January 22, 2013
Daily Read: Obama's Second Inaugural Address
President Obama delivered his inaugural adddress on January 21; the White House official transcript is here.
Whether one lauds it apropos of the Court's coming foray into the same-sex marriage debate, or interprets it as putting climate change center stange, or as lacking in specifics, or as requiring comparison to every other Presidential inaugural speech, it is certainly worth a listen.
January 21, 2013
Carol Anne Bond Going Back to the Supreme Court
The Court granted certiorari Friday in Bond v. United States - - - again.
Recall that the first time the Court heard Carol Anne Bond's case, it held that she did indeed have standing to assert a Tenth Amendment argument against her charge for violating 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement, the Chemical Weapons Convention, 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.
On remand, the Third Circuit held that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention." While the Circuit did find the prosecution of Bond puzzling, there was also much puzzlement over the statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."
It seems the Supreme Court is ready to clarify - - - or attempt to - - - Missouri v. Holland's famous statement.
[image of Methyldichloroarsine via]
Daily Read: Martin Luther King on Meet the Press 1965
In a 1965 "Meet the Press" interview, Martin Luther King speaks about civil disobedience, nonviolent protest, and racial equality, responding to the queries from the interviewers.
Worth a watch on this MLK Day, 2013.
Seventh Circuit Panel Upholds Wisconsin's Act 10
Reversing a federal district judge's holding that portions of Wisconsin's controversial Act 10 regarding public unions, the Seventh Circuit split panel's opinion in Wisconsin Education Association Council v. Walker upheld the constitutionality of the act.
Recall that the federal district judge had held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarantees and Act 10's prohibition of dues withholding for general employees violated the first amendment.
The Seventh Circuit majority emphasized that the Act 10's "speaker-based distinctions are permissible when the state subsidizes speech. Nothing in the Constitution requires the government to subsidize all speech equally."
Moreover, the Seventh Circuit majority found that Act 10 was viewpoint neutral, even as it admitted that
the Unions do offer some evidence of viewpoint discrimination in the words of then-Senate Majority Leader Scott Fitzgerald suggesting Act 10, by limiting unions’ fundraising capacity, would make it more difficult for President Obama to carry Wisconsin in the 2012 presidential election. While Senator Fitzgerald’s statement may not reflect the highest of intentions, his sentiments do not invalidate an otherwise constitutional, viewpoint neutral law.
On the Equal Protection claim, the panel majority applied rational basis review, in which "the law is presumed constitutional, and we impose a weighty burden on the Unions—they must “negative every . . . basis which might support” the law because we will uphold it “if there is any reasonably conceivable state of facts” supporting the classification." The panel rejected the argument that heightened rational basis attributable to animus should apply: "unfortunate as it may be, political favoritism is a frequent aspect of legislative action."
Judge David Hamilton dissented from the majority's decision upholding Wisconsin’s selective prohibition on payroll deductions for dues for some public employee unions but not others on the basis of the First Amendment. In his lengthy dissent, Judge Hamilton differs on the central point of viewpoint neutrality, noting that while "on its face, Wisconsin’s Act 10 seems viewpoint-neutral: public safety unions can have dues withheld from paychecks, while other public employee unions cannot." But he quickly observes: "Facial neutrality, however, is not the end of the matter."
Hamilton agreed with the district judge and credited the unions' arguments that Act 10 was a
pretext for viewpoint (here, political) discrimination. The first is the close correlation between various unions’ political endorsements in the 2010 Wisconsin governor’s race and their ability to continue payroll deductions. The second is the flimsiness of the State’s proffered rationales for drawing the line as it did between public safety and general employees and for barring payroll deductions of union dues for all but public safety employees. The third is the overtly partisan political explanation for the Act that was offered in the legislative debate.
While there are some minor disagreements on doctrine between the majority and dissenting opinions, for the most part they are in accord. Where they differ is in their essential understanding of whether the facts satisfy the requirement of viewpoint neutrality. Dissenting Judge Hamilton seems to have the better opinion in this regard; the majority opinion too often seems poised to conclude their is viewpoint discrimination and then retreats without explanation.
Perhaps the Seventh Circuit will proceed with en banc review.
January 20, 2013
CJ Roberts Swears In President Obama
Without a glitch this time: