Constitutional Law Prof Blog

State AGs Lay Out Constitutional Case Against "Cornhusker Kickback"

Thirteen state AGs--all Republicans--sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid setting out their constitutional objections to the provision in the Senate health care reform legislation that exempts Nebraska from paying costs of new enrollees in the Medicaid program.  (Instead, under the provision, the federal government would pick up these additional costs.  Senator Ben Nelson is the only senator to have successfully negotiated such an arrangement for his state.)  We most recently posted on this here.

From the letter:

In Helvering v. Davis . . . the United States Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a "display of arbitrary power."  Congressional spending cannot be arbitrary and capricious.  The spending power of Congress includes authority to accomplish policy objectives by conditioning receipt of federal funds on compliance with statutory directives, as in the Medicaid program.  However, the power is not unlimited and "must be in pursuit of the 'general welfare.'"  South Dakota v. Dole . . . .  In Dole the Supreme Court stated, "that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." . . .  It seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal health care, but also ensuring that the states share with the federal government the cost of providing such care to their citizens.  This federal interest is evident from the fact this legislation would require every state, except Nebraska, to shoulder its fair share of the increased Medicaid costs the bill will generate.  The provision of the bill that relieves a single state from this cost-sharing program appears to be not only unrelated, but also antithetical to the legitimate federal interests in the bill.

This seems deeply confused on a number of points.  First, both Helvering and Dole emphasize the expansive nature of the spending power and Congress's--not the courts'--discretion in determining what constitutes the "general welfare."  From Helvering: 

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views.  We will not resurrect the contest.  It is now settled by decision.  United States v. Butler. . . .  The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents.  Yet difficulties are left when the power is conceded.  The line must still be drawn between one welfare and another, between particular and general.  Where this shall be placed cannot be known through a formula in advance of the event.  There is a middle ground, or certainly a penumbra, in which discretion is at large.  The discretion, however, is not confided to the courts.  The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.  This is now familiar law.

Next, the AGs ask too much of the "arbitrary" standard.  This is a very low standard, not requiring much.  Surely the Nebraska compromise cannot be "arbitrary."  This is especially true in light of the all-too-numerous state-specific benefits that we see in any major piece of legislation--any one of which is at least as "arbitrary" as the Nebraska compromise. 

Third, it's not clear how or why conditional spending plays any part in a constitutional analysis of the Nebraska compromise.  Nothing's conditioned here.

Finally, it's not at all obvious that a part of the purpose of the legislation is to get states to pay jointly with the federal government.  As Professor Mark Tushnet said, the legislation could ultimately aim to get the federal government to pay all of the increased costs; Nebraska simply represents the first step.

The other points in the letter seem equally confused.  For example, the Privileges and Immunities Clause of Article IV has been interpreted as a restriction only against the states, not Congress.  (The Privileges or Immunities Clause of the Fourteenth Amendment obviously doesn't apply at all--by its plain terms it restricts only the states.)  There's no Due Process problem here.  And any Equal Protection problem would get only rational basis review.  The courts would almost certainly uphold the provision for the reasons that Professor Tushnet articulated, among others.

The AGs dropped the Port Preferences Clause claim.

SDS

States Fight Health Care Reform (Again)

We posted in September on the growing movement in the states to oppose federal health care reform, writing that Arizona seemed to be leading the way.

Now Arizona and a handful of other states are fighting a second round against federal health care reform, according to the New York Times.

Here's the problem: The health care reform legislation that passed the Senate last week would expand coverage in large part by expanding Medicaid.  But some states, including Arizona, have already taken steps to expand Medicaid coverage.  Under the legislation they'll have to pay more than other states who have not expanded coverage.  In short, the states that have already expanded coverage will subsidize those that have not.

Medicaid coverage by states varies widely.  For example, according to the NYT, Arkansas provides Medicaid coverage for working parents who earn only up to 17 percent of the federal poverty level, while Minnesota covers working parents who earn up to 215 percent of the federal poverty level.

Arizona citizens voted to expand Medicaid coverage in 2000.  As a result, the state estimates that in the first seven years of the Senate bill its share of the costs would be $17 billion.  If the state didn't expand coverage, its share would be merely $1.4 billion.

SDS

Senate Votes on Constitutionality of Health Insurance Mandate

Just before this morning's vote on the health reform package, the Senate voted 39-60 against a point of order raised by Senator Ensign that the health insurance mandate exceeds congressional authority under Article I, Section 8, and violates the Fifth Amendment.

Senators Ensign and Hatch yesterday raised the constitutional objectionson the floor (beginning on page S13721 of the December 22, 2009, Congressional Record); Senator Leahy defended the constitutionality of the mandate (beginning on page S13751 of the December 22, 2009, Congressional Record).

The constitutional arguments are by now familiar.  Ensign and Hatch argued that the mandate amounts to a regulation of inactivity by requiring the purchase of insurance; this exceeds congressional authority under the Commerce Clause (which permits Congress to regulate interstate commerce).  They read David Rivkin and Lee Casey's WSJ op-ed, their Washington Post op-ed, and Randy Barnett, Nathaniel Stewart, and Todd Gaziano's Heritage Foundation piece into the record.  Leahy argued that the mandate is well within congressional Commerce Clause authority as defined by the Court in Gonzales v. Raich, among other authorities--that health insurance, and, by extension, the mandate, has a substantial effect on interstate commerce.  Leahy read Erwin Chemerinsky's LA Times op-ed into the record.

The debate is an excellent example of the Constitution outside the courts--a good supplement to your Spring Term classes on congressional authority.

We've previously covered the constitutional debates here, here, and here.

SDS

Times: Undo Iqbal, Restore Access

The New York Times yesterday ran an editorial urging Congress to overturn Ashcroft v. Iqbal, the case that came down last spring and effectively heightened the pleading standard for plaintiffs in federal court.  (Thanks to Con Law Prof Blog editor Ruthann Robson for the heads up.)  We most recently covered the issue here.

The Times is right in framing the issue as an access question.  As we've written here and here, lower courts have used Iqbal to dismiss hundreds of complaints for failure to meet the pleading standard set in the case.  (We of course don't know exactly how many of these cases might also have been dismissed under the pre-Iqbal plain-statement standard.  But the rash of dismissals in the wake of Iqbal, and citing Iqbal, suggests that this case is responsible, as the Times writes, for curtailing access to the courts.)

Congress can undo the effects of Iqbal and return the pleading standard to the pre-Iqbal level.  Senator Specter introduced legislation here; Representative Jerrold Nadler introduced legislation here.  We looked more carefully at the legislation here.

SDS

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

DHS Extends REAL ID Compliance Deadline, Advocates Reforms

Department of Homeland Security Secretary Janet Napolitano last week extended the December 31 deadline for states to materially comply with the REAL ID Act.  The Secretary left in place, however, the May 10, 2011, deadline for full compliance with the Act.

The REAL ID Act (Division B, Title II, starting page 81), signed by President Bush in May 2005, requires state-issued identification to meet certain federal requirements if they are to be used for federal purposes, like airline screening.  The Electronic Privacy Information Center has good background information here. 

States balked, arguing that the requirements amounted to an unfunded mandate and insufficiently protected privacy.  Most recently, the National Governors Association wrote Secretary Napolitano stating that at least 36 states could not materially comply by the December 31 deadline and asking for an extension.

In granting the extension, Secretary Napolitano also pushed for repeal of the REAL ID Act, reform of the requirements, and enhanced privacy measures in pending legislation in both the Senate and House.  (The Secretary advocated repeal of the REAL ID Act as early as last spring.)

SDS

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

Holiday Gift for the Con Law Prof in Your Life

If you're in search of the perfect holiday gift for the Con Law Prof in your life, consider the Visual History of the Supreme Court of the United States, published by Timeplots.  The History includes an amazing amount of information about the Court, graphically (and attractively) displayed all in one place.  Framing available.

 SDS

Pentagon Announces Policy to Assist with Voter Registration

The Defense Department this week announced a new policy to ask all military personnel if they want to register to vote when they relocate to a new base.  The New York Times reports here.

The initiative is designed to address long-standing problems with military personnel registering and voting.  It comes in the wake of a provision (Sections 575 to 589) in the Defense Department authorization, passed in October, that would make it easier for overseas citizens and military personnel to vote absentee.

Senator Cornyn (R-TX) reportedly held up confirmation of President Obama's nomination for under-secretary of defense for personnel and readiness until the Defense Department agreed to this change.

SDS

Federalist Society Debates "Pay Czar," PCAOB

The Federalist Society is hosting two debates in their on-line debate series, one on the constitutionality of the "pay czar," the other on the constitutionality of the Public Company Accounting Oversight Board.  (I posted on the "pay czar" most recently here; I posted on the PCAOB most recently here.)

The pair juxtapose nicely on separation-of-powers and Appointments Clause issues.  The PCAOB debate, argued at the Supreme Court just last week in Free Enterprise Fund v. PCAOB, asks the question whether Congress overstepped its bounds and went too farin creating the PCAOB, an "independent" regulatory board within the already "independent" SEC.  The "pay czar" debate asks whether Congress didn't go far enough in vesting the Secretary of the Treasury with appointment power for the Office of Master for Compensation.

The PCAOB arguments are more typical of the kinds of claims we've heard in cases like Morrison v. Olson (upholding the independent counsel), where the claim is that Congress intruded on an area reserved to the executive.  We've also heard these arguments from unitary executive theorists, perhaps especially during the Bush Administration.

Arguments against the "pay czar," in contrast, say that Congress didn't go far enough--that it wasn't specific enough in its vesting to meet the demands for inferior officers under the Appointments Clause.

While the two debates together nicely bookend Appointments Clause and separation-of-powers questions, together they won't help us draw any lines.  The PCAOB case pushes the outer edge of what Congress can authorize without intruding on the executive; the "pay czar" debate goes the other way and pushes the outer edges of what the executive can do without specific authorization from Congress.  They make an interesting comparison, but they're too far apart to help us move forward in defining precise lines.

SDS

A Constitutional Play at the AALS

Actor, playwright, and Con Law Prof Paul Baier (LSU) is previewing his new play, "Father Chief Justice": Edward Douglass White and the Constitution at the Louisiana Supreme Court on January 6, 2009--during the AALS Annual Meeting.  More on the play here.

Just a few seats remain, so contact Steve Errick Managing Director, Aspen Publishers now to reserve your spot.

SDS

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

"State Sovereignty" and the Health Insurance Mandate

NPR's Morning Edition this morning reported on state movements to sidestep any health insurance mandate that might come out of the health care overhaul now before Congress.  (We previously reported on these here.)  These are state constitutional and state statutory measures that say that individuals shall not be required to purchase health insurance.

If Congress has authority to enact an individual health insurance mandate, these state measure run up against the Supremacy Clause: They are almost surely unconstitutional, as conflicting directly with the federal requirement.

But advocates of the measures nevertheless claim that they interfere with "state sovereignty."  As one advocate in the last line of this morning's story said, "No Supreme Court has ever been more sympathetic to state sovereignty than the current Court."

Whether that's right or not, it almost surely would not affect the Supremacy Clause analysis (unless the Court were willing to undo well settled Supremacy Clause principles).  So what does it mean?

One possible answer: A mandate's interference with "state sovereignty" means that Congress lacks authority under the Commerce Clause and Necessary and Proper Clause to enact a mandate in the first place.  This interpretation might draw support from U.S. v. Lopez (holding that Congress lacked authority under the Commerce Clause to enact the Gun Free School Zone Act) and U.S. v. Morrison (holding that Congress lacked authority under the Commerce Clause to enact the civil damages provision of the Violence Against Women Act).  The majority in both of those cases referred to the slippery slope that might result if Congress had authority to enact those laws: "Congress could regulate any activity that it found was related to the economic productivity of individual citizens . . . .  Under the[se] theories . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign."  But neither case turned on this slippery slope, and the interference with traditionally state regulated activities alone is surely not enough to render congressional action unconstitutional.  See Gonzales v. Raich (upholding a federal drug possession law).

State sovereignty claims aside, some (including some commentators on this blog) have argued that Congress lacks authority under the Commerce Clause to impose a mandate, because not having health care (the activity regulated) is not a commercial activity.  Stated differently: Congress can restrain or regulate economic activity; but it cannot require economic activity.

This argument makes two mistakes.  First, it distinguishes a restriction (a regulation) with a requirement (as non-regulation), and, relatedly, it distinguishes action (as economic activity) with non-action (as non-economic activity).  It's not at all clear that the courts view "economic activity" this way.  For example, the Eighth Circuit in U.S. v. Howell, 552 F.3d 709 (2009) recently upheld a federal provision requiring former sex offenders to register as sex offenders under the Commerce Clause.  That court rejected the criminal defendant's argument that Congress lacked authority to regulate non-action under the Commerce Clause.  Similarly, the Second Circuit in U.S. v. Sage, 92 F. 3d 101 (1996), upheld a federal law criminalizing the failure to pay past child support obligations.  The Sage court addressed the question squarely:

Sage argues that the Act is not within the Commerce Clause power and thus invalid on its face because it concerns not the sending of money interstate but the failure to send money.

Such reasoning would mean that Congress would have no power to prohibit a monopoly so complete as to thwart all other interstate commerce in a line of trade.  Yet the Sherman Act . . . is within the Commerce Clause power. . . . To accept Sage's reasoning would disable the United States from punishing under the Hobbs Act . . . making it a crime to "obstruct" interstate commerce, someone who successfully prevented the interstate trade by extortion and murder.  There would be no trade to obstruct.

Sage at 105 (citations omitted).  These cases might be distinguished because they only require activity that is already required under state law, or because they require limits to economic activity.  But they--and Howell--also suggest that the courts do not draw the sharp line between restrictions and requirements, actions and non-actions, that this argument assumes.

And with good reason.  In the health care context, an election not to purchase health insurance is every bit an economic activity as an election to purchase.  It's those significant interstate economic costs associated with individuals' elections not to purchase that in some measure sparked the health care debate in the first place.  Not purchasing, in this context, is an economic activity.

But the argument makes a second mistake.  The Supreme Court has never required only "economic activity" as a subject of regulation under the Commerce Clause.  In Lopez, Morrison, and Raich, the Court was quite clear that Congress can regulate activity that has a substantial effect on interstate commerce (in addition to the channels and instrumentalities of interstate commerce).  Decisions not to purchase health insurance, "economic" or not, surely have such a substantial effect--again, it's that effect that's driving much of the movement for reform.

Whatever the merits of the policy arguments against an individual mandate, these Commerce Clause arguments based on "state sovereignty" and lack of economic activity do not render them unconstitutional.

SDS

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

Fed Chair Bernanke Reacts to Efforts to Curtail Independence

Federal Reserve Chairman Ben Bernanke wrote in yesterday's Washington Post that Senate proposals and a recent vote in the House Financial Services Committee threaten to undermine the independence of the Federal Reserve.

Bernanke:

To support economic growth, the Fed has cut interest rates aggressively and provided further stimulus through lending and asset-purchase programs.  Our ability to take such actions without engendering sharp increases in inflation depends heavily on our credibility and independence from short-term political pressures.  Many studies have shown that countries whose central banks make monetary policy independently of such political influence have better economic performance, including lower inflation and interest rates.

Independent does not mean unaccountable.  In its making of monetary policy, the Fed is highly transparent, providing detailed minutes of policy meetings and regular testimony before Congress, among other information.

The House Committee apparently felt differently.  Every Committee Republican and a good number of Democrats voted on November 20 in support of an amendment sponsored by Reps. Ron Paul and Alan Grayson to cut restrictions on the Comptroller General's authority to audit the Federal Reserve.  The effect of the measure would be to increase Comptroller General audit authority over the Fed and to require Comptroller General auditing pursuant to its regulations.  The amendment is patterned on Paul-sponsored H.R. 1207, and, if adopted as part of the underlying legislation, would amend 31 U.S.C. Sec. 714, the provision outlining Comptroller General audit authority.

The Fed has enjoyed some measure of political independence by virtue of its extended Board terms since its creation in 1914.  That independence increased in 1935, when Congress removed the Secretary of the Treasury and the Comptroller of the Currency from the Board and increased Board terms from 12 years to 14 years.

This latest vote represents an effort to bring more political accountability to the Fed, an independent agency, by way of the Comptroller General, itself an independent office.  (The Comptroller General, of course, is the head of the U.S. Government Accountability Office, which is, by statute, "independent of the executive departments."  Like Fed Board Governors, the Comptroller General is appointed by the President, with the advice and consent of the Senate, and enjoys an extended tenure.) 

Under the Paul amendment, the relationship between the Fed and the Comptroller General inches closer to another relationship between two independent agencies, the Public Company Accounting Oversight Board and the Securities and Exchange Commission under the Sarbanes-Oxley Act.  (The SEC still maintains much greater control over the PCAOB under SOX than the Comptroller General maintains over the Fed under the Paul amendment.)  That relationship is now before the Supreme Court on Appointments Clause and separation-of-powers grounds.  The Court will hear arguments in that case next Monday, December 7.

SDS

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)

Former Detainees' Habeas Claims Moot

Former Guantanamo detainees cannot maintain their habeas claims against the U.S. government, Judge Richard Leon (D.D.C.) ruled in a set of opinions released today (all duplicates of the linked opinion).  Judge Leon ruled the claims moot.

Former detainees, all apparently in custody in other countries, argued that they were constructively held by the U.S. government and that they suffered collateral consequences of custody at Guantanamo.  Judge Leon ruled that former detainees were not under constructive U.S. custody, that collateral consequences were "based on the discretionary decisions of" someone other than the U.S. government, and that the court couldn't do anything about another country's detention anyway.

The ruling dismisses the former detainees' claims for release and their recently added claim that their transfer was unlawful under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

SDS

Epstein on Easterbrook's Incorporation Case

Richard Epstein (Chicago, Hoover Institution, and NYU) recently posted on SSRN a critique of Judge Easterbrook's decision in NRA v. City of Chicago, the Seventh Circuit case rejecting Second Amendment incorporation.  (The case is now at the Supreme Court, captioned McDonald v. City of Chicago.)  Epstein's essay, NRA v. City of Chicago: Does the Second Amendment Bind Frank Easterbrook?, is a fine deconstruction of Judge Easterbrook's opinion with thoughts about the appropriate role of an appellate court judge in an area where aged Supreme Court precedents, still on the books, are long overdue for reconsideration.

Epstein compares Judge Easterbrook's short, direct opinion with Judge O'Scannlain's much lengthier, more historically grounded analysis in Nordyke v. King, the Ninth Circuit case that ruled the Second Amendment incorporated against the states.  Easterbrook was motivated by judicial restraint and the circuit court's role in (not) making constitutional law; he therefore passed on the substantive incorporation question, leaving that to the Supreme Court.  O'Scannlain, in contrast, engaged the incorporation question, reviewing the history and dodging The Slaughterhouse Cases, U.S. v. Cruikshank, and Presser v. Illinois on his way to ruling the Second Amendment incorporated against the states.  Epstein:

Easterbrook's approach emphasized the imperative need for lower court deference to the Supreme Court's explicit Reconstruction Era holdings that the Second Amendment does not bind the states . . . .  On balance it appears that Easterbrook is against incorporation on a variety of historical and federalism grounds, none of which are likely to prevail when the Supreme Court addresses the issue of incorporation when it hears the case later in the 2009 October Term.

How would Epstein have had Easterbrook rule?  Epstein:

The better approach by far is to take your best shot on the issue, and leave it for the Supreme Court to decide whether you have misspoken.

Ironically, Judge Easterbrook should have followed the Posner strategy in Khanby first announcing that he would deny incorporation, and then offering his complete analysis of the case on the merits.  Half measures don't work.  The Supreme Court would have been ideally positioned to decide this case if Judge Easterbrook had decided to join issue by taking on Judge O'Scannlain's decision in Nordyke.  The lesson of NRA is to beware of a half-hearted commitment to judicial restraint.

SDS