Constitutional Law Prof Blog

Robson's Saturday Evening Review

Welcome to the first installment of a weekly feature we're calling "Robson's Saturday Evening Review."  Every Saturday, I'll be posting about a law review or other scholarly article that I think is especially exciting and changed the way I think about an area of Constitutional Law.  The article will probably not be new, but I hope to make it "new" for readers. 

I've chosen to start this series with an article by one of my colleagues, Jenny Rivera.  In her piece, An Equal Protection Standard For National Origin Subclassifications: The Context That Matters, 82 Wash. Law Review  897 (2007), she examines classifications that rely on terms such as "Hispanic" and "Latino" and argues that such terms actually embrace a host of national origin classifications such as Puerto Rican, Dominican, Chilean, and Portuguese.   To my mind, the most revealing portion of the article is Rivera's discussion of seven circuit court cases that have analyzed subclassifications as part of their review of an equal protection challenge to a government-sponsored minority-owned business affirmative action program.  As she states, the "majority of these circuits analyzed subclassifications as part of the narrow-tailoring prong of strict scrutiny. Half of these circuits also assessed subclassifications as part of their determinations that the program was “overinclusive"  and others "considered whether the subclassifications were so specifically underinclusive as to render the programs unconstitutional."

She argues that neither  "overinclusiveness nor underinclusiveness adequately addresses the issues raised by an equal protection challenge to national origin subclassifications," arguing that

National origin groups are not necessarily coextensive with racial groups, and national origin groups have histories of oppression and disempowerment that do not necessarily track those of racial groups.  While exclusion from programs benefiting individuals and denial of access to policymaking positions are common experiences for all minority and disempowered groups--whether categorized by race, national origin, or ethnicity--there are individual and community experiences that do not always overlap among members of these groups. These experiences constitute histories that merge for national origin and ethnic groups, expand and contract for subclasses within these groups, and overlap or diverge from other group categories.

AND she doesn't merely criticize, but offers a solution.  Context matters, she argues, citing Grutter v. Bollinger, 539 U.S. 306, 327 (2003).   She offers a standard to assess "national origin discrimination against Latinos, experienced because they are members of a general 'Latino' category, AND because they are members of particular subclasses that constitute that category. The standard seeks to contextualize culture, ethnicity, language, and historical status, along with race. Moreover, the proposed equal protection subclassification standard would require not only a consideration of how the subclasses' experiences may be varied, but also on how they share commonalities."  Here's what she says:

Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as “Latinos” and as subclass members.

Rivera then discusses some of the circuit court cases and their probable result under her new standard.

This is an excellent article to give to a student who poses what might be named a "subclassifications" query regarding equal protection analysis.  This student asks: "what about differences among Latinos?"  - - - or among Asian-Americans or Arab-Americans or African-Americans (especially recent African immigrants, Caribbean immigrants, and the descendants of slaves).  One might be tempted to remind the student that both race and national origin classifications merit strict scrutiny, and thus imply that the students' concerns do not matter for equal protection purposes.  What Rivera's article demonstrates is that these concerns do matter; when the courts perform the equal protection analysis, these differences are part of "overinclusive" and "underinclusive" determinations.

It is also an article worth reading if you are teaching or working on equal protection issues, even if a student does not raise the problem!  The article is available on ssrn, id=1223443.

Full disclosure here: As I said, Jenny Rivera is one of my colleagues and I am named in the acknowledgements.   Next Saturday evening (yes, I do have a social life!), I pledge I won't review a piece by one of my colleagues.  Indeed, I think I already have an article in mind . . . .

RR

Update on Uighurs: Government Argues Separation of Powers in Motion for Stay

As mentioned in my earlier post (Uighurs Freed, But Now What?), the administration filed a Motion for Stay Pending Appeal and for Expidited Appeal (thanks to SCOTUS Blog for the link), arguing, among other things, that Judge Urbina's order (written version here; oral version below) violated separation of powers principles.  In particular, the government argued that the political branches, not the courts, have authority over immigration matters, and that the court therefore intruded into the political branches' domain when it ordered the government to release the Uighurs into the United States.  See especially pages 13 to 17 of the government's motion for the separation of powers arguments.

The Center for Constitutional Rights collects these and other documents in the case, Kiyemba v. Bush, on its web-site.

SDS

The Teaching Assistant - Reading the Web so You Don't Have To

Hello fellow law professors.  As you know, the Law Professor Blogs Network is dedicated to promoting teaching and scholarship.   After giving it some thought, I realized that it might be helpful to summarize what's out there on the "internets" that might be helpful to someone teaching this subject.  This week's topic is inspired by the news.  As reported by my wondeful co-bloggers, in the vice-presidential debate, Sarah Palin and Joe Biden debated about the proper scope of Executive authority.  Additionally, today Governor Palin was found to have abused her power in the firing of a state trooper.  So it seems that the executive branch should be the focus for the first Teaching Assistant post.

What's out there . . .

Johnathan Adler of The Volokh Consiparcy reports that the D.C. Circuit ruled in the case of Committee on the Judiciary v. Miers.  Summary:  The House Judiciary Committee would like to obtain information from White House Counsel Harriet Miers (yes, that Harriet Miers) concerning the firing of nine U.S. Attorneys (yes, those U.S. Attorneys).  In defending the request, Miers is relying on exective privilege.  The District Court did allow a limited assertion of the privilege, and the Court of Appeals granted a motion for stay pending appeal today.   The District Court's original case (reported at 558 F. Supp. 2d 53 (D.D.C. 2008)) provides a great recap of the doctrine of executive privilege and explains why Ms. Miers is not entited to abolute immunity.  It might be a good way to make this issue relevant to your students.

Since we're talking about investigations, Slate's "Explainer" section answers a question your students may have asked:  What's the difference between a special prosecutor, a special counsel, and a special attorney?  The piece explains the history of special prosecutors in the United States (Teapot Dome!) and also provides a great jumping off point for discussions of prosecutorial independence and the removal power.   Students will appreciate the historical background and the modern-day spin.

Jack Balkin at Balkinization has an interesting piece called "The Five Worst Supreme Court decisions of the Past 50 years."  Prof. Balkin's Number 1 case is Clinton v. Jones.   This could be an interesting starting point for that discussion in your courses.

Steven Griffin, also at Balkinization, has a great post on the Youngstown case.  His take?  That Youngstown should not be limited to the President's "domestic powers," but rather should apply to all exercises of presidental authority.  Well worth the read.   (Note:  Professor Griffin begins the piece by noting an article by Patricia L. Bellia in the new book Presidential Power Stories, edited by Christopher Schroeder and Curtis Bradley. I just recieved my advance copy today and should be reading it soon.  I'll be sure to post back with comments.   From my brief skim of the book this afternoon, I feel that it is going to be a great benefit in the classroom, just as the rest of the Stories series.)

That's all for this week.  Stay tuned next Friday when your humble Teaching Assistant will return with another report.  Happy Weekend! 

NLS

On Palin, the Branchflower ethics report, husbands & state action

The Branchflower investigative report concluding Governor Palin abused her power as governor to settle a personal matter makes interesting reading.  (A pdf link to the 263 page Branchflower report is available at the Alaska Daily News and the New York Times, and many other outlets as well).   

But what strikes me most is the role of Sarah Palin's husband, Todd Palin.  I'll admit I have a personal reaction.  I've known too many heterosexual women (including legal academics and lawyers) who use the phrase "my husband" incessantly, as if appealing to some authority in a conversation with me.  Although, I will say, I haven't ever had any of the women with whom I've worked invite their husbands into meetings or ever had their husbands call me and give me job instructions.

One could start thinking about whether I would be equally appalled if the gender roles were reversed - - - what if one of my male colleagues had their wives or partners in meetings?  And what did I really think of of Hillary Clinton's role in the White House?   And one could start imagining same-sex couple constellations.  Indeed, Todd Palin makes a similar point in his deposition, available as pdf here.

Instead, however, I'm thinking STATE ACTION.

It is easy to imagine a hypothetical, although to make it a little simpler, assume the person who might bring a constitutional challenge against Todd Palin was not a state employee, so that the question of state action rests more squarely on the shoulders of Todd Palin.  In "all fairness" - - -  as the language from Edmonson v. Leesville Concrete provides - - - could we call Todd Palin a "state actor" ?   Does that depend on how one "fairly" interprets the intertwining of a spousal relationship and work relationships?

RR

NSA Surveillance Runs Amok

UPDATE, 10/11, 1:55 pm CT: Marty Lederman at Balkinization and Orin Kerr at the Volokh Conspiracy exchanged posts yesterday on the Fourth Amendment issues in these recent stories.  Marty alluded to the bigger story of the program running afoul of EO 12333 and USSID-18.

ABC News reported yesterday that the NSA eavesdropped on "hundreds of US citizens overseas" as they made very personal calls--having nothing to do with terrorism--to friends and family back home.  President Bush authorized the NSA eavesdropping program shortly after the 9/11 attacks; it allowed the NSA to intercept communications into and out of the United States of persons linked to Al Qaeda or other terrorist organizations.  The program didn't come to public light, however, until December 2005, when the New York Times uncovered it.

Now Senator John D. Rockefeller (D-WVa), chair of the Senate Intelligence Committee, is investigating and considering holding hearings.  The Washington Post story is here. 

These most recent reports give us a chance to revisit the president's authority to order the program in the first place.  For those of us teaching executive authority, this is a nice opportunity to see how the administration's wartime claims play in a context other than detention, trial, and treatment of alleged enemy combatants.  The links below can supplement your assigned casebook reading, they can provide fodder for class exercises (like a moot court or a mock debate), or they can simply serve as a case study of the administration's claims of wartime power in an area that is in the news this week.

The ACLU and the Electronic Privacy Information Center, in a FOIA suit in the D.C. District, have as yet been unable to obtain the OLC memo detailing the legal authority for the program.  (See their most recent filing, citing evidence of the memo, here.)  But we probably have a pretty complete picture of the administration's legal position from related documents here and here.  (Thanks to the EPIC for collecting these documents and making them available.  The full collection is here.)  These arguments are by now quite familiar: The executive has inherent Article II authority "to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States" (drawing on The Prize Cases); and Congress "confirmed" this authority under the AUMF, placing the president at the zenith of his power (drawing on Youngstown and Hamdi).  The program is even in harmony with the FISA, because, claims the administration, FISA itself "contemplates that Congress may authorize such surveillance by a statute other than FISA" (here, the AUMF).

On the other side, plaintiff-appellee's brief in ACLU v. NSA, the 2007 Sixth Circuit case challenging the program, provides a range of arguments against the program.  (The government in that appeal argued lack of standing and state secrets.  The Sixth Circuit ruled that plaintiff-appellees lacked standing.)  The full collection of case materials, including materials from the district court, is available at the ACLU web-site.  (Thanks to the ACLU for making these available.)

SDS

Connecticut Supreme Court - Same-Sex Marriage case ANALYSIS & TEACHING NOTES

The Connecticut Supreme Court's opinion in Kerrigan v. Commissioner of Public Health is an opinion worth teaching and assigning.  Its major drawback is its length at 84 pages - and that's not including the three dissents.  Yet it is clearly written with a model analysis.

The most unique aspect of the opinion is the decision that the intermediate scrutiny standard should be applied under state constitutional law.  The Connecticut Supreme Court reaches this conclusion by first deciding that the statutory scheme makes a classification on the basis sexual orientation (some courts have decided the classification is a gender one; other courts have decided there is actually no classification being made).  Once the court decides it is a sexual orientation classification, the next issue is the level of scrutiny to be applied.  Under the Fourteenth Amendment's equal protection clause the standard is rational basis -  - - or rational basis with "bite" - - - given the precedent of Romer v. Evans,    517 U.S. 620 (1996).   But the Connecticut Supreme Court notes that federal constitutional establishes "a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.’’ (Opinion at 11).   This is especially nicely (and succinctly) expressed in the opinion in a manner easly graspable by students.

In reaching its decision that intermediate scrutiny is applicable, the Court has some interesting analysis.  It looks at its state constitutional provision, section 20, that enumerates eight categories that are protected, including gender, but not including sexual orientation. The Court clearly articulates an evolving interpretation of its state constitution - - - citing John Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415, (1819), as well as state cases.   

The Court looks at sexual orientation under a modified Carolene Products analysis, listing the factors as: 
* the group has suffered a history of invidious discrimination;
* the characteristics  that distinguish the group’s members bear ‘‘no relation to [their] ability to perform or contribute to society.’’
* the characteristic that defines the members of the class as a discrete group is immutable or otherwise not within their control;
* the group is ‘‘a minority or politically powerless.’’

(The Court also does an analysis of six factors under state law which would be less interesting to non-Connecticut readers).

After deciding intermediate scrutiny applies, the Court articulates the VMI intermediate scrutiny standard, which can be rightly called intermediate plus:

‘‘Focusing on the differential treatment or denial of opportunity for which relief is
sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests
entirely on the [s]tate. . . . The [s]tate must show atleast that the [challenged] classification serves important governmental objectives and that the discrimina-
tory means employed are substantially related to the achievement of those objectives. . . . The justification must be genuine, not hypothesized or invented post hoc in response to [the] litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of [the groups being classified].’’ (Citations omitted; internal quotation marks
omitted.)

United States v. Virginia (VMI),  518 U.S. 515, 532–33 (1996).

The Court rather quickly finds the government interests do not meet the VMI heightened scrutiny standard.  The unique aspect of this analysis occurs because Connecticut allows same-sex civil unions, so the means chosen - - - prohibiting marriage but not civil unions - - -  is different from most other cases.

I'd suggest teaching Kerrigan v. Commissioner of Public Health - - - in edited form - - - in any unit on state constitutions.  I combine a "unit" on sexuality and state constitutions, with separate but intersecting learning goals for each aspect.   

There is also a CALI lesson on same-sex relationships (that I authored) that provides student self-directed learning on the constitutional, state constitutional, and various arguments aspects of the cases, as well as the federal and state DOMA interface.  It also has a 50 state map with laws in each state.  However: it is not presently up-to-date.  I've been waiting to see what happens with Proposition 8 in California on November 4. 

RR

Connecticut Supreme Court - Same-Sex Marriage case

The Connecticut Supreme Court has just released its opinion in the state same-sex marriage case, Kerrigan v. Commissioner of Public Health, SC 17716 (October 10, 2008), with three dissenting opinions.  The opinion for the Court is by Justice Richard Palmer:

The Court held the state's opposite-sex marriage requirement UNCONSTITUTIONAL under its state constitutional equal protection clause applying intermediate scrutiny.

A pdf of the 85 page opinion is available here.   Three dissenting opinions available at the Connecticut Supreme Court website.

RR

Justiciability and Summers v. Earth Island Institute

The Court heard oral arguments yesterday in Summers v. Earth Island Institute, a case dealing with standing, ripeness, and mootness in a facial challenge to agency procedural rules.  The plaintiffs originally brought two types of claims: Plaintiffs challenged the Forest Service's Burnt Ridge Project, a proposed timber sale in the Sequoia National Forest; and they challenged the validity of Forest Service regulations that exempt certain Forest Service actions, including the Burnt Ridge Project, from administrative notice, comment, and appeal procedures.

The parties settled the first set of claims, dealing with the Burnt Ridge Project.  But the government then argued that plaintiffs' facial challenge of the Forest Service regulations was nonjusticiable: the plaintiffs lacked standing, claimed the government, because they merely alleged an inability to participate in governmental decisionmaking (and not a sufficient cognizable injury); and the claim was not ripe, because plaintiffs didn't wait for the Forest Service to apply the regulations in a concrete setting--that the case was a preenforcement challenge.  Plaintiffs argued that they had standing and that their claim was ripe when filed (because of the their harm from the Burnt Ridge Project), and that it is ripe now (because the Forest Service continued to apply the regulations to other projects).

The argument transcript is here; check out pages 26 to 52 (the plaintiff-respondents' argument) for nice exchanges on standing.  Several law professors filed an amicus, which puts the justiciability issues into particularly good focus.

SDS 

Conference: Fourteenth Amendment

The Center for Constitutional Law at the University of Akron School of Law is hosting a Symposium to commemorate the 140th Anniversary of the Fourteenth Amendment on October 23 & 24.

More information about the conference, including a list of speakers is here.

RR

Health, Health Care & Con Law Teaching

Health Care as a possible “right” was one of the subjects broached in Tuesday evening’s Presidential debate.

Here’s part of that “quick discussion:”

Brokaw: Quick discussion. Is health care in America a privilege, a right, or a responsibility?   Sen. McCain?

McCain: I think it's a responsibility, in this respect, in that we should have available and affordable health care to every American citizen, to every family member. And with the plan that -- that I have, that will do that.

But government mandates I -- I'm always a little nervous about. But it is certainly my responsibility. It is certainly small-business people and others, and they understand that responsibility. American citizens understand that. Employers understand that.

But they certainly are a little nervous when Sen. Obama says, if you don't get the health care policy that I think you should have, then you're going to get fined. And, by the way, Sen. Obama has never mentioned how much that fine might be. Perhaps we might find that out tonight.

Obama: Well, why don't -- why don't -- let's talk about this, Tom, because there was just a lot of stuff out there.

Brokaw: Privilege, right or responsibility. Let's start with that.

Obama: Well, I think it should be a right for every American. In a country as wealthy as ours, for us to have people who are going bankrupt because they can't pay their medical bills -- for my mother to die of cancer at the age of 53 and have to spend the last months of her life in the hospital room arguing with insurance companies because they're saying that this may be a pre-existing condition and they don't have to pay her treatment, there's something fundamentally wrong about that.

(excerpted from the CNN transcript, available here).

This was especially interesting to me because of an upcoming event in my constitutional law class scheduled for November 7.  As part of a larger project, I have inaugurated a series of interdisciplinary “conversations” featuring one of our university’s distinguished professors and one of our law school professors.   It is structured as a “public conversation” with the Con Law students and others in attendance.  Last year, our subject was economic justice and the discussants were Frances Fox Piven and Steven Loffredo.  This year, our subject is health and the discussants are Nicholas Freudenberg and Janet Calvo.

I see this question of “health” relating to the constitutional law rights course I am teaching in three ways:

First, there is the question of health care as a “right” that was broached in the Presidential debate.  This is a good opportunity to discuss the intersections of the equal protection and due process clauses.  It is also a good opportunity to surface comparative perspectives with constitutions that do provide for so-called “socio-economic rights” as well as international law documents.

Second, there is the question of government health interests as warranting curtailment of individual rights in either an equal protection or due process context.   The public health perspectives and the individual rights perspectives are often in stark conflict in situations in which “quarantine” is seen as an option, including AIDS in the 1980s, and more recently TB and SARS, as well as threats of future diseases.

Third, there is the question of corporations as “persons” under the Fourteenth Amendment claiming equal protection and due process rights, as well as First Amendment rights.  For health campaigns that include government action as a goal, corporations can challenge the government action.  Again, this illustrates a conflict between public health and constitutional rights perspectives, but also surfaces a fissure between individual rights and corporate rights perspectives within the legal community.  The “tobacco case” presently before the United States Supreme Court, Philip Morris, USA v. Williams, illustrates this issue, albeit obliquely.

In terms of pedagogy, I am just beginning to raise these issues in class.  Before the November 7 event, students will have the “opportunity” (I do make it required), to post specific questions that they would like the discussants to address.  As moderator, I review and categorize these questions and use them to direct the conversation, as well as making sure I mention specific cases we have studied or will study.  I also make it clear that the conversation will be integrated into the final exam.

In addition to the ConLaw class, I use this opportunity to make links with other classes and faculty members.  So, Distinguished Public Health Professor Nicholas Freudenberg will also participate in a round table discussion with community activists arranged by my colleague Jenny Rivera, Director of the law school’s Center for Latino and Latina Rights and Equality (CLORE), a teaching experience in our law school’s Health Law externship clinic facilitated by my colleague Paula Berg, and a lunch with all faculty members to talk about further collaboration between the law school and the university’s new School of Public Health.

If you are interested in attending any of these events and will be in the NYC area on November 7, please contact me: [email protected]   I know it will be a day of lively discussion - - - especially given the election a few days before.

RR

Separation of Powers in Winter v. NRDC

Can an executive agency nullify a federal court preliminary injunction designed to protect marine life? 

This question--along with the issue of whether the plaintiffs satisfied the standard for a preliminary injunction--was on display yesterday at the Court in oral arguments in Winter v. NRDC.  The case started with a federal district court preliminary injunction limiting the Navy's use of sonar in its exercises off southern California in order to protect marine life.  The Council on Environmental Quality (CEQ)--"more or less an office in the White House," according to Chief Justice Roberts--ruled the injunction an "emergency" pursuant to its regulatory authority and waived it.  The Ninth Circuit remanded in light of this development; the district court stood its ground; and the Ninth Circuit ultimately affirmed the preliminary injunction.  Thus the separation-of-powers question: Can the CEQ nullify a preliminary injunction issued by a federal court?

(In addition to the separation-of-powers issue, counsel for the NRDC may have opened up a standing question in arguing irreparable harm (on the preliminary injunction).  Justice Scalia noted that harm for the preliminary injunction is the same as harm for standing, and the NRDC might not have it.  That's because the NRDC sued in part on the ground that the Navy failed to comply with the National Environmental Policy Act (NEPA) by not issuing an Environmental Impact Statement (EIS)--a procedural harm, which, as Justice Scalia noted, "is not the kind of harm that gives rise to Article III standing.")

Professors Small, Varat, and Winkler of UCLA Law School filed an outstanding amicus brief on the separation-of-powers question; it's well worth a read.  The oral argument transcript is here; check out pages 12 to 24 and 44 to 46 on separation-of-powers; and check out pages 50 to 55 on standing.

SDS

Uighurs Freed, But Now What?

UPDATE, 10/8, 11:40 CT: SCOTUS Blog reports that the D.C. Circuit stayed Judge Urbina's ruling so it could consider the administration's motion for stay pending appeal.  The order says nothing on the merits.

Judge Urbina of the U.S. District Court for the District of Columbia ruled yesterday that the government must release 17 Chinese Muslims, or Uighurs, from Guantantamo Bay and release them into the United States.  NPR reports here; the NYT reports here; the hearing transcript is here (by way of SCOTUS Blog; thank you), with the judge's oral ruling beginning on page 28 of the transcript.  The government has already appealed to stay the ruling, arguing that the court lacks authority to order the release of the Uighurs into the United States.

This dispute goes back to the Supreme Court's ruling in Boumediene v. Bush that Guantanamo detainees enjoy the privilege of habeas corpus, that the Detainee Treatment Act failed to provide an adequate and an effective substitute for the writ, and that therefore the Military Commissions Act (denying federal courts habeas jurisdiction over Guantanamo detainees) unconstitutionally suspended the writ.   

After Boumediene came down, the D.C. Circuit in Parhat v. Gates overturned a decision of the Combat Status Review Tribunal designating Parhat, a Uighur, an enemy combatant.  (The D.C. Circuit had jurisdiction in the case pursuant to the Detainee Treatment Act, designating the court as the review tribunal for CSRTs.  Parhat was not a habeas case.)  After Parhat, the government gave up on its claim that Uighurs at Guantanamo were enemy combatants (although it maintains that they are dangerous).  The government won't return them to China (where they would be tortured or killed), but no other country has agreed to take them.  Thus the problem: Where to send them?

Judge Urbina, expressing great frustration with the government's continued delay tactics in the case, balanced the Uighur's liberty interests against "separation-of-powers concerns":

Because the Constitution prohibits indefinite detention without cause, the Government--the Government's continued detention of Petitioners is unlawful.  Furthermore, because of separation-of-powers concerns do not trump the very principle upon which this nation was founded, the unaliable right to liberty, the Court orders the Government to release the Petitioners into the United States.

But why the U.S.?  Because if his authority to release into the U.S. is in doubt, the judge has even less authority to order release into another country, according to an exchange between the bench and government's counsel.

The case is an interesting and troubling case-study in individuals getting caught up in the constitutional interplay between the administration, Congress, and the Court, going back (at least) to the president's order establishing commissions for Guantanamo detainees and continuing through yesterday's ruling.  We'll update this as events unfold.

SDS

So What Does the VP Do, Anyway?

Senator Biden and Governor Palin famously addressed the constitutional roles of the vice president in last week's debate; the transcript is below (link to the video at c-span.org); analysis by Josh Chafetz at the New Republic here.  The exchange gives us an opportunity to explore the role (or roles) of the vice-president under our constitution and to examine Vice-President Cheney's claims of executive privilege (seemingly placing the office within the executive branch) and his claim that the vice-president does not have to comply with an executive order in a dispute with the National Archives (because the office is within the legislative branch).  The former claim was at issue in Cheney v. U.S. District Court for the District of Columbia; see especially Part IV of the opinion, starting on page 12.  The latter claim is described in this Washington Post article.

Based on these material, how might your students advise Governor Palin and Senator Biden to better answer the question?  Here's what they actually said:

IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?

PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.

IFILL: Vice President Cheney's interpretation of the vice presidency?

BIDEN: Vice President Cheney has been the most dangerous vice president we've had probably in American history. The idea he doesn't realize that Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there's a tie vote. The Constitution is explicit.

The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he's part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.

SDS

Judicial Nominations

According to yesterday's New York Times, the McCain and Obama campaigns have turned to the issue of judicial appointments.  And with President Bush delivering a speech yesterday on his judicial philosophy, the time seemed right to say something about the issue of judicial appointments in the presidential campaign. 

A quick and simple comparison chart of the candidates' positions is here; more on McCain's views here and here.

These materials give us an opportunity to hold political rhetoric in the campaign against constitutional theory in our classes and explore with our students how they compare.  For example, I plan to assign these materials to my Con Law I class (structure), and ask my students to answer these questions:

1.  Do the candidates' positions represent commitments to a clear, consistent approach to constitutional interpretation (and if so, which one(s)), or merely to judicial nominees who will advance their political agendas?  Or are these one in the same? 

2.  Do certain methods of constitutional interpretation align consistently with the political right?  Do others align consistently with the political left?  Can you point to an issue or a case where a commitment to a particular method of constitutional interpretation seems to have resulted in strange political bedfellows?  Can you point to an issue or a case where a politician or judge seems to have, um, "loosened" their commitment to a particular method of constitutional interpretation in order to maintain fidelity to their political commitments?  Based on our studies, what issue(s) give rise to a tension between your own favorite method of constitutional interpretation and your own preferred policies?  How do you resolve this tension?

3.  Can you point to opinions that we've studied that reflect the candidates' positions on judicial nominations?  Can you point to opinions that reflect Senator McCain's views on separation of powers and federalism (since he specifically discusses those issues in his statement of "strict constructionist philosophy," linked above)?  How about opinions that reflect Senator Obama's empathy and heart (since he specifically identifies these traits as desirable for justices who are not merely umpires in a game, but who rule on issues of life and death)?

Let us know how you're using this issue in your classes.

SDS

Book Review: The Role of SCOTUS

An insightful book review by Bradley J. Best (Dept. Political Science, Buena Vista University)
of An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court by Patrick Garry (Penn State Press 2008).

Bradley Best writes:

In AN ENTRENCHED LEGACY, Patrick Garry delivers a forceful indictment of the most basic trajectories of US Supreme Court decision making in the modern period. Put simply, Garry casts the post-1936 Court’s embrace of an expansive federal regulatory power and individual rights jurisprudence as nothing less than a betrayal of sacred constitutional principles. The scale of interventionist, national government power in post-New Deal America, he argues, evinces a sustained repudiation of federalism and separation of powers principles. Furthermore, expanding zones of constitutionally protected individual liberty are, in Garry’s view, the result of the Court’s disregard of the limits of the judicial function and rejection of the Ninth and Tenth Amendments as constraints on the powers of the national government.

The full review is available at 18 LAW AND POLITICS BOOK REVIEW 867-870 here.

RR

Altria Group v. Good and Preemption

The U.S. Supreme Court heard oral arguments today in Altria Group v. Good, in which the petitioners Phillip Morris USA and its parent company Altria appealed a First Circuit ruling that federal law and practice did not preempt a state deceptive trade practices claim.

The plaintiffs, smokers of "light" cigarettes, brought their case against petitioners under Maine's Unfair Trade Practices Act, claiming that Phillip Morris had falsely represented some of its brands as "light."  The petitioners claimed that the Federal Cigarette Labeling and Advertising Act (FCLAA) expressly preempted plaintiffs' state law claim and that Federal Trade Commission (FTC) oversight and practice implicitly preempted the plaintiffs' claim.  (Petitioners all but gave up on their implicit preemption defense after the federal government intervened and argued that the FTC did not view the lawsuit as undermining its policies.)

The FCLAA preemption provision states that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." (Emphasis added.)  In the language of the First Circuit, the express preemption issue thus turned on whether plaintiffs "indeed alleged fraudulent misrepresentation claims" not "based on smoking and health" (which are therefore not preempted), or whether they "in reality alleged failure-to-warn or warning neutralization claims" (i.e., claims "based on smoking and health," which are therefore preempted).  The First Circuit ruled in favor of plaintiffs.

The case offers plenty of fodder for a class or exercises on federal preemption.  Start with a quick review of the facts:  Lyle Denniston previewed the case on the SCOTUS Blog here; Adam Liptak's story in the New York Times is here.  The oral argument covered mostly predictable ground; the Q&A with the plaintiff-respondents' (at pages 23 to 41) may be most useful to zero in on the issues around express preemption.  After reviewing this material, you might ask your students to draft a complaint on behalf of plaintiffs to avoid express preemption and to dodge some of the issues at oral argument.  (I haven't been able to track down the complaint.  I'll post it when I do.)  With the benefit of the argument transcript, can they do better than the attorneys in the case?  You might ask them then to switch sides and answer questions directed at the petitioners (at pages 3 to 23 of the transcript).  How do they match up against Theodore Olson's actual answers?

Finally, you may wish to assign the outstanding amicus brief filed on behalf of constitutional and administrative law scholars.  As you might expect, it provides an excellent forest (not trees) view of the case and an outstanding review of preemption principles.

SDS

Happy First Monday!

Today is First Monday.  Hip Hip Hooray!   

The Court kicked off the term with Altria v. Good.  This case considers whether the pre-emption doctrine will bar lawsuits by plaintiffs attempting to recover damages - under state law - from the tobacco industry for the detrimental use of "light" cigarettes.   More here.

What cases will you be watching this term?   How will you use them in your classes?

The Constitution in the News

As readers well know, Congress recently passed what is colloquially known as the “Bailout Bill,” but officially known as the “Emergency Economic Stabilization Act of 2008.”   While most of the discussion of EESA focused on the political wisdom of using public funds to ameliorate private debt, very little focused on the Constitutional issues raised by the bill.

The draft legislation proposed by Treasury Secretary Paulson on September 21 declared, “Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.”  Of course, Congress has authority under the Exceptions and Regulations clause to strip the Supreme Court of its appellate jurisdiction.  Moreover, as Dean Rod Smolla of Washington and Lee University School of Law reasoned in a piece for Slate.com, under the Constitution, Congress could likely pass a law that stripped all federal courts of any review.  However, he also noted that such an action is “relatively rare” and that such a law would be “in powerful tension with our system of checks and balances and that its constitutionality would be subject to grave doubt.”

Congress apparently agreed.  As enacted, EESA has an entire section on judicial review.  The law states: “Actions by the Secretary pursuant to the authority of this Act shall be subject to chapter 7 of title 5, United States Code, including that such final actions shall be held unlawful and set aside if found to be arbitrary, capricious, an abuse of discretion, or not in accordance with law.”  So, this pretty much solves the judicial review dilemma, right?   Not quite, according to Professor David Zaring, a Professor of Law and Business Ethics at the Wharton School.  He notes that there is a contradiction in the bill because it purportedly denies equitable relief, but “arbitrary and capricious review is equitable relief” under the APA.  The professor further notes that the bill would seem to favor declaratory, as opposed to injunctive relief in any suits under the Act.  (A more detailed description of this post can be found in this Network's Administrative Law Blog.)

I would add one additional point.  Even if the Bill might provide for judicial review, the question is judicial review by whom?  Standing would still be an issue.  Under what circumstances will plaintiffs be allowed to bring suit under the act? Cases like Flast teach us that taxpayers qua taxpayers could not sue under these circumstances.  But what about the bank that originally owned the mortgage?  What about the private mortgagor that lives (or lived) in the mortgaged property?  My thought is that while an actual or prospective economic injury might be shown in any number of scenarios, the courts will analyze the causation prong of the standing test in a very stringent manner – as in Allen v. Wright – to avoid the merits.   I suppose the courts would say, “Yes, you suffered X harm, but this would have happened even without this legislation, so there is no causation.”  In short, I’m guessing a very small class of claims under the Act will be litigated on the merits.

Final thought – how are you using the bailout in your classroom discussions?  What do your students have to say?

NLS

Hello!

My name is Nareissa Smith.  First, let me say that it’s wonderful to be here.  Ruthann and Steve are wonderful co-editors and I’ve enjoyed working with them to launch this blog.  I hope you’ll enjoy our posts.

I am an Assistant Professor at Florida Coastal School of Law.  I teach Constitutional Law I and II (structure and rights).  I also teach Criminal Procedure (in my mind, a specialized sub-set of Con Law) and Criminal Law.  I truly enjoy teaching Constitutional Law.  The Commerce Clause is one of my favorite topics, but I love Con Law so much that it's hard to pick just one favorite area.

I will also have some regular features on teaching and in other areas.  Stay tuned!

Unconscious Racism

Charles Lawrence's theory of unconscious racism is included in several Casebooks in discussions of the Washington v. Davis, 426 US 229 (1976), requirement of intent to pove a racial classification meriting strict scrutiny. 

This op-ed does not mention Lawrence (or Washington v. Davis) specifically, but is a discussion of "unconscious racism" in the context of the present Presidential campaign with some cites to studies.

 

The op ed is in the NYTimes here.

Might be worth posting on a class website.

RR