January 10, 2006
More on Alito
Today's hearing is likely to focus on the limits of Presidential power, which of course brings Youngstown Steel to mind. The words of Justice Jackson remain as powerful today as they did in law school days. Some excerpts follow (full opinion is available at the link above).
MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.
That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies - such as wages or stabilization - and lose sight of enduring consequences upon the balanced power structure of our Republic.
A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. ...
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. ...
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. ...
That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. ...
The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. ...
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.
The Watergate Hearings and their aftermath played out when I was in law school 30+ years ago. It was striking to see the seriousness of those hearings when they were replayed in black and white to mark the 30 year anniversary of those events. Striking to see what seemed like innocent days when those in Congress spoke of the Constitution with reverence and seemed able to rise above partisan divides. Will we see the like again?
January 09, 2006
Manassas Zoning: Anti-Immigrant?
LawLibraian Blog reports on the recent action by Manassas, Virginia in endeavoring to turn back the tide of Hispanic immigrants by amendments to its zoning code.
The Manassas ordinance provides that "Family" means "(1) an individual; (2) Two or more persons related to the second degree of colalteral consanguinity by blood, marriage, adoption or guardianship, or otherwise duly authorized custodial relationship, as verified by official public records such as drivers licenses, birth or marriage certificates, court orders or notarized affidavits, living and coorking together as a single housekeeping unit, exclusive of not more than one additional nonrelated person; (3) A number of persons, not exceeding three, living and cooking together as a single housekeeping unit though not related by blood, marriage, adoption or guardianship; or (4) Not more than two unrelated persons and their dependent children living and cooking together as a single housekeeping unit."
This approach clearly seems inconsistent with long-standing law including Moore v. City of East Cleveland, Ohio (1977) and similar cases decided under state constitutions. For more background, check the report by the Washington Post and the Post's critical editorial. Surely the stereotypical views about large families, trash, etc. reported by the Post reflect fear and anti-immigrant sentiment that is unfair, unfounded, and out of line. The ACLU is considering bringing a suit to challenge the ordinance. That's a good idea... but a better one would be for the city to revise its ordinance now and apologize for its unneighborly (and likely illegal) move.
Well, Manassas is taking another look at things. The Washington Post has reported that the problematic ordinance has been suspended. The City Council is reconsidering and may repeal. That would be a good idea.
More on Alito
Many bloggers are tracking the hearings on the nomination of Samuel Alito to the United States Supreme Court. For contributions by the LawProf blog network, check out these representative comments.
That case involved an appeal by a defendant charged with violating federal statutes prohibiting sale of machine guns, pursuant to Congress's Commerce Clause authority. The majority upheld the statutes as adequately grounded in that authority, finding that explicit legislative findings were not necessary, and that sale of machine guns (even in state) substantially affected the flow of commerce and had an impact on violent crime. Alito focused on the application of United States v. Lopez, 514 U.S. 549 (1995) which had struck down the Gun-Free Schools Zone Act. He contended that the machine gun legislation could only rest on a finding that sale of machine guns in state "substantially affects the flow of interstate commerce." The majority had offered two theories in upholding the legislation: Congress had rationally concluded that (a) purely intrastate possession of machine guns had a substantial effect on the interstate machine gun market; and (b) the purely intrastate possession of machine guns increased the incidence of certain crimes. In Alito's view, there were no explicit Congressional findings of substantial impact on interstate commerce and no empirical evidence in support of that proposition. The majority had characterized Alito's view as "requir[ing] either Congress or the Executive to play Show and Tell with the federal courts," a characterization Alito roundly rejected.
Expect to see more questions about federalism in the ongoing confirmation hearings.