Constitutional Law Prof Blog

Daily Read: Corporate Free Speech

In their article, Commercial Expression and Business Regulation in the Shadow of Citizens United and Sorrell, available in draft on ssrn, authors ConLawProf Randy Bezanson (pictured), William O'Hare, and Robert Miller ask "whether the system and market- based flexibility accorded government in its regulatory action will continue to be respected." 

In interrogating this question, one of their three case studies of regulation is off-label drug marketing, the subject of yesterday's divided Second Circuit opinion reversing a criminal conviction on the basis of the First Amendment, and an application of Sorrell v. IMS Health, Inc.  In their consideration of off-label drug advertising more generally, they write:

the apparent overbreadth of specific applications of a regulation will seem obviously unconstitutional without a perspective that recognizes a speech restriction as part of a broader system of similar speech regulations that, added together, protect the systematic and market justifications of government action. It may be obvious that sophisticated consumers of off-label drug treatments, or sophisticated investors in the new issue market for stock, don’t need the information or the waiting periods or the other regulatory steps that government may impose. But if those steps do help the market system by assuring equal and complete consumer information, even if at some inconvenience to a sophisticated few, there is justification for the looser scrutiny that the Supreme Court has historically accorded regulation of commercial speech.

Worth a read for anyone teaching or writing in the commercial speech area.

RR

Daily Read: Joslin on the Responsible Procreation Government Interest of DOMA

Should the Court take certiorari in at least one of the circuit cases challenging DOMA, the Defense of Marriage Act, as is widely anticipated, the government interest will be at issue.  Courtney Joslin's article, Marriage, Biology, and Federal Benefits, forthcoming in Iowa Law Review and available in draft on ssrn, is a must-read on the "responsible procreation" interest that is often proffered.  Joslin (pictured)  argues that this interest is based on what she calls the "biological primacy:" an "underlying premise that the government’s historic interest in marriage is to single out and specially support families with biologically-related children."

Joslin's task is decidely not to assess the "fit" of DOMA's means chosen to this interest, under any equal protection standard, whether it be intermediate scrutiny as some, including the Second Circuit in Windsor  have applied, or rational basis as the First Circuit applied. 

Instead, Joslin interrogates whether this interest is factually true:  "Has the federal government historically accorded special solicitude and protection to families comprised of parents and their own biological children?"   She demonstrates that the interest is, at the very least, not a consistent one.  She examines the "history of federal family-based benefits in two areas: children’s Social Security benefits and family-based benefits for veterans and active members of U.S. military," and demonstrates that in a "vast array of federal benefits programs, eligibility is not conditioned on a child’s biological connection with his or her parent."

She concludes:

From the early years of federal family-based benefits, Congress both implicitly and explicitly extended benefits to children who were biologically unrelated to one or both of their parents. This unearthed history exposes that responsible procreation is based on normative judgments about sexual orientation and gender, not history and tradition.

Indeed, although Joslin does not discuss Loving v. Virginia, her article is deeply reminiscent of the Court's reasoning in Loving when it essentially rejected Virginia's proffered rationale of "racial integrity," with Chief Justice Warren writing that the "fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."  Joslin's article should be required reading for anyone analyzing DOMA. 

RR

Daily Read: Political Parties and Judging

It's something that is, perhaps increasingly, difficult to ignore: the political affiliations of federal judges. 

Adam Liptak's article in the NYT yesterday takes on the subject with a focus on the recent Michigan affirmative action decision from the en banc Sixth Circuit.  Liptak provides the breakdown: "Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president."   This, he argues, is consistent with a forthcoming book, The Behavoir of Federal Judges, an empirical study authored by Lee Epstein, William Landes, and Richard Posner. 

Liptak thus rejects - - - at least implicitly - - - the practice of SCOTUSBlog's preeminent reporter and commentator Lyle Dennison whose "note to readers" in his discussion of the Michigan affirmative action case explained; that he would not include "references to the political party affiliation of the Presidents who named the judges to the bench" because "the use of such references invites the reader to draw such a conclusion about partisan influence, without proof."  Denniston, however, did include a caveat: he would provide that information" when "it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove."

Whether it is a question of causation, correlation, or coincidence is an issue often raised by law students in ConLaw classes, and one that ConLawProfs struggle to answer from various perspectives.

For Liptak, however, there is predictive certainty.  Referencing the affirmative action case of Fisher v. University of Texas argued in October, he writes:

The justices’ votes in the Texas case are as yet unknown. But here is a good bet: every vote to strike down the program will come from a justice appointed by a Republican president, and every vote to uphold it will come from a justice appointed by a Democratic one.

RR
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Thanksgiving 2012

The relationship between Thanksgiving and the First Amendment's religion clauses, as well as to the economy, is a recurrent topic of constitutional conversation at this time of year.

President Obama's Thanksgiving Proclamation for 2012 includes several references to "God," such as:

"On Thanksgiving Day, individuals from all walks of life come together to celebrate this most American tradition, grateful for the blessings of family, community, and country. Let us spend this day by lifting up those we love, mindful of the grace bestowed upon us by God and by all who have made our lives richer with their presence."

The President has been criticized in the past for not including sufficient mentions of "God" in conjunction with Thanksgiving.

Obama's 2012 Proclamation repeats earlier invocations of two presidents, stating this year:

When President George Washington marked our democracy's first Thanksgiving, he prayed to our Creator for peace, union, and plenty through the trials that would surely come. And when our Nation was torn by bitterness and civil war, President Abraham Lincoln reminded us that we were, at heart, one Nation, sharing a bond as Americans that could bend but would not break.

The current President does not mention FDR, the president responsible for Thanksgiving being the second to last Thursday - - - rather than the last - - - for economic reasons.  According to the National Archives:

In 1939, however, the last Thursday in November fell on the last day of the month. Concerned that the shortened Christmas shopping season might dampen the economic recovery, President Franklin D. Roosevelt issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change and proclaimed Thanksgiving to be the last Thursday in November. For two years two days were celebrated as Thanksgiving - the President and part of the nation celebrated it on the second to last Thursday in November, while the rest of the country celebrated it the following week.

Meanwhile, there is controversy about so-called "blue laws" banning the opening of stores on Thanksgiving day itself.  Recall that the United States Supreme Court, in an opinion by Chief Justice Earl Warren, rejected the First Amendment challenges and upheld a criminal conviction under a Sunday blue law in McGowan v. Maryland, 366 U.S. 420 (1961). 

RR
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Daily Read: Karen Tani on New Deal Women Lawyers

With at least one person arguing that any recent surfeit in law graduates is due to law schools' "exploitation of the career aspirations of women in particular,"  Professor Karen Tani's article, Portia's Deal, published in Chicago-Kent Law Review and available in draft on ssrn, reminds us that women's aspirations for legal careers is not a recent phenomenon. 

Tani (pictured) argues that the New Deal "offered important opportunities to women lawyers at a time when they were just beginning to graduate from law school in significant numbers."  Tani focuses on three women: Sue Shelton White, Marie Remington Wing, and Bernice Lotwin Bernstein.  In her compelling article, she discusses their careers as well as the constitutional trenches of the New Deal.

Tani concludes:

According to conventional narratives, these women are not significant. They did not stand up before the Supreme Court and defend New Deal legislation. They did not become legislators, judges, or famous academics. Yet, their stories have much to offer us. White, the fiery suffragist who died too young, encourages us to consider the difference that gender made to the high‐stakes interpretive and administrative work of New Deal lawyers. White’s biological sex did not dictate the style or quality of her lawyering, but there are hints that  her path to the New Deal—a path that had everything to do with gender—affected the way that she interacted with colleagues and analyzed legal questions. Wing, the “hell‐raiser” from Cleveland, inspires us to think more deeply about power and place. Regional outposts of the federal government were not as desirable to young, male graduates of Harvard Law School, and yet, as Wing discovered, they were the sites of political influence and vital legal work. Bernstein is perhaps the most intriguing case study, since in pedigree and placement she was the female equivalent of one of Felix Frankfurter’s “Happy Hotdogs.” Unlike most of her male counterparts, who used the New Deal as a launching pad for celebrated careers in academia, private practice, and politics, Bernstein remained an administrative lawyer for decades. We need more information about the costs and benefits of this career trajectory, both for the individual and for society.

Together, the lives of all three women provoke one final question. In the area of social welfare and elsewhere, much law‐making happens neither at the top, with Congress and the appellate courts, nor at the bottom, with the people. It happens somewhere in between, with ground‐level decision‐makers and mid‐level bureaucrats. Who occupied that level of decision‐making in 1935? Who occupies it now? Much of the content of today’s law is their doing.

Tani's analysis is certainly worth considering when we talk, even implicitly, about who is entitled to become an attorney.

RR

Daily Read: Reporting the MSK Trial at Guantanamo

In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al.  We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.  

Recall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters.  Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover the proceedings, meant signing the 13-page Media Ground Rules document:

Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word includes and sets no upper limit on what Protected Information might be.

The geographical restraints also limit reportial opportunities:

For the most part, News Media Representatives are confined to a few acres of Guantánamo, an area known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.

And then there is the trial itself, with the imposition of a 40 second sound delay.

This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.

RR

Daily Read: Emma Larkin on Burma/Mynamar

As President Obama travels to Burma/Myanmar, becoming the first United States President to do so,  most ConLawProfs will be recalling Crosby v. National Trade Council, decided by the Court in 2000.   In an unanimous decision, the Court declared unconstitutional Massachusetts' 1996 procurement statute barring the state from doing business with almost any entity "doing business" with Burma.  The Court held the state law was invalid under the Supremacy Clause because of a Congressional grant of authority to the President over any economic sanctions for Burma.  The Massachusetts law thus undermined the diplomatic powers of the President.   

The repressive history of Burma/Myanmar is essential to understanding the President's current diplomacy as well as Massachusetts' legislation in Crosby. 

And essential to Americans seeking to understand Burma is the work of Emma Larkin.  Widely regarded as one of the best books on Burma is Emma Larkin's Finding George Orwell in Burma.  In the fascinating and well-written book published in 2006, Larkin - - - not her real name - - - writes of contemporary Burma and George Orwell's history in Burma, arguing convincingly that Orwell's novel 1984 was actually modeled on Burma and continued to be relevant.   Earlier this year, Larkin wrote compellingly of the "Burma Spring" the popularity of former dissident Aung San Suu Kyi, both in an essay and in a lengthy review of Peter Popham's The Lady and the Peacock: The Life of Aung San Suu Kyi.

Obama argues that his visit is an "acknowledgment that the country is making progress toward reform."  Read Emma Larkin's book, if you haven't already done so, to discover what this might mean.

RR

More Secession

Given that citizens of Texas have petitioned to secede from the United States, it is not surprising that people in the city of Austin have filed a petition on the same "We The People: Your Voice in Government" page, but  "petitioning" to secede from Texas.

And then there is El Paso; a petition is entitled  "Allow the city of El Paso to secede from the state of Texas. El Paso is tired of being a second class city within Texas," providing "El Paso has little in common with the rest of Texas. Its demographics are more similar to New Mexico. El Paso is also proud to be part of the United States and wants no part of a state whom publicly contemplates secession from our great nation."  Other petitions seek to keep the United States "united."

Secession has even caught on in a neighborhood of Brooklyn wishing to secede from another neighborhood, echoing previous rumors (and humor) that Long Island might secede from New York.

While secession does have a history - - - the Civil War - - - it is difficult to take the current talk very seriously.

RR

 

Daily Read: Petraeus, Bork, and Privacy

Is there an analogy between the discovery and publication of list of videos that then-nominee for Justice on the Supreme Court Robert Bork  checked out from a local DC store and the discovery and discussion of the gmail account of ex-CIA chief David Petraeus?  Are both invasions of privacy that provoke public outrage and should lead to Congressional action to protect individual rights?

Peter Maas makes the argument in "Was Petraeus Borked?" simultaenously posted on The New Yorker on ProPublica.

In describing the extent of the issue, he notes that "in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose 26 percent in the latest six-month reporting period, to nearly 8,000; the company said that it complied with 90 percent of the requests, either fully or partially."

Maas also quotes Robert Bork, not known as a friend of civil liberties, as resolutely ambivalent:  "Is there too much intrusion into private lives?  I can't answer that very well, because sometimes there is, sometimes there isn't."

The piece is worth a read for anyone considering how our constitutional notions of privacy shift and change.

RR
[image: "Eavesdropping" by Vittorio Reggianini (1858–1938) via]

Texas Secession Redux

As the secession discussion continues, prompted by "petitions" on a White House website as we discussed, it's worth reconsidering Texas' previous secession which was considered by the United States Supreme Court in Texas v. White in 1869.  The underlying issue was ownership of bonds, but resolution depended upon Texas' status. 

The Court was forthright about the "rebellion" and armed conflict, but deemed the Union "perpetual" and any acts by a state to break such a bond "null."  There is however, the possibility of "revolution" - - - or, perhaps more intriguingly, "consent of the States."

 

 

Here are the central passages from Texas v. White:

[During the Civil War], the relations of Texas to the Union were broken up, and new relations to a new government were established for them.

The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion, which these events made inevitable. During the whole of that war there was no governor, or judge, or any other State officer in Texas, who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State, except under the immediate protection of the National military forces.

Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?

It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States.

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that "the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States." Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners.

RR
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The Constitutional Status of Adultery in the Military

Adultery has been dominating the news, including questions about whether or not it can "still be a crime."  As a constitutional matter, any answer must invoke the Court's 2003 decision in Lawrence v. Texas.  Recall that Justice Scalia, dissenting, in Lawrence wrote that:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

As Scalia recognized, Lawrence "calls into question" the criminalization of adultery.  It would be very unlikely a law criminalizing adultery would survive a constitutional challenge after Lawrence.

But is the military different?  Military courts held that consensual adult sodomy - - - the same crime at issue in Lawrence - - - could be criminalized as a military matter, despite Lawrence, although the application of the consensual sodomy provision could be unconstitutional as applied in certain circumstances.  The central inquiry was whether there were "factors unique to the military environment" that allowed the acts to be constitutionally criminalized.

Writing in 2010, law student Katherine Annuschat, in her comment, An Affair to Remember: The State of the Crime of Adultery in the Military, 47 San Diego L. Rev. 1161, demonstrates "the military's willingness to pursue adultery prosecutions for questionable motives," and argues that "the obsolescence of these statutes in the public mind" and their questionable constitutional pedigree support removal of adultery from the enumerated offenses under the general Uniform of Military Justice article 134.   Similarly, writing a year earlier, attorney  Christopher Scott Maravilla, in The Other Don't Ask, Don't Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v. Texas, 37 Capital U. L. Rev. 659 (2009) concluded that the criminal sanctions for adultery, as well as sodomy, should be "constructively" removed from military laws, although sexual acts could be relevant to other violations of the military code of conduct.

It is doubtful that adultery - - - without more - - - can be constitutionally criminalized, even in the military context.  But perhaps there is always "more."

RR
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Daily Read: BBC and Freedom of Speech

For those following the British BBC scandal, the issue of Lord McAlpine's possible legal actions for defamation or libel - - - and against whom - - - raise comparative free soeech doctrines and theories.

An excellent discussion of the BBC controversy is over at Inforrm, including this useful background:

On 2 November 2012 the BBC Newsnight programme broadcast an item about sexual abuse at children’s homes in North Wales.  One victim, Steve Messham told the programme that the inquiry uncovered just a fraction of the abuse.  He said that  his abusers included “a leading Tory politician of the Thatcher era”.

The fact that the programme was going to make these allegations was widely reported before transmission and the “leading Tory politician” was identified on Twitter before broadcast as Lord McAlpine.   His name was widely disseminated on the internet after transmission but was not mentioned in the mainstream media.

 On 8 November 2012, the “Guardian” reported that “Mistaken Identity” had led to the abuse claims against the “Top Tory”, and named Lord McAlpine as the Tory in question.  Lord McAlpine then issued a statement denying the allegations Mr Messham apologised to Lord McAlpine over mistaken identity.  The BBC apologised for the Newsnight report and, on 10 November 2012, the Director General, George Entwistle, resigned.

 

For ConLawProfs interested in the free speech aspects of the BBC/McAlpine "affaire," a good place to start is Marin Roger Scordato's 2007 article, The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law, published in Connecticut Law Review and available on ssrn.  After analyzing a landmark 2006 case, Scordato argues that while the definition of protected speech in England “is more direct and very likely more accurate than its American counterpart, it fails to meaningfully distinguish among plaintiffs who arguably are in significantly different circumstances as possible victims of defamatory publications.”  Moreover, although the English standard “looks more broadly and thoroughly at the journalistic practice of the defendant, it does not ultimately provide to the valued speech the same level of protection from liability as the American actual malice standard.”

The status of the BBC as a governmental - - - or quasi-governmental - - - entity also complicates the "free speech" issues.

RR

Petitioning for Secession

Some people in more than a few states have begun to "petition" to secede from the United States.  Secession does come up from time to time; Texas has been a notable candidate, and in the intrastate context, there were even rumors (and humor) that Long Island might secede from New York. 

The most recent "attempts" occur on the White House House website, on its "We The People: Your Voice in Government" page.  The page quotes the First Amendment, including the petition clause (Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances).   The page explains:

The right to petition your government is guaranteed by the First Amendment of the United States Constitution. We the People provides a new way to petition the Obama Administration to take action on a range of important issues facing our country. We created We the People because we want to hear from you. If a petition gets enough support, White House staff will review it, ensure it’s sent to the appropriate policy experts, and issue an official response.

Among the petitions, this one from Missouri seems drafted from a common template:

As the founding fathers of the United States of America made clear in the Declaration of Independence in 1776:

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

"...Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and institute new Government..."

However, the one from Arizona alters the second paragraph to state that the

citizens of the great state of Arizona have the right to stand for their principles. That man is granted unalienable rights, which are not the dispensations of the government, but find their beginnings in God and come from God alone. These are the principles that our forefathers stood for, the principles upon, which our Constitution is based, and those in which we firmly place our belief and resolve.

And the one from Tennessee simply reads "Helping the people of Tennessee."

Predictably, there is one from Texas and it stresses Texas:

The US continues to suffer economic difficulties stemming from the federal government's neglect to reform domestic and foreign spending. The citizens of the US suffer from blatant abuses of their rights such as the NDAA, the TSA, etc. Given that the state of Texas maintains a balanced budget and is the 15th largest economy in the world, it is practically feasible for Texas to withdraw from the union, and to do so would protect it's [sic] citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our founding fathers which are no longer being reflected by the federal government.

Not all the petitions are from "red" states with electoral votes going to the losing Republican candidate in last week's election: there are petitions from residents of Delaware, Pennsylvania, and New Jersey.

The constitutional significance of such petitions is dubious at best, but the goal seems to be provoking a response from the President.

RR

More here

Daily Read: Elizabeth Warren on Federalism and Administrative Constitutionalism

With the election of Elizabeth Warren to the United States Senate, today might a good time to reread her  article Unsafe at Any Rate, published in Democracy: A Journal of Ideas in 2007.

Warren was arguing for the creation of a new federal agency, the Financial Product Safety Commission.  In doing so, she not only argued in favor of regulation (using an originalist argument among others), but also argued that federal regulation was appropriate:

The credit industry is not without regulation; credit transactions have been regulated by statute or common law since the founding of the Republic. Traditionally, states bore the primary responsibility for protecting their citizens from unscrupulous lenders, imposing usury caps and other credit regulations on all companies doing business locally. While states still play some role, particularly in the regulation of real-estate transactions, their primary tool–interest rate regulation–has been effectively destroyed by federal legislation. Today, any lender that gets a federal bank charter can locate its operations in a state with high usury rates (e.g., South Dakota or Delaware), then export that states’ interest rate caps (or no caps at all) to customers located all over the country. As a result, and with no public debate, interest rates have been effectively deregulated across the country, leaving the states powerless to act. In April of this year, the Supreme Court took another step in the same direction in Watters v. Wachovia, giving federal regulators the power to shut down state efforts to regulate mortgage lenders without providing effective federal regulation to replace it.

Recall that in Watters, the Court found no merit in the Supremacy Clause (preemption) and Tenth Amendment arguments.

Warren also argued that a federal agency could intervene more successfully than Congress because "the financial services industry is routinely one of the top three contributors to national political campaigns, giving $133 million over the past five years" and thus "the likelihood of quick action to respond to specific problems and to engage in meaningful oversight is vanishingly slim."  

Although Congress eventually passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, with a FPSC agency, Elizabeth Warren was not named as its head given strong opposition to her by the Senate - the legislative body she will now be joining.

RR
[image: Elizabeth Warren via]

First Amendment Problems With Prohibitions of Election Documentation?

Smartphone cameras plus social media distribution pose many possibilities of First Amendment challenges to laws prohibiting recording, such as the recording of law enforcement officers as we've previously discussed. 

On Election day, the existence of a wide array of laws prohibiting recording inside polling places - - - collected at Citizen Law Media Project - - - might be violated by a casual posting of a ballot to a facebook page.  Although many of the statutes seem to be aimed at prohibiting voter intimidation or at regulation of the media, and thus their extension to the recording of one's own vote would seem a matter of statutory construction, any construction would occur in light of the First Amendment, as would the intimidation and media regulations.  Of special constitutional concern are the laws and regulations that delegate (seemingly total?) discretion to local polling officials. 

The First Amendment interests involved would not only be the personal/artistic ones of an interesting facebook page or personal scrapbook, but also ones more central to democracy, such as identifying problems with voting protocols such as the machinery recording an incorrect vote (video below).

 

 

RR
[image of ballot via]

 

Daily Read: Take a Look at Glamour Magazine

While Glamour magazine might not be a usual ConLawProf read, the Women of the Year issue features none other than Supreme Court Justice . . . Ruth Bader Ginsburg pictured "wearing her signature white lace collar, at the Supreme Court in Washington, D.C."

Within the seemingly strict word limit, Dahlia Lithwick's profile manages to include quotes not only from Ginsburg, but also President Clinton, Justice Scalia, and Rachel Maddow. 

Unfortunately, Justice Ginsburg did not land the cover of Glamour, but this is a fun read and might prove inspiring for its targeted demographic of young women.

RR
[image via]

Dems Sue to Extend Early Voting in Florida

The Caucus blog at the NYT reports that state Democrats sued on Sunday to extend the state's early voting and that local election officials in five counties agreed to accept absentee ballots on Sunday.

The moves came in response to long lines at Florida's early voting sites on Saturday, with some voters reportedly waiting up to seven hours to vote, and Governor Scott's refusal to extend early voting to Sunday.  The moves by local election officials allow early voting on Sunday by way of absentee ballots in Miami-Dade, Palm Beach, Hillsborough, Orange, and Pinellas counties.  (In another case, a judge extended in-person, non-absentee early voting Sunday at one site in Orange County after a polling station was forced to shut down Saturday over a suspicious package.)

Recall that Florida changed its early voting law for the 2012 election, eliminating the Sunday before the election as an early voting day.  The change drew a lawsuit, Brown v. Detzner, which we covered here.  The judge in that case rejected the plainitffs' motion for a preliminary injunction in late September, leaving the changes in place for Tuesday's election.

SDS

Florida's Ballot Measure: Legislative Supremacy?

 Ballot Measure 5 before Florida voters on November 6 would, if approved, alter Florida's constitution to provide more power to the legislature at the expense to the judiciary and exceutive. 

Perhaps not suprisingly, the measure is sponsored by the Florida legislature.

 

Florida Supreme Court Building

The full text clarifies some of the details, but the summary is not necessarily enlightening:

 

Proposing a revision of Article V of the State Constitution relating to the judiciary. The State Constitution authorizes the Supreme Court to adopt rules for the practice and procedure in all courts. The constitution further provides that a rule of court may be repealed by a general law enacted by a two-thirds vote of the membership of each house of the Legislature. This proposed constitutional revision eliminates the requirement that a general law repealing a court rule pass by a two-thirds vote of each house, thereby providing that the Legislature may repeal a rule of court by a general law approved by a majority vote of each house of the Legislature that expresses the policy behind the repeal. The court could readopt the rule in conformity with the public policy expressed by the Legislature, but if the Legislature determines that a rule has been readopted and repeals the readopted rule, this proposed revision prohibits the court from further readopting the repealed rule without the Legislature's prior approval. Under current law, rules of the judicial nominating commissions and the Judicial Qualifications Commission may be repealed by general law enacted by a majority vote of the membership of each house of the Legislature. Under this proposed revision, a vote to repeal those rules is changed to repeal by general law enacted by a majority vote of the legislators present. Under current law, the Governor appoints a justice of the Supreme Court from a list of nominees provided by a judicial nominating commission, and appointments by the Governor are not subject to confirmation. This revision requires Senate confirmation of a justice of the Supreme Court before the appointee can take office. If the Senate votes not to confirm the appointment, the judicial nominating commission must reconvene and may not renominate any person whose prior appointment to fill the same vacancy was not confirmed by the Senate. For the purpose of confirmation, the Senate may meet at any time. If the Senate fails to vote on the appointment of a justice within 90 days, the justice will be deemed confirmed and will take office. The Judicial Qualifications Commission is an independent commission created by the State Constitution to investigate and prosecute before the Florida Supreme Court alleged misconduct by a justice or judge. Currently under the constitution, commission proceedings are confidential until formal charges are filed by the investigative panel of the commission. Once formal charges are filed, the formal charges and all further proceedings of the commission are public. Currently, the constitution authorizes the House of Representatives to impeach a justice or judge. Further, the Speaker of the House of Representatives may request, and the Judicial Qualifications Commission must make available, all information in the commission's possession for use in deciding whether to impeach a justice or judge. This proposed revision requires the commission to make all of its files available to the Speaker of the House of Representatives but provides that such files would remain confidential during any investigation by the House of Representatives and until such information is used in the pursuit of an impeachment of a justice or judge. This revision also removes the power of the Governor to request files of the Judicial Qualifications Commission to conform to a prior constitutional change. This revision also makes technical and clarifying additions and deletions relating to the selection of chief judges of a circuit and relating to the Judicial Qualifications Commission, and makes other nonsubstantive conforming and technical changes in the judicial article of the constitution.

 

The Florida Bar has strongly opposed the ballot measure; further discussion here and here.

The measure is seen by some as coupled with political efforts to vote against the "merit retention" of the three Florida Supreme Court justices- - - Fred Lewis, Barbara Pariente (pictured) and Peggy Quince - - - arguably because "the Florida Supreme Court removed from the ballot a nonbinding amendment allowing Floridians to refuse to buy mandatory health insurance." 

Another ballot initiative to watch on election day.

RR

Daily Read: Understanding Voter Fraud Prevention Efforts

While much has been written on voter fraud, Jane Mayer's article, The Voter-Fraud Myth, appearing in the New Yorker is one of the most in-depth and well-researched journalistic pieces.

She addresses voter identification proposals, such as those we've recently discussed in Texas, Pennsylvania, Minnesota, and Indiana, situating them in their political contexts and providing differing perspectives.

Mayer's conclusion, focused on proponents of voter identification laws, is sobering:

With legions of citizen watchdogs on the lookout for fraud, voters confused about the documents necessary to vote, and the country almost evenly divided politically, von Spakovsky is predicting that November 6th could be even more chaotic than the 2000 elections. He will play a direct role in Virginia, a swing state, where he is the vice-chairman of the electoral board of Fairfax County. Joining us at the conference table at the Heritage Foundation, John Fund, von Spakovsky’s co-author, told me, “If it’s close this time, I think we’re going to have three or four Floridas.” Von Spakovsky shook his head and said, “If we’re lucky only three or four.” If there are states where the number of provisional ballots cast exceeds the margin of victory, he predicts, “there will probably be horrendous fights, and litigation between the lawyers that will make the fights over hanging chads look minor by comparison.” Pursing his lips, he added, “I hope it doesn’t happen.” But, if it does, no one will be more ready for the fight.

RR

Daily Read: Obama on Roe v. Wade's Future

In an interview in Rolling Stone, President Obama responds to a query about the future of the constitutional right to abortion.

Do you have any fear that Roe v. Wade could be overturned if the Republicans win the presidency and appoint another Supreme Court justice?

I don't think there's any doubt. Governor Romney has made clear that's his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.

Obama also responds to questions about NFIB v. Sebelius, the Affordable Health Care Act opinion, including Justice Roberts' role.

RR