Constitutional Law Prof Blog

Lousin and Mirza Rethinking Reapportionment

Professor Ann Lousin (John Marshall) and Professor Leona Mirza (North Park U., Dept. of Mathematics) argued in last week's National Law Journal that the best way to avoid an electoral college winner beating a popular vote winner (as in the 2000 presidential election) is to increase the number of U.S. representatives.

Lousin and Mirza argue that the Huntington-Hill method of determining the number of each state's representatives works just fine to achieve proportional representation in the House.  But when the Electoral College adds Senate representation to determine the number of presidential electors, the results favor small states.

Lousin and Mirza suggest adding representatives to the House by using the smallest state's population as the measure for one representative.  States with multiples of the smallest state's population would receive a proportional multiple of representatives.  Lousin and Mirza:

We suggest that the best, easiest and cleanest way to challenge the composition of the Electoral College would be to replace the Huntington-Hill method of determining the total number of U.S. representatives every decade with a process using the smallest-populated state as its key.  The state with the smallest population, currently Wyoming, would be awarded one U.S. representative (and two senators, of course).  A state that had twice Wyoming's population would be awarded two U.S. representatives; a state with three "Wyomings" would have three representatives, and so forth.

The result would be a House with over 600 members.  "Wyoming would still have only one, but California would have 68 instead of 53.  In all probability, more than 40 states would increase their number of U.S. representatives."  Unwieldy?  No, they argue: Most of the House's work is done in committees, and it rarely meets in full session.

Lousin and Mirza's solution is an alternative to the National Popular Vote movement.  National Popular Vote bills are state legislation that would bind a state to allocating its Electoral College votes in proportion to the state's popular vote (and not by winner-take-all rules).  Five states have enacted National Popular Vote bills, and a couple dozen others are considering them.  The laws won't take effect until states comprising a majority of the Electoral College sign on.

SDS

Aspiring Court Cartoon Captioners - Deadline Imminent

The New Yorker has a regular feature that provides a cartoon drawing requiring a caption; the March 1, 2010 contest (#229) with its drawing by Paul Noth might inspire some contributions from ConLaw buffs.  Enter at New Yorker website here.   The deadline is 11.59 pm Sunday, February 28, 2010; 250 character limit.

RR

Maryland Atty General Opinion on Recognition of Out-of-State Same-sex Marriages

In a word: yes.

In a few words: a qualified yes.

In the concluding words of the 53 page opinion of the Maryland Attorney General, 95 Md. Op. Att'y 3 (2010)(download here):

While the matter is not free from all doubt, in our view, the [Maryland Supreme] Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction. In light of Maryland’s developing public policy concerning intimate same-sex relationships, the Court would not readily invoke the public policy exception to the usual rule of recognition.  You have posed the question in the abstract, but, of course, context matters.  For example, to the extent that a particular matter is governed by federal law, the federal Defense of Marriage Act, which limits marriage for
federal purposes to opposite-sex couples, would prevent recognition
of the marriage for that particular purpose. Finally, with respect to your question concerning the Governor’s authority to issue an executive order, the Governor cannot legislate through an executive order. 

RR

Larry Tribe, Legal Services for the Poor, and Sharon Browne

ConLaw Prof Larry Tribe (pictured left) of Harvard Law School  "will join the Justice Department next week as a senior and counselor focusing on expanding poor people's access to legal services" according to the Washington Post and announced by Harvard Law School. 

The WaPo article notes, "The announcement comes a week after senior leaders at the department appeared at a Washington conference to draw attention to the large caseloads handled by public defenders and other challenges in providing legal services to low-income defendants."

Thus, it seems Tribe's efforts will be directed at the criminal justice system.

Meanwhile, on the civil side, Sharon Browne has been nominated to be the Director of the Legal Services Corporation - - - a choice objectionable to many civil rights and progressive legal organizations who support civil legal services for the poor.  According to the Alliance for Justice,  Senate Minority Leader Mitch McConnell (R-KY) proposed that Sharon Browne, a senior attorney at the Pacific Legal Foundation ("PLF"), be nominated to fill a vacancy on the Legal Services Corporation ("LSC") Board of Directors, and Obama  sent that nomination to the Senate for confirmation or rejection.   In addition to her work at PLF, the Alliance for Justice objects to Browne because in 1992, "Browne was one in a group of plaintiffs who filed a lawsuit, Brosterhous v. State Bar of California,challenging the State Bar's use of attorneys' dues money to advocate for providing adequate legal services for the poor in the legislature."

RR

Gormley on Starr and Clinton

ConLawProf (and Interim Dean) Ken Gormley (pictured right) of Duquesne University Law School has just published THE DEATH OF AMERICAN VIRTUE: Clinton vs. Starr.

The review in the NYT notes that "unlike some other commentators, Gormley allows for the possibility that even the most rabid-seeming players might have acted out of honorable considerations."  Based on an interview with the federal district judge hearing the original sexual harassment lawsuit, Gormley also reveals that she contemplated finding Clinton in criminal contempt, which would have ended Clinton's political career in a "nanosecond."  Yet the tenor of the 800 page book, at least according to the NYT review, is that the Clinton impeachment was all so unnecessary (quoting Starr) and diversionary.

The political relevance of Gormley's book is obvious.  But it also seems an essential sequel to Clinton v. Jones, in which the Court unanimously rejected Clinton's constitutional arguments to stay the trial until after his presidency had ended.

RR

Betting on Bush v. Gore?

From a new article in the ABA Journal, we learn one of our Supreme Court Justices had a "financial stake" in Bush v. Gore  - - a stake the Justice quickly acted to obliterate:

Dear Obie and Betty Nan:

It now appears remotely possible that the Florida election case might come to our court. I therefore feel obliged to cancel all my election bets in any way dependent on the Florida vote. I hope you will agree to let me do this.

Sincerely,

As one of the recipients of the faxed letter explains:

"In the beginning, it was simple. We each bet $1 on one or two close races, shook hands and paid off the next time we had dinner together. But in a few years, without deliberate planning, the scope of our betting expanded. The money involved remained insignificant. The wagering terms, however, became complicated. On some Election Days we each wagered a dollar on two dozen or more individual races. To add complexity and variety to our game, we changed the terms regularly. Sometimes we simply chose a winner. More often we wagered on spread, voter percentage or by what percentage each party would win in a legislature."

More revelations by Bill Rehnquist's friend, Herman Obermayer ("Obie"), about the former Chief Justice make for an interesting read.

RR

The Senate's Catch XXII and the Constitutional Option

The Senate can do away with its cloture requirement by a mere majority vote, writes Yale Law Journal articles editor Aaron Zelinsky today on the Huffington Post.  Zelinsky argues that Senate Majority Leader Harry Reid has unnecessarily assumed that this Senate rules change would require 67 votes (which he doesn't have) and thereby weakened his hand in negotiating with the minority.

The cloture rule, requiring 60 votes to end debate, and the rules-change rule are both in Senate Rule XXII:

at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer . . . shall . . . submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?"  And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative votes shall be two-thirds of the Senators present and voting--then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

In short, 67 votes are required to close debate on a measure to amend the Senate rules (including the cloture rule itself).  (The late Senator Kennedy aptly called this double-bind to the cloture rule a "Catch XXII.")

But Zelinsky points out that nothing in the Constitution requires this super-majority to change the Senate rules.  He argues that the Constitution specifies when the Senate must vote by more than a simple majority (as in trying impeachments, e.g.), that the Senate rules themselves are not subject by the Constitution to any super-majority, and that therefore changes to the Senate rules must default to the simple majority rule.  See U.S. v. Ballin ("the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body.  This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations . . . No such limitation is found in the Federal Constitution, and therefore the general law of such bodies obtains.").  Zelinsky concludes that Senator Tom Harkin's bill, Senate Resolution 416, to incrementally decrease the number of votes requires for cloture on a measure could pass now by a simple majority.

Others, including Senator Tom Udall, the Congressional Research Service, and Riddick's Senate Procedure, take a different position--that cloture on a fillibuster of a rules change requires 67 votes under Rule XXII, notwithstanding the constitutional default of a simple majority.  In other words, while the Constitution demands only a simple majority to establish rules, the Constitution also doesn't prohibit the rules themselves setting a more rigorous standard.  This is precisely what Rule XXII does, and it binds the Senate.

But these same sources also suggest that a simple majority can change the cloture rule at the beginning of a new Congress--the so-called "constitutional option."  Here's how it works.  Article I, Section 5 of the Constitution allows each House to determine its own rules (by a simple majority).  (Senate Rule V, which says that the Senate rules--including Rule XXII--"shall continue from one Congress to the next Congress unless they are changed as provided in these rules" (and thus taking us back to where we started) itself violates Article I, Section 5 in that it binds the new Senate to old rules and prevents the new Senate from determining its own rules.)  Thus at the beginning of each Congress--before the Senate has had a chance to (re)enact its rules--generally parliamentary law, including the simple majority rule, applies.  Under general parliamentary law, the new Senate can enact its own new rules by a simple majority.

This is exactly what Senator Udall is attempting in his Senate Resolution 396, now before the Senate Committee on Rules and Administration.

(Opponents of this tactic argue that only one-third of the Senate turns over at a time, and a quorum is always in existence.  Therefore the Senate doesn't need to reconstitute itself with each new Congress, and its rules, including Rule XXII, simply carry over.)

Martin Gold and Dimple Gupta spin out the constitutional option along with other possibilities in their Harvard Journal of Law & Public Policy piece, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Fillibuster.

SDS

States and Guns

The New York Times reports today that fear of tighter gun regulations by the Obama administration has driven several states to loosen firearm regulations.  (We posted earlier this week on the Washington State Supreme Court's ruling incorporating the Second Amendment against Washington State.)

The states' actions may be motivated in part by concern for protecting Second Amendment rights, but they appear to be legislative efforts (not mandates by the courts).

At the same time, several states are considering some version of the Firearms Freedom Act--state legislation that declares that any firearms made and retained in-state are beyond the authority of Congress under the Commerce Clause, in effect nullifying such legislation.  Montana and Tennessee have already passed a version of this, and a dozen or so other states are considering it.

The FFA may be a bold political statement, but like so many other, similar nullification efforts that we've seen recently (and historically), it will have no constitutional effect.  That aside, the FFA appears to ignore the well established rule that Congress can regulate under the Commerce Clause activities that have a substantial effect on interstate commerce.  Firearms manufactured and retained within a single state certainly could have a substantial effect on interstate commerce, and Congress could ensure this through its fact-finding and by adding a "jurisdictional hook" to any federal legislation (as it did in the wake of Lopez to the Gun Free School Zone Act,18 U.S.C. Sec. 922(q)).

The FFA makes another constitutional mistake.  According to the FFA web-site, "[t]he FFA is primarily a Tenth Amendment challenge to the powers of Congress under the "commerce clause," with firearms as the object--it is a state's rights exercise."  Whatever the FFA is, it most certainly is not a "Tenth Amendment challenge."  Nothing in the text or history of the Tenth Amendment (or the Supreme Court's post-1995 Commerce Clause and Tenth Amendment cases) suggests that the Tenth Amendment limits the powers of Congress or gives rights to states.  It simply reserves powers to the states that aren't given to the federal government.  The core question--and the real thrust of the FFA--is whether Congress has power to regulate this items under the Commerce Clause.  This may (or may not) be an interesting issue, but it has little to do with the Tenth Amendment.

SDS

Oral Argument in Holder v. Humanitarian Law Project

The Supreme Court today heard oral arguments in Holder v. Humanitarian Law Project, the case testing the constitutionality of a portion of the Anti-Terrorism and Effective Death Penalty Act.  (We previously posted on the case here.)  The relevant section, 18 U.S.C. Sec. 2339B(a)(1), outlaws the “knowing” provision of “material support or resources” to a “foreign terrorist organization,” as determined by the Secretary of State.  The section defines “material support or resources” as follows:

 

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

 

18 U.S.C. Sec. 2339B(a)(1) (emphasis added).

 

The plaintiffs—a retired judge, a medical doctor, a human rights organization, and several nonprofit groups—brought the case as a preenforcement challenge to the statute and sought a declaration that the statute violated the First Amendment.  Plaintiffs sought to continue to teach and advocate the use of international law and other nonviolent means to reduce conflict, advance human rights, and promote peace on behalf of the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), two organizations designated as “foreign terrorist organization[s]” by the Secretary of State.  Plaintiffs feared that their advocacy would violate the statute, resulting in a sentence up to 15 years in prison.  As the plaintiffs argued, and the government confirmed during oral argument today, the statute would make it a crime for plaintiffs to teach the PKK or LTTE human rights advocacy (or even English), to submit an amicus brief in federal court on behalf of the PKK or LTTE, to petition Congress or the United Nations for legal reform, or even to speak to the media on their behalf.

 

The Ninth Circuit ruled the statute void for vagueness.  Oral argument today did nothing to clarify it.

 

The Court struggled with whether the plaintiffs’ actions—teaching and advocacy—were speech (thus subjecting the statute to strict scrutiny, as a content-based restriction), or conduct (and thus subject to the much less rigorous test in O’Brien).  In getting there, the Court posed a variety of hypotheticals that took the parties far afield from the plaintiffs’ case—an “as applied” challenge to the statute.  The speech-conduct debate, conducted through the hypotheticals, only served to illustrate how vague the statute is, and in the end neither party (nor, apparently, any justice) could articulate just where the line is between speech and conduct under the statute.

 

Professor David Cole (Georgetown), for the plaintiffs, argued that the statute needed a specific intent element—that it could be saved if it required the government to show that a defendant specifically intended that its actions would further unlawful or terrorist ends of the group.  But this didn’t square with the government’s theory—that any support for a terrorist group is illegal, because even support for the lawful activities of the group might free up resources to be used for the unlawful activities of that group. 

There are two problems (at least) with this theory.  First, it doesn’t lend itself to easily identifiable boundaries, especially when the support is speech—“expert advice or assistance.”  There’s both an overbreadth problem and, as the lower court ruled, a vagueness problem when even the government can’t articulate the full sweep of the statute.  (Or when it does—as in saying that the statute prohibits an individual from filing an amicus brief on behalf of the PKK or the LTTE—its position runs so squarely up against the First Amendment and other constitutional values.)  Second, this argument sounds like an attempt at meeting strict scrutiny (for the content-based restriction on speech).  But, as Chief Justice Roberts pointed out, the government nowhere argued this before.

 

The net result—and where at least a couple on the Court seemed to end—is a good possibility of a remand.  If the Court determines that the plaintiffs’ activity is conduct, not speech, the Court may remand for application of the O’Brien test.  If the Court determines that the plaintiffs’ activity is speech, not conduct, the Court may remand for application of strict scrutiny.

 

Or, if the indeterminacy in the arguments today is any reflection of the vagueness of the statute, the Court may well uphold the lower court ruling and void the statute, as applied, for vagueness.

 

SDS

Washington Supreme Court Incorporates Second Amendment

The Washington Supreme Court ruled late last week in State of Washington v. Sieyes that the Second Amendment applies against the State of Washington by way of the Fourteenth Amendment Due Process Clause.  The decision came down less than two weeks before the U.S. Supreme Court is scheduled to hear arguments on the incorporation issue in McDonald v. City of Chicago.

The Washington case involved a 17-year-old young man charged with unlawful possession of a firearm--a loaded Bursa .380 semiautomatic under his car seat.  The trial court found the defendant guilty and sentenced him to 10 days' juvenile detention, 1 year of supervision, 30 hours of community service, and a $100 fine.  Sieyes appealed, arguing, among other things, that the Washington State general prohibition on possession of firearms by minors violated his Second Amendment right to bear arms.

The Washington Supreme Court ruled that the individual right to bear arms in the Second Amendment, see D.C. v. Heller, applied to the states under the Fourteenth Amendment Due Process Clause and the incorporation test set out in Duncan v. Louisiana.

The decision is surprising for its timing, for the issues it addresses, and for the issues it doesn't address.  As Justice Stephens wrote in concurrence, "Restraint is particularly appropriate here because the very question is currently pending before the United States Supreme Court. . . .  I do not believe this is an instance where [a state court ruling on a federal constitutional question can serve any purpose], particularly as our opinion is likely to be eclipsed before the ink it takes to print it is dry."

Indeed it's not clear what the Washington Supreme Court intended to accomplish with its ruling.  Its analysis draws heavily on Heller and follows a predictable path to incorporation under the Due Process Clause.  (The Washington court criticized the Second and Seventh Circuits for their restrained approaches, rejecting incorporation until the Supreme Court rules, and lauded the Ninth Circuit for its ruling incorporating the Second Amendment via the Due Process Clause.)  Thus the Washington Court said nothing new about Due Process incorporation that might guide or influence the Supreme Court. 

At the same time the Washington court ruled that its own state constitution also protected a right to bear arms and suggested that its own provision may well be stronger than the Second Amendment.  The analysis suggests that its entire ruling on the Second Amendment was not only unnecessary, but that its own constitutional provision provided a stronger basis than the Second Amendment for an individual right to bear arms.  But, oddly, the court deemphasized its analysis of its own state constitutional provision, hanging its hat (primarily) on the Second Amendment.

All the while the court entirely ignored incorporation via the Fourteenth Amendment Privileges or Immunities Clause--the claim that the appellants and others are pressing hardest at the Supreme Court.

This odd mix of timing, rulings, and non-rulings makes the case hard to explain.  Whatever the Washington court's purposes in issuing this ruling last week--simply to move it off the docket, or to guide or influence the Supreme Court--it might have done much better by limiting its ruling to the state constitutional issue.

SDS

ACS 2010 National Convention

The American Constitution Society will host its Eighth Annual National Convention in Washington, D.C., June 17-19, 2010.  Click here for more information and registration.

SDS

Pondering Iqbal

The Lewis & Clark Law Review just published its terrific symposium issue titled Pondering Iqbal--a reference to Ashcroft v. Iqbal, the Supreme Court's decision last term that heightened the pleading standard and resulted in countless dismissals, spawning an effort in Congress to return to a notice pleading standard.  Full papers are available at the Law Review's link here.

The Law Review put together an outstanding symposium issue, and all the papers are well worth a look.  Here are a few that jumped out at me:

Edward Brunet, The Substantive Origins of "Plausible Pleadings": An Introduction to the Symposium on Ashcroft v. Iqbal

Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases

Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation

Michael C. Dorf, Iqbal and Bad Apples

Stephen I. Vladeck, National Security and Bivens After Iqbal

Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal

SDS