February 25, 2011
Iowa Supreme Court Update
The Governor of Iowa did not choose Professor Angela Onwuachi-Willig to fill one of the three vacancies on the Iowa Supreme Court resulting from last November's election, a possibility we last discussed here.
The process of selecting Iowa's judges is undergoing reconsideration.
But Iowa's highest court now consists exclusively of white men.
Iowa joins Idaho and Indiana as states with no women on their highest courts; a helpful chart of gender diversity of state high courts shows the District of Columbia with the highest percentage of women, 67%, followed by Tennessee with 60%.
While "at least one judge of color serves on the court of last resort in twenty-four states and the District of Columbia," according to a 2011 report from the American Judicature Society, yet several states had no minority judges on their appellate courts according to statistics published in an ABA journal in 2009.
(image: Arthur Moselely Channell, "An Amiable Judge", 1898, via).
The Obama DOJ's Position on DOMA: Constitutional Crisis or Constitutional Opportunity?
The Obama DOJ's announcement that it will no longer defend the constitutionality of the Defense of Marriage Act has provoked a range of reactions.
New Gingrinch, in the video below (via) states that the president "is not a one-person Supreme Court" and that
the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job."
Attorney General Holder anticipates such arguments in his original letter to Congress:
the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
Steve Sanders on the U Chicago Law School Faculty Blog supports the DOJ analysis; Tony Infanti discusses the tax consequences and Sheila Velez Martinez discusses the immigration aspects over at Feminist Law Professors.
February 24, 2011
District Court Upholds Health Insurance Mandate
Judge Gladys Kessler (D.D.C.) on Tuesday upheld the individual health insurance mandate in the federal health reform package, the Affordable Care Act. Judge Kessler granted the government's motion to dismiss the case, Mead v. Holder, handing the government its third district court victory. (We posted on the earlier two cases upholding the individual insurance mandate here and here. We posted on the two earlier cases ruling the mandate unconstitutional here and here. District court rulings are on appeal, but no federal appellate court has yet ruled on the constitutionality of the individual health insurance mandate.)
Plaintiffs in the case argued that they were outside the scope of congressional Commerce Clause authority, because they planned never to use the health care system. And if they did, they'd pay out of pocket. Moreover, they claimed, the individual mandate violates their religious freedom under the Religious Freedom Restoration Act.
Judge Kessler surveyed the Commerce Clause landscape in some detail and synthesized this three-part rule from Wickard v. Filburn, United States v. Lopez, United States v. Morrison, and Gonzales v. Raich:
- First, the Court must consider whether the decision not to purchase health insurance is an economic one.
- Second, if the decision is economic, the Court must determine whether Congress had a rational basis for concluding that such decisions, when taken in the aggregate, substantially affect the national health care market.
- Third, the activity may be found to be within the reach of Congress's Commerce Clause power if it is an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the interstate activity were regulated.
Op. at 35-36. (Internal quotes and citations omitted.)
The first part--whether the (in)activity is economic--has perhaps received the most attention in the public debates and court cases. But Judge Kessler had little trouble concluding that the activity was economic, ruling simply that "[b]oth the decision to purchase health insurance and its flip side--the decision not to purchase health insurance--therefore relate to the consumption of a commodity: a health insurance policy." Op. at 38. She dismissed the plaintiffs' related argument that the non-purchase is non-activity, not subject to Commerce Clause regulation: "It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not to do something. They are two sides of the same coin. To pretend otherwise is to ignore reality." Op. at 45.
Judge Kessler went on to rule that Congress rationally concluded that the decision not to purchase insurance substantially affected the health care market, and that the individual health insurance mandate was an essential part of the regulatory scheme--that it was a critical tool in preventing free-riding and cost-distribution by those who would opt out.
Judge Kessler ruled against the government on the General Welfare Clause: the penalty for not insuring was not a "tax," she ruled, because Congress never intended it to act as a tax.
She rejected the plaintiff's RFRA claim. She ruled that their argument that the mandate undermines their religion (because they believe that God will take care of their health, and the mandate forces them into a back-up plan) represented only a de minimis impact on their religious beliefs. And moreover, she ruled, the mandate is the least restrictive way for the government to achieve its compelling interest.
February 23, 2011
Obama DOJ: Holder Announces DOMA will Not be Defended because it is Unconstitutional
Eric Holder, Attorney General of the United States, informed Congress today that "After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment."
Holder's letter is worth reading in full. It contains a lengthy and substantive discussion of the law, focusing on equal protection theory and doctrine to support this conclusion:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.
Nevertheless, the letter states that DOMA will continued to be enforced by the Executive branch.
Holder also issued a Statement which outlines the arguments and conclusions.
This is a reversal of earlier policy in which the DOJ appealed a district judge's opinion that DOMA was unconstitutional. And it is quite different from the DOJ defense of DOMA in which the Obama Administration argued "DOMA is rationally related to legitimate government interests and cannot fairly be described as "born of animosity toward the class of persons affected.""
Holder will now "instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3."
February 22, 2011
The Tenth Amendment, Standing, and Criminal Conviction: Bond v. US Oral Argument
The Court heard oral argument today in Bond v. United States which involves the criminal conviction of Carol Ann Bond for a violation of 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
That this is no ordinary criminal appeal is evinced by the appearance of Michael R. Dreedben, as Deputy Solicitor General, Department of Justice, "on behalf of the Respondent, in support of the Petitioner.” If this is a case in which even the United States - - - who after all, prosecuted Ms. Bonds - - - agrees with the defendant, then why is this case in the United States Supreme Court?
The problem is the Third Circuit opinion, which held that Bond does not have standing to raise a Tenth Amendment challenge to the statute: Noting that there was a split in the circuits on the issue, the court stated it was “persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.”
There is little doubt that Bond has standing to raise the issue of whether the federal statute exceeds federal power, either under the Commerce Clause or the Treaty Power, but much more ambiguity regarding the Tenth Amendment Claim. Yet this prompts the query of the real difference between a Congressional lack of enumerated power argument and a Tenth Amendment argument, a subject that preoccupied the Court at first.
JUSTICE ALITO: . . . . Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?
MR. DREEBEN: I'm not sure, Justice Alito. I will assume with you that it is. The statute -
JUSTICE ALITO: If she possesses a chemical weapon.
MR. DREEBEN: I'm not sure that vinegar is a chemical weapon.
JUSTICE ALITO: Well, a chemical weapon is a weapon that includes toxic chemicals. And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's -- that's a chemical weapon.
After a bit of vinegar discussion, Justice Ginsburg asked if the argument had veered into the merits, to which Dreeben replied, "A lot further than I had intended, Justice Ginsburg. . . ."
Appointed to argue for the opinion below, Stephen McAllister crystalized the issue quite quickly:
The relevant standing doctrine in this case is the prudential rule against third-party standing. No one disputes here that the Petitioner has Article III standing. One of the difficulties in the case is that the only case that mentions specifically standing in this context is the Tennessee Valley Authority case [Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939)] and it clearly says if it is in fact a Tenth Amendment claim, unless you have a State official or the State, there is no standing.
Yet Roberts replied, "Pretty harsh, if we're talking about prudential standing, to deny that to a criminal defendant, isn't it?"
Later, Roberts again raised the relevance of the criminal context of the case and reiterated the enumerated powers/Tenth Amendment relationship:
CHIEF JUSTICE ROBERTS: . . . . it seems to me we've had a lot of discussion this morning about whether this is an enumerated powers claim or a Tenth Amendment claim. They really do kind of blend together, and it seems to me awfully difficult to put on a criminal defendant the responsibility to decide whether this is going to be an enumerated powers claim or this is going to be a Tenth Amendment claim. The basic principles do kind of merge together, and why does it make -- again, why does it make that much of a difference and why do you put the burden on the defendant to parse the claim one way or another, since I assume they can make pretty much all the same arguments under an enumerated powers [argument] . . . .
The Court’s opinion can be expected to address whether or not a criminal defendant has prudential standing to raise a Tenth Amendment claim and presumably provide guidance on what difference that makes when the defendant can raise a (lack of) enumerated powers claim.
February 21, 2011
One of Libyan leader Moammar Gadhafi's sons, Saif al-Islam Gadhafi, delivered a speech on Monday that blamed protests on everyone from criminals to Islamic extremists, warned of civil war if the protests continue, and said his father would fight to the last protestor.
Saif Gadhafi also called for a constitution. It wasn't the first time.
Libya doesn't operate under a constitution. Instead, Gadhafi runs the country according to the Green Book, a document in three parts, published in 1975, that outlines Gadhafi's theories on government. Its three parts:
- The Solution of the Problem of Democracy: The Authority of the People
- The Solution of the Economic Problem: Socialism
- The Social Basis of the Third Universal Theory
Here's just a little of what the Green Book has to say about law and constitutionalism (from Part One, section on The Law of Society):
Law represents the other problem, parallel to that of the instrument of government, which has not been resolved. Although it was dealt with in different periods of history, the problem still persists today.
For a committee or an assembly to be empowered to draft the law of society is both invalid anad undemocratic. It is also invalid and undemocratic for the law of society to be abrogated or amended by individual, a committee, or an assembly.
What then is the law of society? Who drafts it and what is its relevance to democracy?
The natural law of any society is grounded in either tradition (custom) or religion. Any other attempt to draft law outside these two sources is invalid and illogical. Constitutions cannot be considered the law of society. A constitution is fundamentally a (man-made) positive law, and lacks the natural source from which it must derive its justification.
The problem of freedom in the modern age is that constitutions have become the law of societies. These constitutions are based solely on the premises of the instruments of dictatorial rule prevailing in the world today, ranging from the individual to the party. Proof of this are the difference existing in various constitutions, although human freedom is one and the same. The reason for the differences is the variation in the assumptions and values implicit in diverse instruments of government. This is how freedom becomes vulnerable under contemporary forms of government.
The method by which a specific modality of government seeks to dominate the people is contained in the constitution. The people are compelled to accept it by virtue of the laws derived from that constitution, which is itself the product of the tendencies within particular instruments of government.
Presidents' Day: Where Are the Women?
"Where Are the Women?" is a query that is not limited to the category of United States Presidents.
The dearth of women working on Wikipedia has received much attention; less attention has been paid to a compilation by VIDA looking at figures from 2010 for influential outlets, including these revealing charts for The New Yorker, The New York Review of Books, and The New Republic. While not state actors, such media is certainly part of the "civil society" democracy contemplates.
And then there are law reviews. The newest issue of The Georgetown Law Journal is women-free. And there are a sufficient number of other law review issues and conferences of a similar composition to support a regular feature pondering the lack of women at Feminist Law Professors.
Quoting a journalist who noted that "If Bill Clinton was once considered America's first black president, Obama may one day be viewed as our first woman president," Frank Rudy Cooper has suggested that Obama may indicate we are all a bit more free to perform our gender and racial identities.
In Cooper's article, Our First Unisex President?: Black Masculinity and Obama's Feminine Side, available on ssrn and published shorty after the election, he argues that "Obama could not be too masculine because that would have triggered the Bad Black Man stereotype but he could not be too feminine because that would have looked unpresidential."
Something to contemplate this Presidents Day.
February 20, 2011
Voter Identification Laws and the Discourse of "Free and Fair Elections": West Virginia Weekend Spotlight on Atiba Ellis
A cornerstone of democracy is the "free and fair election." Recent events in Egypt and less dramatic ones in West Virginia have demonstrated the importance of the ballot box. Moreover, some argue that the acts of the Wisconsin governor should not be protested because he was duly elected.
Yet what makes an election "free and fair" is not universally agreed upon. Professor Atiba R. Ellis at the WVU College of Law views the U.S. history of the right to vote as a constant tension “between those who wish to constrain or restrict the vote by raising the cost and those who wish to make the vote more accessible by lowering the costs." In his article, The Cost of the Vote: Poll Taxes, Voter Identification Laws, and the Price of Democracy, 86 Denv. U. L. Rev. 1023 (2009), available on ssrn, he considers the controversy over voter identification laws, including voter photo identification requirements.
Such requirements are now in force in more than half of the states, although not in West Virginia or Wisconsin. A recent bill in North Carolina, HB 430, would add that state to those requiring photo identification, a proposal discussed by a television news report earlier this month and criticized by Chris Kromm in an article for the Institute for Southern Studies.
In his article, Ellis contends that photo identification laws create an economic barrier which the lower economic classes in our society cannot surpass. He begins with an analysis of political science research models, specifically the “rational actor model of voting behavior.” Id. at 1032. The premise of this model, Ellis notes, is that “voting enacts a cost on the voter.” Id. Such costs include, primarily, economic and structural costs. Through this model, the author contends that voters must “undertake a cost/benefit analysis to determine whether they will participate in the political process.” Id. at 1033. Ellis focuses his analysis on the direct and indirect costs of voting with respect to the “willingness and ability for potential voters to comply with the legal requirements related to voting.” Id. at 1034. Direct costs “relate to the express ability to access a ballot from a governing authority,” while indirect costs are “the costs a voter has to expend to become eligible to vote,” and which include, among other things, the costs of identifying oneself as a voter through some manner of official proof of identification. Id. at 1035. Such costs, Ellis argues, are “inherent in the act of voting.” Id.
After surveying the history of voting rights cases, Ellis addresses photo identification requirements and Crawford v. Marion County Election Board, 553 U.S. 181 (2008). The decision addressed a challenge to an Indiana law that required, with some important exceptions, voters to present a photo ID in order to vote. In a 6-3 decision, with the lead opinion by Justice Stevens, the Court found that “the interests of the state in maintaining the voter-ID law outweighed any impact that the statute would have on populations who may effectively be disenfranchised by the law.” Id. at 1057. The Court in Crawford applied the test from Burdick v. Takushi, 504 U.S. 428 (1992) to the challenged election regulation, a standard that calls for balancing the magnitude of the asserted injury to protected rights with the interests put forward by the state to justify the burden imposed. Even so, “the evaluation of injury to the claimant’s First and Fourteenth Amendment rights must precede any balancing of the claimant’s rights against governmental injury.” Id. at 1052.
Ellis’s central claim takes shape with a critical view of the Burdick test exemplified by the outcome in Crawford. Specifically, courts applying the Burdick test have "tended to discount, in the absence of significant evidence, the indirect economic costs to be taken into account when analyzing the effects of voter identification laws.” Id. at 1064. Indeed, the “inability to account for the indirect costs exasperates the long-standing problem of economic bias and the requirement of an economic stake within society in order to exercise the political right to vote.” Id. While acknowledging the important state interest of avoiding voter fraud, Ellis concludes that
the interest in election integrity must be balanced with the interest in ensuring that every otherwise-qualified voter can have access to the ballot. This is the core premise of American democracy—that everyone who can rightfully vote should be able to vote. The battle of access . . . is ultimately one of ensuring that there must not be any invidious requirement which prevents votes from voting. This is the tie that binds us together in our civic society and should not be easily discounted. . . . It is to this end of preserving the value of realistically complete access to American elections for all who are eligible to vote that our laws should be directed.
Id. at 1066.
To that end, Ellis calls for a “reordering of the Burdick test,” which “should be structured to required the state to demonstrate that the means it has adopted in its voter identification laws represent a significant interest in preventing voter fraud coupled with a showing that the conditional costs—direct and indirect—to the voter are minimized in the scheme the government is implementing.” Id. at 1067. By advocating a more robust voting rights jurisprudence that takes into account indirect economic costs, Ellis hopes that “we will be able to create an enduring and greater character for American democracy.” Id. at 1068.
(with J. Zak Ritchie)