Constitutional Law Prof Blog

"Pay Czar" Debate

ConLawProf's Steven Schwinn (pictured below) is participating in an online debate/discussion with Michael W. McConnell and Martin Flaherty as part of one of the Federalist Society online debates.

 Steve Schwinn has this to say in his opening comments:

Let me start with a few comments about the unfortunate label "czar."  These "czar" positions have proliferated in recent administrations and, as we know, have drawn heavy criticism most recently in the Obama administration.  While some of these positions raise serious separation-of-powers and Appointments Clause issues, many, even most, do not.  Importantly—and thankfully—their constitutionality does not turn on their label alone.  Instead, it turns on their functions, their duties, and their processes of appointment.

The debate continues and is ongoing here.

RR

Update: Pregancy Policy for Army, Comments by Major General Cucolo

UPDATE: For a comment posted by Task Force Marne PAO from Cucolo see comments to previous post  here.

The "anti-pregnancy" policy announced by Major General Cucolo (pictured) previously discussed here, has caused quite a stir.  

A Department Defense briefing, December 22, 2009, available from the Federal News Service (and on Lexis), is headlined:

Defense Department Conference Call With Major General Tony Cucolo, U.S. Army, Commander, 3rd Infantry Division Via Teleconference From Iraq;

Subject: Pregnancy Provision In His Recent General Order

Cucolo specifically addressed the matter of court-martial for pregnancy:

Now, I regret that the term court-martial was bandied about or mentioned by one of the earliest written reports on this.  I think what they did was, they probably read the general order number one and saw the words there.
This is -- this aspect of general order number one is a good order and discipline issue.  And I believe that I can handle violations of this aspect with lesser degrees of punishment.
So no, I do not -- I have not ever considered court-martial for this.  I do not ever see myself putting a soldier in jail for this.  I have had four soldiers.  I have had to deal with four cases.  In each case, they received a written reprimand, a letter of reprimand.
Now, I had two choices with that written letter of reprimand.  I could have put it in their official file, which may or may not have impacted their career.  But it would stay in their file, be seen at promotion boards, things like that.
Or I could put it in their local file, which is local disciplinary action, stays in the unit for a finite period of time and does not follow them when they're transferred.
In the four cases I had, they got local letters of reprimand. The obviously you say -- you know, I mean, I hold the men accountable too.
So there should have been four males punished.  There were three males punished.  And the reason there weren't four is because one female soldier did not want to say the name of the father, and I dropped it.  I did not pursue it.

Responding to criticisms that the policy treats men and women differently, Cucolo had this to say:

The men stay in combat, and the women are sent home because they're pregnant, but both receive the same punishment, unless there are other circumstances.  Both receive the same punishment.
. . . .

I am the one responsible and accountable for these 22,000 soldiers.  The National Organization for Women is not.  Critics are not.  I appreciate -- I will listen to critics, and they add thought. But they actually don't have to do anything.  I have to accomplish a very complex mission, very complex.

We are on the Kurd-Arab faultline up here.  We are -- we are moving units, relocating things.  It's a very dynamic atmosphere.  And I am most concerned about the health, welfare, morale, well-being and fighting ability of every single one of my soldiers.  And I'm going to do what it takes to maintain our strength and bring as many home as I can.

I owe that to the American -- I believe the American people expect me to do everything I can to keep every one of the soldiers -- that their money, their taxpayer dollars, trained and got ready for this -- in the fight.

RR

Don't Ask, Don't Get Pregnant?: Military Policy for Iraq Bans Pregnancy or Impregnanting

Stars and Stripes, The Independent News Source for the U.S. Military Community, is reporting that a policy which went into effect in early November, and just reported, restricts the reproductive rights of military and civilian personnel:

The rule governs all those serving under Maj. Gen. Anthony Cucolo III, who commands Multi-National Division-North, including Balad, Kirkuk, Tikrit, Mosul and Samarra. According to the order, it is “applicable to all United States military personnel, and to all civilians, serving with, employed by, or accompanying” the military in northern Iraq, with few exceptions.

Someone would violate the policy by “becoming pregnant, or impregnating a soldier, while assigned to the Task Force Marne (Area of Operations), resulting in the redeployment of the pregnant soldier,” according to the order.

The General Order, Number 1 applicable to Iraq (download here) already prohibits, in subsection q “sexual contact of any kind with Iraqi nationals, foreign nationals, or local nationals who are not members of collation forces,” and in subsection r “cohabitation, residing, or spending the night in living quarters of any kind with a member of the opposite sex,” although excepting “lawfully married spouses” and “situations of military exigency.”

The pregnancy policy seems to have no exceptions.

RR

Obama Administration says Ninth Circuit Judge's Administrative Opinion not "Binding"

In a statement issued by Elaine Kaplan (pictured) OPM counsel and "open lesbian,"  the OPM and the Obama Administration refuse to comply with Ninth Circuit Judge Kozinski's order granting spousal benefits to lesbian federal employee's same-sex partner, previously discussed here.

Kaplan's statement, not yet on the OPM website but on the Advocate website here, provides in part:

It’s important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary. He was not acting as a federal judge in a court case. This does not mean that the inability to extend benefits to Karen Golinski’s spouse is any less real or less painful, but it is a critical point.

The decision in this matter was not reached lightly — after we learned of this development, we examined our options and consulted with the DOJ. DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in his administrative capacity, and not as a judge in a court case. Thus, this type of order does not change the existing law, which DOJ concludes prevents the enrollment. DOJ also advised us that DOMA prohibits same-sex spouses of federal employees from enrolling in the FEHBP and that the law does not permit OPM to allow this enrollment to proceed.

By characterizing Kozinski's order as administrative rather than an opinion by a judge in an Article III capacity, the Statement seeks to diffuse any arguments raising separation of powers issues.  The statement ends with a note that Obama has "personally" called for an end to DOMA. 

RR

ACORN DEFUNDING IS A BILL OF ATTAINDER: Court Enjoins the Continuining Appropriations Resolution Barring Funding of ACORN

Finding that the Constitution, art I, Section 9, prohibiting a "Bill of Attainder," does not allow "Congress to declare that a single, named organization is barred from all federal funding in the absence of a trial," District Judge Nina Gershon, EDNY, has just issued a preliminary injunction against enforcing the continuing appropriations bills that provide "None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations."

Judge Gershon's 21 page Order available as pdf here.  ACORN was represented by the Center for Constitutional Rights; press release here.

Gershon's opinion is well-reasoned and relatively straightforward, beginning with a brief recitation of the controversy surrounding ACORN and the opposing positions.   Quoting United States v. Brown, 381 US 347 (1965), Judge Gershon notes that the prohibition against bills of attainder reflect “the Framers’ belief that the Legislative branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.”  She then painstakingly applies the three factor test: whether the statute falls within the historical meaning of legislative punishment, whether the statute furthers nonpunitive purposes (the functional test), and whether the legislative record evinces an intent to punish.

She concludes that the continuing appropriations bills meet these criteria, and thus that there is a likelihood of success on the merits.  Her irreparable harm analysis focuses on the continued viability of ACORN, but also notes that the existence of a constitutional violation may lessen the need to prove harm.  She also finds the injunction to be in the public interest.

RR

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.

RR

(Thanks to Sam Sue of CUNY School of Law)

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

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.

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?"

RR

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.  

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:

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.

RR

VMI Update: Gender and the Virginia Military Institute

Of the 1,500 cadets on the campus of the Virginia Military Institute (VMI) this fall, only 126 are women - - - a dozen years after the United States Supreme Court, in its landmark opinion United States v. Virginia, ordered VMI to change its male only admission policy.

Yet the small number of female cadets is not the reason that the VMI is again subject to a federal investigation, although the small number may be a contributing factor.  

According to a report in The Roanoke Times in August:

A copy of the complaint -- obtained by The Roanoke Times through a Freedom of Information Act request -- sheds little light on the complainant's identity. Large portions of the document were redacted. Among the few readable sentences: "The language and terminology that is used and considered acceptable by VMI in the barracks reflects a climate and culture that is derogatory and discriminatory toward the women that are required as cadets to live in the barracks." And: "A male VMI graduate is almost always given preferential treatment."

According to a report November 22 in The Baltimore Sun, the "ongoing investigation of a sex discrimination complaint at the small, state-supported school" has  "taken nearly a year and a half — three times longer than usual."

VMI issued a statement on its website here.

For those thinking about a forthcoming constitutional law exam, this might be worth a look.

RR

(with thanks for the tip to Jen Hogg, CUNY School of Law, class of 2012)

Abortion and Health Care as Rights: Saturday Evening Review

The volatile link between abortion and heath care reform is being hotly debated.  The Stupak Amendment to the proposed Affordable Health Care for America Act, which passed in the House of Representatives,  provides that "no funds authorized or appropriated by this Act . . . may be used to pay for any abortion or to cover the costs of any health plan that includes coverage of abortion . . . ." with some exceptions.  As the focus on health care reform moves to the Senate, the Stupak Amendment continues to be a prominent issue, with NY's junior Senator vowing to defeat it. 

In her article Reproductive Rights and Health Care Rights, forthcoming in Columbia Journal of Gender and Law, available on ssrn here, Professor Jessie Hill of Case Western University, compellingly argues that the "right to abortion is also a health care right."

She contends that the right to abortion

is  a right to access  a particular medical procedure and a right to use that medical procedure to protect one’s health from significant harm, even if that procedure terminates a potential life. In fact . . . reproductive rights, including the right to contraception, have long been conceived in this way. The understanding of reproductive rights as health care rights, which has long been present in reproductive rights jurisprudence, has been downplayed by both courts and reproductive rights advocates in favor of a rhetoric centered on personal autonomy, equality, and dignity.

She explicitly - - - and seemingly enthusiastically - - - theorizes the right to health as only a "negative right to health—that is, a right to make medical treatment decisions without government interference,"  even as she insists that this negative right to health can serve as an important guarantor of reproductive rights, at least for those who can afford them.  

She notes that both "South Africa and Canada have recognized in some form a “right to health” in ways that bear partly, though not exclusively, on the abortion right."  Discussing  the well-known Minister of Health v. Treatment Action Campaign (TAC), 2002 (10) BCLR 1033 (CC) (S. Afr.), regarding the availability of an HIV antiretroviral drug,  she concludes that "South Africa has explicitly guaranteed a constitutional right to health that is understood, at least in part, as a positive entitlement to health care, including reproductive health services."   She contrasts Chaoulli v. Québec, [2005] 1 S.C.R. 791 (Can.), and concludes that " Canada, on the other hand, has not gone so far as to recognize a positive constitutional right to health care."  Yet both of her discussions are illuminating, and do, as she argues, indicate what might be trends in judicial recognition of health as a right.

In her concluding sections, she trenchantly notes several of the benefits of theorizing abortion as a medical right rather than a privacy or equality right.   Perhaps optimistically, she argues that

The right to health, as a right to medical decision– making autonomy, is an inclusive concept that touches on areas that are of concern or likely to one day be of concern to most people. As people age, they begin to worry more about their future interactions with the medical establishment in the context of end–of–life decision making, access to appropriate palliative care, and possibly to experimental drugs; in particular, they may reasonably fear that intrusive government regulators will attempt to control those interactions. There may be substantial political support for the idea that the government should not dictate health care decisions, whether they are decisions about experimental treatments for cancer or reproductive health care.

She also astutely contends that

emphasizing the medical side of abortion rights may engage non–obstetrician physicians more in reproductive rights issues.  After all, many of the legal restrictions that apply to abortion providers would probably strike other physicians as outrageous if applied to them.

As the health care debate's obsession with abortion continues, this is an article worth reading.

RR

Same-sex marriage updates: New York and Texas

New York's highest court today (download here) affirmed the rejection of a taxpayer challenger to directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. 

The case may be most interesting to constitutional law professors for what it does not hold; the challengers abandoned almost all of their state constitutional law claims before the Court of Appeals.

In considering the one possible extant constitutional law claim, the Court of Appeals construed it as a statutory claim:

Plaintiffs' remaining cause of action, which alludes to the separation of powers doctrine, boils down to the claim that defendants acted "inconsistently with the Legislature's pronouncements on spousal benefits." Specifically, plaintiffs allege that defendants acted in violation of Civil Service Law §164.

The Court's opinion concludes,

We end, by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it "will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made."

UPDATE: NYLJ article here.

The issue of same-sex marriage is presently before the New York Legislature.

Meanwhile, in Texas,

{Texas update from Texas Lawyer here}

Barbara Ann Radnofsky, a candidate for state Attorney General is reportedly arguing that a DOMA-like amendment to the Texas constitution actually bans all marriages.  The amendment, now in Article 1 §32, provides:

This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Radnofsky seems to be arguing that a plain meaning interpretation of the constitutional provision prohibits all marriages.

RR

Dred Scott & Harriet Scott Plaque next to Taney Statute

Justice Roger Taney, a Supreme Court Justice, lived in Frederick, Maryland and practiced law there.  Thus, it is not surprising that the town of Frederick would have a monument to Taney.  It is also not surprising that not everyone would feel Taney should be honored with a monument; Justice Taney is most most well-known for authoring the Dred Scott decision.

As reported yesterday, the town of Frederick has installed a plaque as a tribute to Dred and Harriet Scott.  As the reports note, this occurred after extensive discussions and planning (the plaque itself bears the year 2008).

RR

Who is Lady Brenda Hale?

"A home maker as well as a judge, she thoroughly enjoyed helping the artists and architects create a new home for The Supreme Court."   The Supreme Court in question is the new Supreme Court of the United Kingdom.

Brenda Hale, whose full title is Lady Hale, Justice of The Supreme Court, The Right Honorable the Baroness Hale of Richmond, is the only woman on The Supreme Court.   In addition to describing her as a "home maker as well as a judge," The Supreme Court's website biographical entry states:

Lady Hale became the United Kingdom’s first woman Lord of Appeal in Ordinary in January 2004, after a varied career as an academic lawyer, law reformer, and judge. She is now the first woman Justice of The Supreme Court.

After graduating from Cambridge in 1966, she taught law at Manchester University from 1966 to 1984, also qualifying as a barrister and practising for a while at the Manchester Bar. She specialised in Family and Social Welfare law, was founding editor of the Journal of Social Welfare and Family Law, and authored a pioneering case book on ‘The Family, Law and Society’.

A 2004 profile of Lady Hale in The Guardian, when Hale was the first woman and the youngest to join The Supreme Court's predecessor, is less staid.  The Guardian described how Hale served on the Law Commission presiding over a "far-reaching revamp of family law including no-fault divorce," which was seen by some as subverting family values.  Apparently, her personal life also came under scrutiny:  She and a fellow Law Commissioner were scolded for marrying each other "only nine days after her divorce and ten days after his."  

 Opponents to her judicial appointment criticized her as a "hardline feminist," although according to The Guardian Hale admits to being a "being a "softline" feminist who believes in equality for men and women."  Yet she has also agreed that women judges are different from male judges.

Justice Brenda Hale and Justice Ruth Bader Ginsburg participated in an hour long discussion at Georgetown last year.  Hale's discussion serves as an excellent primer of the British judicial system, including the powers of the judiciary to declare a law void.  Ginsburg and Hale address their Court's citation of international law and foreign law. 

The UK Supreme Court website, including the cases for the Michelmas term, is also worth a look.

RR

More listening and more diversity needed on SCOTUS, says Justice Thomas

Justice Clarence Thomas, in a talk at the University of Alabama School of Law, yesterday

reportedly said that the Justices already know where they stand before oral argument, and asked,

"So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it."

(The recent USA Today article we discussed here described Clarence Thomas' questioning style as "silent in his seat.")

The Tuscaloosa Times reported  that Thomas also stated that he "preferred to hire law clerks from modest backgrounds," and was quoted as stating, “There are too many up there who think they should be there because they’re from an elite background.”

And as the Montgomery Advertiser reported, Thomas advocated for more diversity:

A native of Georgia and the only current justice from the South, Thomas said the court is too dominated by Ivy League lawyers and lacks regional diversity. People constantly worry about racial, gender and ethnic diversity, he said, and home states matter, too.

"My goal is to have a court that is fair, and I think it's fair when we are fair in selecting people from all parts of the country, from all walks of life," Thomas said.

The newspaper continued, however, that "Thomas graduated from the Yale University law school," adding that  "eight of the nine current justices graduated from Ivy League schools."

RR

Interracial Marriages as Children's Rights: Robson's Saturday Evening Review

There was startling news last week of a Louisiana justice of the peace who said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have.  As one of my students phrased it, "Has Loving v. Virginia been overruled?"

The judge's "concern for the children" rationale is one that is often proffered by governments.  In Reflections on Loving and Children's Rights, 20 U. Fla. J.L. & Pub. Pol'y 11 (2009), scholar Barbara Bennett Woodhouse (pictured right) and co-author Kelly Reese interpret the 1967 case of Loving v. Virginia as a landmark case in the area of children's constitutional rights.  They write:

As it touches the lives of younger generations, Loving has played a central role in the development of children's rights to equality, privacy, agency, dignity and protection.

How can a case about marriage have such a broad legacy for children? Children define themselves and are defined by law in relation to those who bring them into the world, who claim them as their own and who guide their upbringing. Because of Loving and the cases that followed from it, the current generation of children, like no other before, enjoys the right to equal protection of the laws, regardless of the race or marital status of their parents. This generation also enjoys, as never before, the liberty to envision building families free from state-sanctioned discrimination. Nevertheless, pockets of discrimination remain, marginalizing many children who are growing up in nontraditional families and preventing many children from equal access to the benefits of a legally recognized family relationship. As long as these forms of discrimination continue, the legacy of Loving will remain unfulfilled.

They argue that marriage operates as a "gatekeeper" to children's rights, even though many of the disabilities of children born "out of wedlock" have been whittled away using constitutional doctrine.  They extend their argument to the children of same-sex couples, including the wedge issue of adoption.  Most interesting in this short piece are some of the observations by Barbara Bennett Woodhouse regarding advocacy, teaching, and personal experiences. 

There have been many calls for sanctions against the Louisiana Justice of the Peace and the couple has reportedly sued him.  Perhaps the judge could be required to read Loving v. Virginia as well as the article by Woodhouse and Reese; perhaps he might be required to a responsive reflection.

RR

English Only Consumer Protection Defeated

The proposed Consumer Financial Protection Agency Act of 2009, HR 3126, would establish the Consumer Financial Protection Agency as an independent executive agency to regulate the provision of consumer financial products or services.   The bill was approved by the House Financial Services Committee today, but only after a robust markup.

One amendment was offered by Representative Chris Lee, R-NY, seeking to strike a provision regarding consumer protection  "language accessible materials for non-English speakers" and to prohibit the Agency from requiring any disclosures in any language other than English.  The amendment was defeated 40 - 29 (see item 38, HR 3126 here).

For an excellent discussion of the status and constitutionality of a wide array of English-only laws and policies in the United States, see Watch Your Language! The Kansas Law Review Survey of Official-English and English-Only Laws and Policies, 57 U. Kan. L. Rev. 669 (2009).

RR

Joan Biskupic on Stevens and Questioning Styles

USA Today's article on Justice Stevens reports he is keeping his retirement cards "close to his robes," although at age 89 it is "no secret" he might leave the Court. 

The piece by Joan Biskupic is based on a 75 minute interview with Justice Steven and shares a number of interesting quotes:

"We're getting to a point that our cases are revisiting issues that I wrote on 10, 20, 30 years ago," he says. "I really have felt pretty good about re-reading the opinions I wrote many years ago. I have to confess that."

There is also an interactive feature by Joan Biskupic on all of the Justice's questioning styles during oral arguments:

Hydra-headed hypos from Justice Breyer?  

This makes a nice link to post on your course website for students to enjoy.

RR

Matthew Shepard Act Passes House of Representatives

The House of Representatives passed the Matthew Shepard Hate Crimes Prevention Act, as part of the National Defense Authorization Act of 2010.  

The Act, named for Matthew Shepard (pictured below),  

would authorize federal assistance to states and localities in prosecuting hate crimes and would itself criminalize acts of violence "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person" under these circumstances:

`(i) the conduct occurs during the course of, or as the result of, the travel of the defendant or the victim--

`(I) across a State line or national border; or
`(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct;
`(iii) in connection with the conduct, the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
`(iv) the conduct --

`(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.

The Congressional power at issue is obviously the Commerce Clause with the following supporting findings:

(6) Such violence substantially affects interstate commerce in many ways, including the following:
(A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.
(B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.
(C) Perpetrators cross State lines to commit such violence.
(D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.
(E) Such violence is committed using articles that have traveled in interstate commerce.

Yet the Congressional findings also include references to the 13th, 14th, and 15th Amendments in relation to "race, color, or ancestry."

A defendant convicted under this federal act would most likely attack the constitutionality of the statute as lacking Congressional power as in the Violence Against Women Act in United States v. Morrison, 529 US 598 (2000) and the Gun Free Schools Act in United States v. Lopez, 514 US 549 (1995). 

Meanwhile, the Matthew Shepard Act might provide an excellent in-class exercise reviewing Congressional power under Commerce Clause and Section 5 [of the the Fourteenth Amendment].

RR

Judicial Nominations for the Federal Courts

From a White House Press Release:

Today, President Obama nominated Judge Denny Chin for a seat on the United States Court of Appeals for the Second Circuit and Judge O. Rogeriee Thompson for a seat on the United States Court of Appeals for the First Circuit. Judge Chin currently serves as a U.S. District Court Judge for the Southern District of New York. Judge Thompson currently serves as an Associate Justice on the Rhode Island Superior Court.

 Chin (pictured left) and Thompson (right) are two nominations, 

but there is some belief that Obama needs to "pick up the pace."  As the Alliance for Justice reports in its factsheet, "As of September 15th, 2009, President Obama has nominated judges for 8 of 21 vacant circuit courts of appeal seats,"  and "nominated judges for 9 of 72 vacant district court seats."  This is compared with George W. Bush on September 15, 2001:  23 nominations for 34 vacant circuit court seats, and 30 of 81 vacant district court seats.  As Alliance for Justice calculates: On the Circuit Court level, the discrepancy in nomination rates between President Bush and President Obama is 23 to 8, or a difference of 68% to 38%; and on the district court level, the discrepancy in nomination rates between President Bush and President Obama is 30 to 9, or a difference of 37% to 13%. 

RR

Sotomayor's first interview

On C-Span on video here.  The newest Justice describes the call from President Obama, the drive to Washington, D.C., and preparing for her first speech.

RR