Constitutional Law Prof Blog

Check it Out: Harvard J. L. & Pub. Pol'y on Law and Democracy

Check out the Harvard Journal of Law and Public Policy, Spring 2024, essays on law and democracy:

Jud Campbell, Four Views of the Nature of the Union

Sandy Levinson, Templates of American Democracy for the 21st Century: The Importance of Looking at American State Constitutions

Daniel H. Lowenstein, What Democracy is Not

Ilya Somin, How Federalism Promotes Unity Through Diversity

Check it Out: Sepper and Wiley on Religious Liberty Challenges to Social Insurance

Elizabeth Sepper and Lindsay Wiley recently posted The Religious Liberty Challenges to American-Style Social Insurance. Here's the abstract:

This Article argues that escalating religious challenges to the Affordable Care Act (ACA) form a major new vector in the campaign against social insurance in the United States. Where early constitutional challenges urging a libertarian ethos of “you’re on your own” largely failed, religious claimants are succeeding with a traditionalist entitlement to “take care of your own as you see fit.” In a mounting series of lawsuits, objectors challenge requirements that employers and insurers provide comprehensive, nondiscriminatory coverage of sexual and reproductive health services. They demand freedom to define their own communities and choose which medical needs they will support. They revive the notion of personal responsibility largely repudiated by health reform and add a moralized twist. The result is discrimination against marginalized groups, coercion of workers, and loss of democratically determined rights.

Bridging political economy and religion law scholarship, this Article attributes religious claimants’ successes to the ACA’s distinctively American accommodationist and market-first structure. Concessions that facilitated the Act’s passage in Congress now grant a foothold for religious objectors eager to rewrite the insurance social contract in the courts. Religious exemptions re-fragment the social collective—by family, firm, medical need, and religious belief. We are no longer “all in it together,” as the ACA would have it; we are separate and apart.

Check it Out: Shugerman on "Heads-I-Win, Tails-You-Lose" Originalism and "Vibe" Originalism

Jud Shugerman just posted "Heads-I-Win, Tails-You-Lose" Originalism and "Vibe" Originalism. Here's the abstract:

SEC v. Jarkesy represents a turning point – and arguably a legitimacy crisis -- for both the unitary executive theory of removal and originalism-in-practice. Over the last five years, a wave of scholarship by legal scholars and historians has disputed, and sometimes refuted, the historical claims by unitary theorists that Article II implies a presidential power to remove executive officers. In response to those arguments, I observe, first, that the legal academy’s prominent unitary executive theorists have fractured into contradictory positions, even internally contradictory positions. (There is a deep irony of “unitary” theory fracturing into multiple and contradictory theories).

Second, as the unitary theory has shifted and retreated from earlier historical claims, the different theorists have engaged in a shell game, which I will identify here as “Heads-I-Win, Tails-You-Lose” originalism. For example, unitary theorists rely on English practice as a model for Article II when it supports their theory, but when critics provide contrary evidence from English practice, unitary theorists – without blinking -- say English practice is irrelevant because the English did not have an American-style separation of powers. Somehow, the practice of the British Crown counts as “executive power” but the practice of English Parliament does not count as “legislative power.” Originalists often cite colonial British practice as an anti-model for the Framing (see the use of the Declaration of Independence and the historical context for the Bill of Rights), but suddenly and conveniently, unitary theorists now cite colonial British administration as evidence for “executive power” and Article II. Post-Ratification evidence sometimes counts, and sometimes it doesn’t, depending upon which side it benefits. The Federalist Papers count, except when they don’t. Marbury counts, except when it doesn’t. Unitary theorists dismiss the problem that the text of the Constitution is silent on removal, but somehow, silence in congressional debates count as evidence of original public meaning. But somehow mid- to late-nineteenth century cases and practices count as original public meaning. This is a methodological legitimacy crisis.

Third, echoing some other commentators (see Christine Kexel Chabot), I suggest that these theorists and the Roberts Court are engaged in “Vibe Originalism”: Justices and scholars making a presentist and ideological assumption about a constitutional text, a “vibe” framed as common sense, without support from historical evidence. (E.g., the Take Care clause surely creates an indefeasible presidential power). In separation of powers cases, this “vibe” shifts the burden of proof: Instead of bearing a burden of proof to strike down a congressional statute, the “vibe” creates an assumption of judicial activism, and those who argue for judicial restraint and Congress’s power under Article I suddenly bear the burden of proof to overcome the vibe’ After historians have disputed or disproven those assumptions, the theorists and Justices return to the vibe.

 

Check it Out: Pfander on Judicial Review of Unconventional Enforcement Regimes

James E. Pfander recently posted Judicial Review of Unconventional Enforcement Regimes. (Check this out along with Wasserman and Rhodes's piece.) Here's the abstract:

The Supreme Court’s decision in Whole Woman’s Health v. Jackson seriously complicates judicial review of unconventional private enforcement schemes. Announced in December 2021, before the leak and eventual publication of the Dobbs decision, WWH studiously declined to block the effectiveness of the Texas Heartbeat Act, S.B. 8, citing a reluctance to allow injunctive relief against state courts and judges. As a result, parties threatened with bounty-based private enforcement akin to that in S.B. 8 will struggle to secure an effective federal test of the constitutionality of state restrictions. The WWH framework encourages more states, both red and blue, to use unconventional private enforcement regimes to limit pre-enforcement review.

Legal scholarship on unconventional regimes like S.B. 8 has yet to consider the writ of prohibition as a vehicle for judicial review. This Essay puts the WWH decision into conversation with the forms of inferior-court supervision available through the common law writ of prohibition. Prohibition empowers superior courts to block lower courts from exercising authority over matters outside their jurisdiction. Among its other features, prohibition operates directly on lower courts and their judges, threatening them with the injunctive relief that WWH deemed improper in an Ex parte Young action. Prohibition thus offers one answer to the judicial-power concerns that derailed the WWH litigation and a foundation for a broader vision of federal judicial oversight of unconventional enforcement schemes.

Check it Out: Wasserman and Rhoses on Private Enforcement and Blue-State Revenge

Howard Wasserman and Rocky Rhodes just posted 303 Creative, Exclusive Private Enforcement, and Blue-State Revenge. Here's the abstract:

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this precludes federal rights-holders from vindicating their rights through pre-enforcement offensive litigation in federal court against the government or government officials responsible for enforcing the law. This threatens rights-holders with defending a state-court wave of costly and burdensome litigation to adjudicate the law’s constitutional validity.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

Check it Out: Sullivan on Lessons of the Plague Years

Check out Barry Sullivan's (Loyola Chicago) excellent Lessons of the Plague Years, 54 Loyola U. Chi. L. J. 15 (2022). Here's the abstract:

The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized.

President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to “follow the science.” During the 2020 election, the Democrats sought to portray themselves as the “party of science,” touting their willingness to “follow the science,” and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not “believe in science.” As this Article shows, however, the issue was more complicated than “following the science” or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent.

The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to “take Care that the Laws be faithfully executed.” For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called “unitary executive” theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have.

This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.

Check it Out: Tsai's Civic Education and Democracy's Flaws

Check out Robert Tsai's Civic Education and Democracy's Flaws, Nomos:

This is an invited essay developing remarks made at the 2021 Annual Meeting of the American Society for Political and Legal Philosophy. I respond to Seana Shiffrin’s plea for increased investment in teaching legal knowledge as a way to revitalize civic education and enhance democratic engagement. First, while I applaud Shiffrin’s embrace of a robust conception of citizenship, I am doubtful that increased facility with legal methods will be sufficient to cure the ailments that afflict American democracy. Instead of creating more citizens who are technically proficient in the law, we must raise a generation of political diagnosticians. Second, beyond habits such as listening, truth-telling, and toleration, we must cultivate a capacity for righteous outrage, fear of role reversal, and wisdom in managing the multiplicity of relationships and identities in modern life. Otherwise, teaching legal proficiency could very well reinforce existing patterns of corruption or inequality. Third, when it comes to the content of civic education, we should select texts that help citizens draw connections between despised policies and the structural features of our political existence. In other words, we should show citizens how to reason from injustice.

Check it Out: Koppelman's Emerging First Amendment Right to Mistreat Students

Check out Andrew Koppelman's Emerging First Amendment Right to Mistreat Students, Case Western L. Rev.:

Under the long-settled tradition of religious liberty, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents. Yet in two prominent cases, Kennedy v. Bremerton in the Supreme Court and Meriwether v. Hartop in the Sixth Circuit, courts have held that publicly employed teachers may exercise their First Amendment rights of free speech and religion even when doing so mistreats students.

In both cases, despite a long-established rule of deference to public employers’ need to control their own operations – and despite mighty efforts to accommodate difficult employees - public schools lost the capacity to protect students from misbehaving teachers. In each, the school proposed a solution that would give appropriate weight to each side’s most urgent interests. Not good enough, the court decreed: the religious side must be granted an absolute and uncompromising victory. It was oblivious to the countervailing interest. The language of privacy and autonomy was deployed to enable the religious to wield state authority and harm their students.

These are only two cases. But they come from high federal courts, one from the Supreme Court, and their similarity of approach, and resemblance to other recent treatments of religious liberty by the Court, is a reasonable basis for alarm.

Check it Out: Tang's Who's Afraid of Carson v. Makin?

Aaron Tang, Who's Afraid of Carson v. Makin?, 132 Yale L. J. Forum 504 (2022):

How worried should progressives be about the Supreme Court’s latest ruling in favor of publicly funded religious schools?

Maybe less than we have assumed. In this Essay, I argue that Carson v. Makin—which struck down Maine’s policy of excluding religious private schools from its publicly funded tuition-aid program—may have surprisingly limited repercussions for a cautiously hopeful reason. By enacting a statute that explicitly prohibits all private schools from discriminating against LGBTQ students, Maine’s progressive lawmakers simultaneously protected a vulnerable student population, limited church/state entanglement, and preserved the state’s commitment to public education. In other words, Carson teaches much about the Court’s strident efforts to shift the law further to the right. But its most important lesson may have more to do with how progressives can best respond to a Court that has forsaken us: through smart and impactful lawmaking.

Check it Out: Re's Should Gradualism Have Prevailed in Dobbs?

Richard M. Re, Should Gradualism Have Prevailed in Dobbs?, SSRN:

Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general, the Supreme Court should not impose massive disruption without first providing notice of its contemplated course of action. Only the Chief Justice followed that principle, and as a result his decision is the most compelling of the bunch. By contrast, the majority opinion sometimes claimed to be strictly formalist, particularly when doing so helped it dismiss prudential objections. Yet the majority’s most plausible rationale was, inevitably, steeped in judicial statecraft. In essence, the majority claimed that only grand, decisive action could meet the challenge at hand. But by acting in haste, the Court compromised its own deliberative process and prevented the public from adequately preparing for an avulsive shift in the law. The joint dissent’s treatment of precedent was, if anything, even less persuasive. The dissent’s own uses of precedent demonstrate how readily case law is thrown overboard – not just in the past few years, but throughout many decades. And new personnel can offer a uniquely compelling basis for revisiting case law. So, if the majority had reason to moderate, the dissenters did, too – by joining a gradualist opinion like the Chief’s.

Check it Out: Kalhan's Judicial Illiberalism

Anil Kalhan, Judicial Illiberalism: How Captured Courts are Entrenching Trump-Era Immigration Policies, 27 Bender's Immigration Bulletin 1971:

When President Joe Biden took the oath of office, expectations ran high for major changes in immigration policy. While Biden’s predecessor had implemented the most far-reaching anti-immigration program in nearly a century, the Trump presidency never garnered strong public or congressional support for its immigration restrictionist initiatives. Even as xenophobia rapidly took hold among many within the Republican Party’s political, media, and legal elites, polls steadily found that substantial majorities of Americans opposed the Trump immigration agenda. With this reservoir of popular support, Biden forcefully pledged as a candidate not only to take “urgent action to end the Trump Administration’s draconian policies,” but also to restart “the work of building a fair and humane immigration system.” And within hours of assuming office, his administration began dismantling Trump’s legacy.

More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-immigration legacy has been decidedly uneven. While some of the responsibility lies squarely with the White House itself, no less disquieting have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump-appointed judges to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Trump appointees have demonstrated an eagerness to perpetuate the anti-immigration policies of the candidate who voters decisively rejected in 2020, often deploying irregular methods and suspect legal reasoning to do so. The manner in which these judicial appointees have kneecapped the Biden immigration agenda offers a revealing window into how a federal judiciary increasingly captured by conservative extremists may continue to operate as an active, enthusiastic collaborator in efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substantive domains, for years to come.

Check it Out: Stahl's The Power of State Legislatures to Invalidate Private Deed Restrictions

Kenneth Stahl (Chapman), The Power of State Legislatures to Invalidate Private Deed Restrictions: Is it an Unconstitutional Taking?, Pepperdine L. Rev. (forthcoming):

Over the past several years state legislatures confronting a severe housing shortage have increasingly preempted local land use regulations that restrict housing supply in an effort to facilitate more housing production. But even where state legislatures have been successful, they now confront another problem: many of the preempted land use regulations are duplicated at the neighborhood or block level through private “covenants, conditions and restrictions” (CCRs) enforced by homeowners associations. In response, California’s legislature has begun aggressively invalidating or “overriding” these CCRs. While many states have barred HOAs from prohibiting pets, clotheslines, signs and flags, California has moved much farther, prohibiting HOAs from unreasonably limiting accessory dwelling units and overriding any private CCR that would inhibit the construction of 100% affordable housing of any density.

These overrides present serious legal questions because CCRs are property and contract rights that may be protected by the Constitution’s Takings and Contract clauses. Overrides have not resulted in much published litigation in the past, but California’s new wave of aggressive CCR overrides may change that. While the Contract Clause argument is exceptionally weak, homeowners who are disabled from enforcing a servitude benefitting their property due to a legislative override have a viable argument that the override interferes with their reasonable expectations regarding the use of their property, and therefore constitutes an unconstitutional taking. On balance, however, I argue that most CCR overrides will survive a takings challenge because the enforceability of CCRs has long been subject to alteration or even termination by courts or legislatures on public policy grounds, so a homeowner would reasonably expect a CCR to be unenforceable if it conflicts with public policy as determined by the legislature. Nevertheless, the current Supreme Court has been very aggressive in recent takings cases so legislatures will have to be careful in crafting overrides to ensure they satisfy the Court’s increasingly stringent takings standards.

Check it Out: Smith's Originalism, Common Good Constitutionalism, and Transparency

Michael L. Smith (Idaho), Originalism, Common Good Constitutionalism, and Transparency, Harvard J. L. and Public Policy (forthcoming):

A theory of interpretation that is more transparent tends to be preferable to less transparent alternatives. Increased transparency tends to promote the values of constraint, democratic legitimacy, and an understanding of what the law is. Under a transparency rubric, originalism, as a standard of interpretation, performs better than common good constitutionalism. Originalism provides a better defined (though still imperfect) basis for determining the correctness of claims about the Constitution means. Common good constitutionalism’s reliance on morally and politically loaded terminology makes it elusive as a standard of interpretation that tends to match the desires of the interpreter. At the implementation stage, however, those who implement common good constitutionalism do so in a transparent manner—reading the Constitution in line with their readily expressed moral and political inclinations. Originalism, on the other hand, is vulnerable to disingenuous interpreters who use originalism as a smokescreen to achieve political ends in the guise of neutrality. This casts doubts on originalist attempts to use common good constitutionalism as an opportunity to sell their theory to nonoriginalists.

Check it Out: Foran's Rights, Common Good, and the Separation of Powers

Michael Foran (Glasgow), Rights, Common Good, and the Separation of Powers, The Modern L. Rev.:

Common good constitutionalism seeks to ground and legitimate choices of constitutional design and interpretation in a manner committed to pursuing the flourishing of all members of the community. This raises important questions relating to the separation of powers and fundamental rights protection. This paper seeks to advance and defend an account of rights-based judicial review from within a common good constitutional framework. It will argue that rights and the common good are co-constitutive: a genuinely common good will ensure the protection of fundamental rights and genuinely fundamental rights will help constitute and further the common good. With this in mind, a conception of the separation of powers will be advanced wherein different organs of state act collaboratively to ensure both that fundamental rights are protected and that the state can pursue goals which help to further the common good.

Check it Out: Lemley's Red Courts, Blue Courts

Mark A. Lemley (Stanford), Red Courts, Blue Courts:

The federal judiciary is increasingly fragmented into red courts and blue courts. Democratic presidents overwhelmingly appoint judges in blue states, while Republicans mostly appoint judges in red states.

This is a recent phenomenon; it was much less true even a decade ago.
It is accelerating. And it is likely to corrode both the rule of law and the public’s perception of it. In this Essay I document the phenomenon, explain why it is dangerous, and offer some thoughts on how to fix it.

Check it Out: Shaub's Interbranch Equity

Jonathan David Shaub, Interbranch Equity, U. Penn. J. Const. L. (2023):

In recent years, Congress has increasingly turned to the courts to challenge executive actions. In these suits, the executive branch has strenuously pressed several distinct doctrinal arguments that interbranch cases are nonjusticiable and must be dismissed. These arguments, though expressed in the relevant language of each individual justiciability doctrine, are all centered on a single fundamental point—the judiciary should not be involved in refereeing a dispute that is solely between the legislative and executive branches. And this central contention that interbranch suits are exceptional, even when ultimately rejected, has largely succeeded in preventing the judiciary from finally resolving the merits of these interbranch cases before they become moot.

This Article rejects the interbranch exceptionalism that obscures most discussions of these cases and asserts that the judiciary should address—and resolve—interbranch cases on the merits under its equity jurisdiction. It shows that the executive branch has not historically followed the justiciability positions it now asserts, but in fact accepted and advocated for judicial intervention in the past. As the executive branch has asserted more robust and exclusive constitutional authority vis-à-vis Congress, however, it has also strategically adopted justiciability arguments to prevent judicial resolution of interbranch disputes. The executive branch is better positioned to engage in constitutional self-help, and these justiciability arguments enable it to retain its ex ante constitutional advantage in interbranch disputes. A close analysis of each of these doctrinal justiciability arguments demonstrates that interbranch cases are not exceptional, however. And well-established traditions of equity—which parallel justiciability inquiries related to standing and the political question doctrine—establish the appropriate case-by-case inquiry into the judicial role in an interbranch case. The judicial power extends to all cases in equity arising under the Constitution, including interbranch cases. Courts should not shirk from that responsibility. When appropriate under traditional equitable principles, courts should decide interbranch cases in equity on the merits. Shirking that duty is not a passive virtue but a decision to allow the separation of powers to be determined by constitutional self-help.

Check it Out: Zambrano, et al., The Full Faith and Credit Clause and the Puzzle of Abortion Laws

Diego Zambrano, Mariah Mastrodimos, and Sergio Valente (Stanford), The Full Faith and Credit Clause and the Puzzle of Abortion Laws:

Even before Dobbs overturned Roe v. Wade, states and legal observers were debating the constitutionality of another abortion-related law: Texas SB8. In mid-2021, Texas adopted a powerful new anti-abortion bill that barred anyone from performing abortions in the state of Texas starting at six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, SB8 relied entirely on private lawsuits. The Texas abortion law triggered a discussion over the use of private enforcement actions to attack federal constitutional rights. Critics argued that Texas indirectly nullified the then-established constitutional right to abortion, that the Supreme Court surrendered traditional tools to review state legislation, and that SB8’s private enforcement regime was a procedural Frankenstein that violated due process norms. These discussions remain relevant even after the Supreme Court’s overturning of Roe because blue counties with elected prosecutors may refuse to enforce state criminal abortion laws, and states will continue to consider private enforcement schemes to regulate abortion, interstate travel, and other individual rights. Indeed, California recently adopted a gun control statute that is modeled on SB8’s private enforcement scheme.

Most importantly, for our purposes, some states like California have countered SB8 with legal provisions that seek to shield in-state residents from out-of-state claims and even prohibit the enforcement of SB8 awards. The question, then, is not only whether new private enforcement schemes can survive constitutional challenges but whether other states can respond by shielding their own residents.

In this essay we focus on the constitutionality of one legislative response to SB8 adopted by California—AB 1666, a law that seeks to shield in-state medical providers from SB8-style actions by prohibiting California courts from serving as a venue for SB8 claims and barring enforcement of Texas SB8 judgments. California’s main concern was that California doctors could face crippling liability under SB8 for prescribing abortion pills via telemedicine to patients in Texas. The Constitutional problem, however, is that AB1666’s provisions will face challenges under the Full Faith and Credit Clause of Article IV (the “FFC”). This raises a wealth of questions about conflict of laws, interstate relations, horizontal federalism, and the federal Constitution.

In a sense, the FFC is the unheralded workhorse of the original constitution, single-handedly maintaining a system of federalism in which states are obligated to recognize and enforce other states’ laws and judgments. Without it, states would be free to ignore each other’s’ laws, weakening any semblance of a national union and lending a hand to political polarization. Indeed, growing polarization will increase pressure on the FFC, as states seek ways to battle each other over topics like abortion, guns, and LGBTQ related laws.

Focusing specifically on the interaction of California’s AB1666, Texas SB8, and the FFC, we argue that California will probably be able to take advantage of exceptions to the FFC to defend its pro-choice laws. An analysis of recent doctrine demonstrates that California’s venue bar is likely constitutional. The judgment enforcement provision, however, will face trickier challenges and its constitutionality under the FFC is too close to call. The central question going forward is whether courts will interpret the FFC in a flexible and pragmatic manner—allowing for capacious exceptions—or will, by contrast, apply a tight leash on state legislative schemes.

Check it Out: Witt's Weaponized from the Beginning

John Fabian Witt (Yale), Weaponized from the beginning:

Standard accounts of the modern First Amendment attribute its origins to a moment of hopeful discovery of the value of free speech for democratic self-government. But the reverse is also true. The modern law of speech arose simultaneous with the World War One-era realization that unregulated communication in mass society also meant propaganda, lies, and the distortion of public opinion. Key figures in the first generation of modern free speech thus treated speech freedoms as necessary but radically insufficient in the production of democratic public opinion. Intermediary institutions, they believed, shaped information flows and helped produce public opinion. Some, like Walter Lippmann, turned to the administrative state. Others, like Roger Baldwin, championed labor organizations and industrial democracy. A century later, our crisis arises in part out of attacks on the administrative state and the collapse of labor unions, which have undermined the very institutions that prescient observers a century ago believed crucial for managing distortion in the democratic public sphere.

Check it Out: Shaw's The Public Right to Education

Matthew Patrick Shaw (Vanderbilt), The Public Right to Education, Chicago L. Rev.:

Public education is “the most important function of state and local government” and yet not a “fundamental right or liberty.” This Article engages one of constitutional law’s most intractable problems by introducing “the public right to education” as a doctrinal pathway to a constitutional right to education process in three steps. First, it identifies that the otherwise right-to-education foreclosing case, San Antonio Independent School District v. Rodriguez, only contemplated education as a fundamental right or liberty interest. Second, by identifying public education as a due process–protected property interest, this Article presents a viable pathway for circumventing Rodriguez. Third, mindful of myriad judicial competency concerns and consistent with the Court’s recent call to reimagine a “twenty-first century” due process, it reintroduces the “public right” to understand how schoolchildren might appeal to substantive due process to protect their rights to state-created interests. This ambitious yet modest approach covers securing schoolchildren’s rights to both discrete education tangibles and the integral educational opportunity that the states have assumed the affirmative duty to provide. This approach also has promise for improving individual rights to quality public schooling.

Check it Out: Rodriguez's Regime Change

Cristina Rodriguez (Yale), Regime Change, 135 Harv. L. Rev. 1:

In this Foreword, I take October Term 2020 — a Term of transition — as an occasion to explore both the processes and the promise of what I will call regime change, or the replacement within the executive branch of one set of constitutional, interpretive, philosophical, and policy commitments with another. Given the occasion, I focus on the role of law, legal argument, and the courts in enabling or thwarting regime change and the democratic evolution it represents. Indeed, our current political transition confronts us with a central tension of our legal order, between a judicial and legal culture that valorizes stability and custom using language and concepts that sound in rule of law, and the democratic imperative that our institutions help effectuate rather than impede the political will reflected in election results.

My basic claim will be that we ought not rush to treat disruption and change as shocks or aberrations that must be rigorously explained. Shifts in legal argument should not be met with skepticism, and they often should be credited as legitimate reinterpretations of law that, in turn, will help give rise to a new political regime. More generally, we should regard rapid evolution in legal interpretation and corresponding policy development as things to be valued, enabled, and pursued. Valuing and pursuing these forms of change are justified, ultimately, because they help to sustain a connection between government and democratic politics. This connection should lead us to identify and then think twice about legal doctrines, institutional features, and modes of argument that slow transitions and transformations down, either intentionally or in service of objectives laudable on their face. We should be wary of the turn to legalisms that purport to advance the rule of law but that in fact inhibit the evolution of our political order. Moments of transition, such as the one through which we are living, can help to reveal how the concept of the rule of law forms part of an agonistic struggle perpetuated not just by courts, but also by political actors. The concept provides a ready-made vocabulary, well rooted in our legal culture, that serves important values but that can also be employed to stifle democratic development.