert Stamps, and Douglas Wrentmore) were injured; Whereas the site of the May 4 shootings was entered in the National Register of Historic Places, the official list of the Nation's historic places worthy of preservation, in February 2010; Whereas, to preserve the memory of the May 4 shootings and encourage inquiry, learning, and reflection, Kent State has established a number of resources, including the May 4 Memorial, individual student memorial markers and scholarships in memory of the four students mentioned above who were killed, an experimental college course entitled `May 4, 1970 and its Aftermath', and an annual commemoration sponsored by the May 4 Task Force; and Whereas Kent State has engaged the internationally renowned design services firm, Gallagher & Associates, to assist in the development of the May 4 visitors center as a central place where individuals can explore and better understand the May 4 shootings:

Now therefore be it Resolved,That the House of Representatives, in commemoration of the 40th year anniversary of the Kent State University shootings that occurred on May 4, 1970--

(1) recognizes the tragedy of the May 4 shootings and the implications that the shootings have had not only on Kent State and the local community, but also on the Nation and the world; and

(2) applauds the development of the May 4 visitors center as an additional primary resource to preserve and communicate the history of the May 4 shootings, its larger ethical and societal context and impact, and its enduring meaning for our democratic Nation.


May 5, 2010 in Congressional Authority, Executive Authority, Federalism, History, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 4, 2010

Justice O'Connor on Arizona Immigration Law SB 1070

Arizona may have gone a little too far. 

Immigration is the province of the federal rather than state government.

Racial profiling may be a problem.

These are the sentiments of retired Justice Sandra Day O'Connor on Arizona Immigration Law SB 1070 (our most recent discussion here).  O'Connor's remarks are reported by WSJ  and SFGate (SF Chronicle) from a Q&A today at the private high school in San Francisco from which her husband graduated. 


(photo: Sandra Day O'Connor with her husband, John O’Connor and President George W. Bush, May 2004 in the Oval Office; courtesy wikimedia)


May 4, 2010 in Current Affairs, Equal Protection, Preemption, Race, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Monday, May 3, 2010

New Jersey Supreme Court under Governor Chris Christie

Wallace_j1 A state constitutional conflict is brewing in New Jersey over Governor Chris Christie's non-"reappointment" of John Wallace, the only African-American of the seven state justices on the New Jersey Supreme Court. Justice Wallace (pictured right) was appointed in 2003 and his seven year term expires May 20, 2010.

Christie has been quoted as criticizing the court for its activism:

The court over the course of the last three decades has gotten out of control,” Christie said during a press conference in Trenton. “It inappropriately invaded the executive and legislative constitutional functions. It’s not for the court to set some of the policies that I believe that they’ve set. And I’ve talked all during the campaign about changing the court. The only way to change the court is to change its members.”

Christie seemingly has the power to change the court's members under the NJ state constitution:   Article VI, Section VI, paragraph 3 provides that the Justices of the NJ Supreme Court "shall hold their offices for initial terms of 7 years and upon reappointment shall hold their offices during good behavior" and "shall be retired upon attaining the age of 70 years." 

The nonreappointment of a Justice on the expiration of the seven year term is unprecedented according to quoted NJ legislators, news, and the NYT.

Wallace would have faced mandatory retirement in 22 months, but Christie chose to remove him from the bench in favor of nominating Anne Patterson, a 51 year old white woman, insurance defense attorney, and Republican contributor

The appointment of Patterson may be difficult; A state senator is reportedly intending to block the confirmation hearing of Patterson. 

[Update here].


May 3, 2010 in Appointment and Removal Powers, News, Race, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Beyond Citizenship: Bosniak's Theory of Personhood in Constitutional Law

What's the difference between a citizen and a person?  Sometimes the difference is profound, as demonstrated by the current controversies surrounding Arizona Immigration Law, SB 1070, which we've most recently discussed here. 

Other times, citizenship and personhood are conflated, especially in constitutional discourse surrounding equality (think of the phrase "second-class citizen").

Bosniak ConLawProf Linda Bosniak (pictured left)  trenchantly argues in favor of personhood in her latest article, Persons and Citizens in Constitutional Thought,  8 International Journal of Constitutional Law 9-29 (2010) (on ssrn here). For Bosniak, it is important to "challenge the exclusionary commitments associated with nationalist conceptions of citizenship," and to prefer "personhood" over "citizenship."   Thus, I think Bosniak would eshew the theoretical project of "sexual citizenship," an endeavor I have critiqued, positing "personhood" as more acceptable.

But as Bosniak notes,

In much the same way that the concept of citizenship has needed critical unpacking, personhood, as a preferred basis for constitutional subject status demands interrogation as well. Personhood raises as many questions as it answers, and in the context of constitutional thought, it promises much more than it can deliver.  

Thus she looks at personhood in a variety of contexts, including the very "thin" personhood that is afforded to "aliens" and contrasted with citizenship.  Yet she also theorizes about the ways in which personhood can be evaded:  "territoriality," "community" (consider persons in contrast to "the people"), and situations of "war and emergency."  Personhood have many problems, as Bosniak demonstrates, but she concludes that "while it is context-dependent and context-enabled, the idea of personhood also contains the normative and rhetorical resources to challenge every context in which it is situated — including the national constitutional context itself."

Add Bosniak's brief but rich article to your summer reading list and perhaps your syllabus.


May 3, 2010 in Comparative Constitutionalism, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Interpretation, Scholarship, Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)