Wednesday, May 20, 2009
Diane Wood in D.C.
According to this report from Jan Crawford Greenburg, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit made an unexpected trip today to Washington, D.C. Under the circumstances, it is not hard to come up with some plausible reasons for the visit. Most observers seem to think the President is likely to announce the nomination next week.
Thursday, May 14, 2009
Chadha
QUESTION: I think I understand that Congress can delegate its legislative power to executive and administrative agencies, but cannot subsequently retract it (Such a “legislative veto” is unconstitutional. INS v. Chadha). We also talked about the exceptional conditions in which just one house can act alone (impeachments, presidential elections, treaty ratification, etc.). What I’m not sure of is what exactly Congress as a whole CAN veto?
ANSWER: What matters is not whether Congress's action might be characterized as a "veto" -- a rejection of administration policy. What matters is whether Congress, when it acts to affect the rights and responsibilities of persons outside the legislative branch, has followed all of the requirements of the lawmaking process set out in Article I. That was the real (and only) problem in Chadha.
ANSWER: What matters is not whether Congress's action might be characterized as a "veto" -- a rejection of administration policy. What matters is whether Congress, when it acts to affect the rights and responsibilities of persons outside the legislative branch, has followed all of the requirements of the lawmaking process set out in Article I. That was the real (and only) problem in Chadha.
Wednesday, May 13, 2009
Substantive due process
QUESTION: I am having trouble separating the controversy surrounding the incorporation of the Bill of Rights from the doctrine of substantive due process. Is it correct to say that substantive due process arose from a belief that there are rights "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" that were not included in the Bill of Rights, and therefore couldn't be incorporated?
ANSWER: Not quite. First, the first substantive right to be adjudged by the Supreme Court to be protected by the Due Process Clause was the right to "just compensation" protected by the Fifth Amendment. Thus, at its outset, substantive due process arose because of incorporation. Second, I would agree that the Court came to believe that certain rights that are "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" are not set out in the first eight amendments to the Constitution. And if that is case -- and the Court had already set these as the standard for what due process means -- that leads to the protection of some unenumerated rights. That explains why the Court has come to protect certain rights are "fundamental" and constitutionally protected even though they do not appear in the Constitution. But unenumerated and substantive are different ideas. It is true that many (perhaps all) of these unenumerated rights are substantive. But that need not have been the case.
QUESTION: I am also trying to figure out how West Coast Hotel/Lee Optical overrule Lochner - it seems that they are recognizing that state governments are not free to intermeddle with individual's economic activities at their whim, but hold that rational basis scrutiny rather than strict scrutiny is appropriate for determining if the interference with economic activity is valid. Is this close? Any clarification would be greatly appreciated.
ANSWER: Well yes, that is true. Those decisions move the level of review from something approaching strict scrutiny to something approaching nonexistent (rational basis) review for ordinary economic legislation under the Due Process Clause. To me, that is a 180-degree turn. The difference between the aggressive form of judicial review in Lochner, and the all-you-need-is-some-hypotetically-plausibly-rational-basis review of Lee Optical is that between night and day. And that is why I think it is fair to say that the later decisions effectively overruled Lochner (though they did not do so explicitly).
ANSWER: Not quite. First, the first substantive right to be adjudged by the Supreme Court to be protected by the Due Process Clause was the right to "just compensation" protected by the Fifth Amendment. Thus, at its outset, substantive due process arose because of incorporation. Second, I would agree that the Court came to believe that certain rights that are "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" are not set out in the first eight amendments to the Constitution. And if that is case -- and the Court had already set these as the standard for what due process means -- that leads to the protection of some unenumerated rights. That explains why the Court has come to protect certain rights are "fundamental" and constitutionally protected even though they do not appear in the Constitution. But unenumerated and substantive are different ideas. It is true that many (perhaps all) of these unenumerated rights are substantive. But that need not have been the case.
QUESTION: I am also trying to figure out how West Coast Hotel/Lee Optical overrule Lochner - it seems that they are recognizing that state governments are not free to intermeddle with individual's economic activities at their whim, but hold that rational basis scrutiny rather than strict scrutiny is appropriate for determining if the interference with economic activity is valid. Is this close? Any clarification would be greatly appreciated.
ANSWER: Well yes, that is true. Those decisions move the level of review from something approaching strict scrutiny to something approaching nonexistent (rational basis) review for ordinary economic legislation under the Due Process Clause. To me, that is a 180-degree turn. The difference between the aggressive form of judicial review in Lochner, and the all-you-need-is-some-hypotetically-plausibly-rational-basis review of Lee Optical is that between night and day. And that is why I think it is fair to say that the later decisions effectively overruled Lochner (though they did not do so explicitly).
Groupwise seems to be down
I cannot get into my Groupwise account, either via the regular client or through the web portal. I apologize if you have a question waiting in my in-box. I will keep trying throughout the evening. Once I can access my e-mail, I will post my answers here.
Preemption
QUESTION: I noticed on your 2001 practice exam in the question about a federal voting regulation where Congress was imposing a nationwide standard, that preemption wasn't an issue. I'm having trouble seeing where it is or isn't an issue. Does preemption only come into play in terms of commercial regulation rather than something like voting?
ANSWER: No. Preemption has nothing to do with the particular subject matter at issue. It is relevant when a party invokes state law, and the defendant claims that the state law is invalid or inapplicable because it is preempted (it conflicts with a validly enacted federal law). I'm not remembering exactly the facts of the hypo you reference, but my guess is that no one was invoking a state law, thus preemption was beside the point.
ANSWER: No. Preemption has nothing to do with the particular subject matter at issue. It is relevant when a party invokes state law, and the defendant claims that the state law is invalid or inapplicable because it is preempted (it conflicts with a validly enacted federal law). I'm not remembering exactly the facts of the hypo you reference, but my guess is that no one was invoking a state law, thus preemption was beside the point.
Lopez and aggregate effects
QUESTION: Under the substantial affects prong of Lopez, if the activity examined is neither economic or commercial, can we still examine it in the aggregate or must be examine it as an individual instance?
ANSWER: The Court says, in Lopez or Morrison (I forget which) (and I'm paraphrasing): "We have never upheld the regulation of an intrastate, noncommercial activity based on its aggregate effects on interstate commerce." That is obliquely worded. It is not saying conclusively that such effects can never be aggregated. But it is also the most logical inference, perhaps with a small escape hatch.
ANSWER: The Court says, in Lopez or Morrison (I forget which) (and I'm paraphrasing): "We have never upheld the regulation of an intrastate, noncommercial activity based on its aggregate effects on interstate commerce." That is obliquely worded. It is not saying conclusively that such effects can never be aggregated. But it is also the most logical inference, perhaps with a small escape hatch.
Raich
QUESTION: I cannot see how Raich helps our analysis under the Commerce Clause discussion. Unless we assume that noncommercial, intrastate activities can be aggregated to substantially affect interstate commerce, it appears to be relatively similar to Lopez and Morrison. Can you help?
ANSWER: I will try. The statute challenged in Raich was the Controlled Substances Act, which Angel Raich conceded regulated an interstate commercial market. Thus, it is the CSA which we, as a first tier matter, subject to the Lopez test. Doing so, we conclude that, because it regulates a commercial activity, it fits within the third category. Angel Riach argued, though, that Congress was under an obligation to except her activity from the coverage of the CSA because her activity was noncommercial and purely intrastate. The Court said no. The Court did NOT say that her noncommercial, intrastate activity could be aggregatged, and thus it had (as a class) a substantial effect on interstate commerce. Instead, the Court held that the CSA was regulating commercial activity, and Congress need not create an exception to such valid regulation (for intrastate noncommerical instances of the regulated activity) when it has a reasonable basis for concluding that such an exception will undermine the broader regulatory program (i.e., the CSA). In this way, Angel Raich's specific activity was not what Congress targeted, unlike Rodrigo Lopez's possession of a gun of a school zone. In Raich, the regulated activity was the distribution of narcotics, and this makes the doctrinal analysis different.
ANSWER: I will try. The statute challenged in Raich was the Controlled Substances Act, which Angel Raich conceded regulated an interstate commercial market. Thus, it is the CSA which we, as a first tier matter, subject to the Lopez test. Doing so, we conclude that, because it regulates a commercial activity, it fits within the third category. Angel Riach argued, though, that Congress was under an obligation to except her activity from the coverage of the CSA because her activity was noncommercial and purely intrastate. The Court said no. The Court did NOT say that her noncommercial, intrastate activity could be aggregatged, and thus it had (as a class) a substantial effect on interstate commerce. Instead, the Court held that the CSA was regulating commercial activity, and Congress need not create an exception to such valid regulation (for intrastate noncommerical instances of the regulated activity) when it has a reasonable basis for concluding that such an exception will undermine the broader regulatory program (i.e., the CSA). In this way, Angel Raich's specific activity was not what Congress targeted, unlike Rodrigo Lopez's possession of a gun of a school zone. In Raich, the regulated activity was the distribution of narcotics, and this makes the doctrinal analysis different.
Article IV, section 2 "fundamentalness"
QUESTION: Art. 4., section 2 protects states from infringing on fundamental rights. It is my understanding that these are very narrow: right to travel, right to pursue common calling or vocation etc. My question is are the fundamental rights that are derived from substantive due process, like the right to marriage or right to privacy, protected as well by Art. 4.2?
ANSWER: Two response. First, I don't think the list of rights considered "fundamental" for purposes of Article IV, section 2 is all that narrow. It includes, for instance, the right to pursue a common calling, the right to own and dispose of property, the right of access to the courts, and a host of other things thought "important to the unity of the nation." Second, I would say probably, yes, to your second question, as that category is so much smaller. There are not that many rights that are so important -- "implicit in any scheme of ordered liberty" -- as to be "fundamental" as a matter of due process. Thus, it is likely true (though I'm not certain) that those rights that are fundamental under the Due Process Clause would also be considered a "privilege" or "immunity" for purposes of Article IV.
ANSWER: Two response. First, I don't think the list of rights considered "fundamental" for purposes of Article IV, section 2 is all that narrow. It includes, for instance, the right to pursue a common calling, the right to own and dispose of property, the right of access to the courts, and a host of other things thought "important to the unity of the nation." Second, I would say probably, yes, to your second question, as that category is so much smaller. There are not that many rights that are so important -- "implicit in any scheme of ordered liberty" -- as to be "fundamental" as a matter of due process. Thus, it is likely true (though I'm not certain) that those rights that are fundamental under the Due Process Clause would also be considered a "privilege" or "immunity" for purposes of Article IV.
Tiers of scrutiny
QUESTION: Carolene Products and Lee Optical = rational basis/ deferential reivew
ANSWER: I agree.
QUESTION: Griswold= strict scrutiny
ANSWER: Agreed.
QUESTION: Roe= Strict scrutiny
ANSWER: Agreed.
QUESTION: Casey= intermediate scrutiny (it seems that the court is rejecting the use of strict scrutiny for abortion cases in favor of an "undue burden" analysis which i am guessing is some form of intermediate scrutiny)
ANSWER: I would say Casey just does not really plot on this graph. It is different. The "undue burden" standard, in a sense, is a specific translation of the protection of the woman's fundamental right in light of the state's legitimate (and perhaps more than that) interest in the fetus. I'm not sure we can say much more than that in terms of where it "fits."
QUESTION: Also, in regards to footnote 4 in Carolene Products, does Stone mean that in those three situations (the right is enumerated, effects political process, aimed at discrete/insular minorities) that strict scrutiny should be used instead of deferential review or was he merely saying that something more then deferential review should be used w/o actually specifying what standard should be used instead?
QUESTION: Also, in regards to footnote 4 in Carolene Products, does Stone mean that in those three situations (the right is enumerated, effects political process, aimed at discrete/insular minorities) that strict scrutiny should be used instead of deferential review or was he merely saying that something more then deferential review should be used w/o actually specifying what standard should be used instead?
ANSWER: Given that this was purely dicta, he was not getting so specific. I think he was generally suggesting that, in these circumstances, some level of more aggressive judicial review, something certainly more than rational basis, may be appropriate. But, given the context, he had no reason to be any more detailed than this.
Dormant commerce clause
QUESTION: My understanding is that regardless of the nature of the law in question (facially discriminatory, discriminatory in purpose or effect), it is subject to a Pike balancing/undue burden test.
ANSWER: I don't think that is right. If the law discriminates against interstate commerce, then it is subject to the far more rigorous "heightened scrutiny" standard. Because this is far more demanding than the "undue burden" test, I don't think there is any need to subject a discriminatory law to the Pike test as well. If it passes the very strict test for discriminatory laws, it will (by definition) pass the less demanding test.
QUESTION: In regards to facially discriminatory laws, the level of inquiry is high, at strict scrutiny, which in turn creates the notion of "virtually invalid per se." In cases involving a law which is discriminatory in purpose or effect, the Pike balancing test is much more deferential, with a lower level of scrutiny. Is my rudimentary understanding at least partially on track?
ANSWER: Just to be clear, the "heightened scrutiny" test (non-protectionist interest, no other nondiscriminatory means) applies to ALL state or local laws that discriminate against interstate commerce, regardless of whether that discrimination is facial, in purpose, or in effect. The Pike test is essentially the lesser, less rigorous standard applicable to laws that do not discriminate against interstate commerce but nonetheless impose burdens on interstate commerce.
State vs. local governments
QUESTION: I realize this is kind of a broad question at this point, but to what extent (if any) does constitutionality differ between local (e.g., county or city) regulation and state regulation? In considering all the topics we’ve talked about this semester, are there any constitutional variances on how local issues are dealt with compared to state issues?
ANSWER: No. For purposes of what we studied this semester (and for virtually all of federal constitutional law), there is no difference between state, city, or municipal governments. They are all considered political subdivisions of the states. (The Camden case is probably the best on this point, of what we studied.) There is a small difference under the Eleventh Amendment, but that is outside the scope of our course.
ANSWER: No. For purposes of what we studied this semester (and for virtually all of federal constitutional law), there is no difference between state, city, or municipal governments. They are all considered political subdivisions of the states. (The Camden case is probably the best on this point, of what we studied.) There is a small difference under the Eleventh Amendment, but that is outside the scope of our course.
Monday, May 4, 2009
Enumerated powers
QUESTION: I'm getting confused when trying to justify congressional authority on some power other than commerce, spending, or tax. Would I turn to the necessary and proper clause or section 5 of the 14th Amendment or something else? Basically, I'm fuzzy on how to explain congressional authority when the statute has nothing to do with money.
ANSWER: A couple of response. First, much of what Congress can regulate using its commerce power need not concern money, at least directly. Recall Wickard v. Filburn. Or Gonzales v. Raich. Even the Civil Rights Act cases from the 1960s -- Heart of Atlanta Motel and McClung -- were not really about money, but instead racial discrimination. Second, yes, if the three powers you mention cannot justify the legislation, we have to look elsewhere, such as Section 5 or the treaty power (or the postal roads power or whatever). Just to be clear, though: the Necessary and Proper Clause is not a "power" by itself. It is about means, not ends. So it can never be invoked by Congress standing alone. Instead, it permits Congress wide latitude in selecting appropriate means once it is resolved that the objective is within Congress's enumerated powers.
ANSWER: A couple of response. First, much of what Congress can regulate using its commerce power need not concern money, at least directly. Recall Wickard v. Filburn. Or Gonzales v. Raich. Even the Civil Rights Act cases from the 1960s -- Heart of Atlanta Motel and McClung -- were not really about money, but instead racial discrimination. Second, yes, if the three powers you mention cannot justify the legislation, we have to look elsewhere, such as Section 5 or the treaty power (or the postal roads power or whatever). Just to be clear, though: the Necessary and Proper Clause is not a "power" by itself. It is about means, not ends. So it can never be invoked by Congress standing alone. Instead, it permits Congress wide latitude in selecting appropriate means once it is resolved that the objective is within Congress's enumerated powers.
Friday, May 1, 2009
Privileges and/or immunities
More from my inbox:
QUESTION: I am having some trouble understanding the difference between the P&I clause in the 14th amendment and the Art. 4 Sec. 2 P&I clause. My understanding is that Art. 4 P&I is a limit on states ability to regulate in a way that discriminates on the basis of state residency, but that it only protects certain P&I like the right to common calling/vocation, access to courts/medical care, right to travel etc. My question, is why do the plaintiffs in the Slaughter House cases challenge the monopoly law under the 14th amendment P&I clause? If the Art. 4 clause applies to states, and one of the fundamental P&I it protects is common calling/vocation, then why do they even bother trying to invalidate the law through the 14th amendment?
ANSWER: In short, the plaintiffs in Slaughter-House -- butchers who were forced to use the Crescent City Livestock slaughter-house -- were Louisiana residents. They had no basis for claiming that they had been discriminated against due to their state of residence. And it is only that sort of discrimination that is the concern of the Privileges and Immunities Clause of Article IV, section 2.
QUESTION: I have similar confusion about the Saenz case. Why did the court use the 14th amendment P&I clause to knock down the state law when the right to travel is protected by the Art. 4 P&I clause? Why didn’t they simply invalidate the law using the Art. 4 P&I clause?
ANSWER: Those are different aspects of the right to travel. The one at issue in Saenz concerned the right of interstate migration, the right to move from one state to another and become a resident of that second state. The aspect of the right to travel protected by Article IV, section 2 is the right, as a non-resident, to visit another state and generally to be treated equally. Because the plaintiffs in Saenz were California residents, Article IV, section 2 was simply irrelevant.
QUESTION: In the Slaughter-House decision there is some line about how the 14th amendment P&I clause “was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.” Wasn’t the entire purpose of the 14th amendment to protect people from states? Isn’t the court in Saenz using 14th amendments P&I clause as a basis for invalidating the CA law?
ANSWER: Well, I think that line is a bit of an overstatement. Even the majority in Slaughter-House would have agreed that the Privileges or Immunities Clause of the Fourteenth Amendment is a constitutional restriction on how states treat their own citizens. But they construed it as applying to a very small, relatively insignificant batch of rights. One, though, was the right to interstate migration, and this was the right vindicated in Saenz.
QUESTION: I am having some trouble understanding the difference between the P&I clause in the 14th amendment and the Art. 4 Sec. 2 P&I clause. My understanding is that Art. 4 P&I is a limit on states ability to regulate in a way that discriminates on the basis of state residency, but that it only protects certain P&I like the right to common calling/vocation, access to courts/medical care, right to travel etc. My question, is why do the plaintiffs in the Slaughter House cases challenge the monopoly law under the 14th amendment P&I clause? If the Art. 4 clause applies to states, and one of the fundamental P&I it protects is common calling/vocation, then why do they even bother trying to invalidate the law through the 14th amendment?
ANSWER: In short, the plaintiffs in Slaughter-House -- butchers who were forced to use the Crescent City Livestock slaughter-house -- were Louisiana residents. They had no basis for claiming that they had been discriminated against due to their state of residence. And it is only that sort of discrimination that is the concern of the Privileges and Immunities Clause of Article IV, section 2.
QUESTION: I have similar confusion about the Saenz case. Why did the court use the 14th amendment P&I clause to knock down the state law when the right to travel is protected by the Art. 4 P&I clause? Why didn’t they simply invalidate the law using the Art. 4 P&I clause?
ANSWER: Those are different aspects of the right to travel. The one at issue in Saenz concerned the right of interstate migration, the right to move from one state to another and become a resident of that second state. The aspect of the right to travel protected by Article IV, section 2 is the right, as a non-resident, to visit another state and generally to be treated equally. Because the plaintiffs in Saenz were California residents, Article IV, section 2 was simply irrelevant.
QUESTION: In the Slaughter-House decision there is some line about how the 14th amendment P&I clause “was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.” Wasn’t the entire purpose of the 14th amendment to protect people from states? Isn’t the court in Saenz using 14th amendments P&I clause as a basis for invalidating the CA law?
ANSWER: Well, I think that line is a bit of an overstatement. Even the majority in Slaughter-House would have agreed that the Privileges or Immunities Clause of the Fourteenth Amendment is a constitutional restriction on how states treat their own citizens. But they construed it as applying to a very small, relatively insignificant batch of rights. One, though, was the right to interstate migration, and this was the right vindicated in Saenz.
Levels of scrutiny
Several questions in my inbox concerning the applicable levels of judicial scrutiny in particular contexts:
QUESTION: I had a few questions on the level of scrutiny used for Dormant commerce clause and also for enumerated rights. First, the dormant Commerce Clause, for facially discriminatory laws: The language of substantial interest with no reasonable alternative sounds a lot like the intermediate scrutiny of Article IV except that "no reasonable alternative" sounds more demanding than "substantially related to." If anything that sounds a lot like strict scrutiny's necessary, is it a hybrid of the two or is it pretty much intermediate scrutiny?
ANSWER: I would characterize it as a sort of hybrid, tailored to the underlying purposes of the clause. The requirement is (a) a legitimate (i.e., non-protectionist) purpose, and (b) means that are necessary (i.e., no nondiscriminatory alternatives) to achieve that interest. The applicable scrutiny is "strict" in a sense, but only with respect to the means-ends fit, not the importance of the state objective.
QUESTION: For Neutral with Undue Burden under the dormant Commerce Clause: "legitimate interest" seems to imply deferential scrutiny but the Pike balancing is much more strict than a "rational basis" for the law.
ANSWER: I'm not sure I agree. I would characterize the Pike test as fairly deferential.
QUESTION: Is the "legitimate interest" portion really the same interest as deferential scrutiny?
ANSWER: I think it is the same as that for discriminatory state laws. The purpose the law serves, in this context, must be something other than economic protectionism.
QUESTION: Are all currently incorporated enumerated rights given strict scrutiny? What about non incorporated enumerated rights when it is a federal law that's at issue?
ANSWER: This is complicated. With respect to specifically incorporated rights appearing in the first eight amendments (such as the right to counsel, the right to confront witnesses, or the right to be free from unreasonable searches or seizures), the Court has worked out clause- or right-specific doctrines. I'm not sure I would really characterize those doctrines as "strict scrutiny"; that would be painting with too broad a brush. Certainly the governmental action gets close judicial examination. But it is not the same sort of analysis as what we have seen with respect to the rights deemed "fundamental" as a matter of due process that we have studied, where the Court asks whether the government's interest is compelling and whether the means are narrowly tailored. Perhaps it is strict scrutiny in some sense, but it is translated into a particular doctrinal context, such that the constitutional analysis proceeds differently. You will see this in great detail if you take criminal procedure. And you will see it next fall with respect to the First Amendment.
QUESTION: I had a few questions on the level of scrutiny used for Dormant commerce clause and also for enumerated rights. First, the dormant Commerce Clause, for facially discriminatory laws: The language of substantial interest with no reasonable alternative sounds a lot like the intermediate scrutiny of Article IV except that "no reasonable alternative" sounds more demanding than "substantially related to." If anything that sounds a lot like strict scrutiny's necessary, is it a hybrid of the two or is it pretty much intermediate scrutiny?
ANSWER: I would characterize it as a sort of hybrid, tailored to the underlying purposes of the clause. The requirement is (a) a legitimate (i.e., non-protectionist) purpose, and (b) means that are necessary (i.e., no nondiscriminatory alternatives) to achieve that interest. The applicable scrutiny is "strict" in a sense, but only with respect to the means-ends fit, not the importance of the state objective.
QUESTION: For Neutral with Undue Burden under the dormant Commerce Clause: "legitimate interest" seems to imply deferential scrutiny but the Pike balancing is much more strict than a "rational basis" for the law.
ANSWER: I'm not sure I agree. I would characterize the Pike test as fairly deferential.
QUESTION: Is the "legitimate interest" portion really the same interest as deferential scrutiny?
ANSWER: I think it is the same as that for discriminatory state laws. The purpose the law serves, in this context, must be something other than economic protectionism.
QUESTION: Are all currently incorporated enumerated rights given strict scrutiny? What about non incorporated enumerated rights when it is a federal law that's at issue?
ANSWER: This is complicated. With respect to specifically incorporated rights appearing in the first eight amendments (such as the right to counsel, the right to confront witnesses, or the right to be free from unreasonable searches or seizures), the Court has worked out clause- or right-specific doctrines. I'm not sure I would really characterize those doctrines as "strict scrutiny"; that would be painting with too broad a brush. Certainly the governmental action gets close judicial examination. But it is not the same sort of analysis as what we have seen with respect to the rights deemed "fundamental" as a matter of due process that we have studied, where the Court asks whether the government's interest is compelling and whether the means are narrowly tailored. Perhaps it is strict scrutiny in some sense, but it is translated into a particular doctrinal context, such that the constitutional analysis proceeds differently. You will see this in great detail if you take criminal procedure. And you will see it next fall with respect to the First Amendment.
My availability between now and the final exam
Here is a schedule of when I will be holding office hours (and having a review session) over the next two weeks:
Monday, May 4: office hours from 11:00 to 1:00.
Tuesday, May 5: office hours from noon to 2:00.
Tuesday, May 12: office hours from 9:30 to noon, review session from 1:00 to 3:30.
Wednesday, May 13: office hours from 9:15 to 11:15.
I might be free at a few other times, but this is what I can commit to for the time being. Also, I am happy to field questions by e-mail. Those of a general interest I will answer on the course blog.
Monday, May 4: office hours from 11:00 to 1:00.
Tuesday, May 5: office hours from noon to 2:00.
Tuesday, May 12: office hours from 9:30 to noon, review session from 1:00 to 3:30.
Wednesday, May 13: office hours from 9:15 to 11:15.
I might be free at a few other times, but this is what I can commit to for the time being. Also, I am happy to field questions by e-mail. Those of a general interest I will answer on the course blog.
Thursday, April 30, 2009
Exemptions from anti-discrimination laws
I just received this interesting question regarding the California Supreme Court's decision of earlier this week.
QUESTION: Hi Joony. I saw this article today and was wondering what it means constitutionally. It seems to me that the private schools referenced in this article can now discriminate against students on ANY basis, including race. Wouldn't that violate federal law? Are they exempt? Please let me know what you think about this.
ANSWER: Hi studenty. Actually, many civil rights laws exempt private clubs and organizations, especially religious ones, from their coverage. Sometimes these exemptions are purely a policy choice. (My recollection is that private schools are, in fact, exempt from many federal civil rights laws, but I'm not certain of this. Certain forms of discrimination, however, can disqualify them from various benefits, such as being declared a charity, donations to which would generate a federal tax deduction.) In some instances, though, these exemptions are constitutionally required by virtue of the First Amendment. The Supreme Court has interpreted the First Amendment as protecting a right of association, and that right includes the right not to be forced by the government to associate with people who would undermine the organization's message. The most famous case on this point is Boy Scouts v. Dale, where the Court invalidated New Jersey's attempt to apply its law prohibiting discrimination on the basis of sexual orientation to the Boy Scouts, who had dismissed a gay scout leader. Not many organizations are exempt statutorily, and fewer still would have a First Amendment claim to be entitled to continue their discrimination. But the short answer to your question is yes, there are several such exemptions in civil rights laws, and many are constitutionally necessary.
QUESTION: Hi Joony. I saw this article today and was wondering what it means constitutionally. It seems to me that the private schools referenced in this article can now discriminate against students on ANY basis, including race. Wouldn't that violate federal law? Are they exempt? Please let me know what you think about this.
ANSWER: Hi studenty. Actually, many civil rights laws exempt private clubs and organizations, especially religious ones, from their coverage. Sometimes these exemptions are purely a policy choice. (My recollection is that private schools are, in fact, exempt from many federal civil rights laws, but I'm not certain of this. Certain forms of discrimination, however, can disqualify them from various benefits, such as being declared a charity, donations to which would generate a federal tax deduction.) In some instances, though, these exemptions are constitutionally required by virtue of the First Amendment. The Supreme Court has interpreted the First Amendment as protecting a right of association, and that right includes the right not to be forced by the government to associate with people who would undermine the organization's message. The most famous case on this point is Boy Scouts v. Dale, where the Court invalidated New Jersey's attempt to apply its law prohibiting discrimination on the basis of sexual orientation to the Boy Scouts, who had dismissed a gay scout leader. Not many organizations are exempt statutorily, and fewer still would have a First Amendment claim to be entitled to continue their discrimination. But the short answer to your question is yes, there are several such exemptions in civil rights laws, and many are constitutionally necessary.
Thursday, March 26, 2009
Quarantines and the dormant Commerce Clause
Yesterday in class, Hannah raised the question posed by then-Justice Rehnquist in his dissent in Philadelphia v. New Jersey: how was New Jersey's out-of-state solid waste ban any different from state quarantines, which the Court had previously upheld. I tried to answer her question, but I could tell my effort was not terribly successful. Let me explain further now.
In the quarantine situation, the state is attempting to completely bar or eradicate some noxious agent from within its borders: hoof and mouth disease, the Mediterranean fruit fly, or whatever. To eradicate this menace, the state takes a few complementary steps. First, it takes action to destroy its existence within the state's borders. Second, it bars anything from coming into the state that might contain the agent. (This second step, of course, is the quarantine that has been upheld on dormant Commerce Clause challenge.) The quarantine is constitutional because, when seen in context, it is part of a nondiscriminatory effort to completely eradicate or eliminate the destructive agent from within the state's borders. (Alternatively, you could say the state has no non-discriminatory alternatives to accomplish this aspect of its objective.)
Contrast that with how New Jersey approached the problem of solid waste. It did not think that the existence of solid waste per se within its borders was a public health problem. Nor did it think that the disposal of solid waste within its borders was a public health problem. Instead, it wanted to reduce the amount of solid waste disposal within its borders. This is a perfectly legitimate objective, but it cannot be pursued in a discriminatory fashion. New Jersey cannot pursue its goal of having less solid waste by placing the burden of that reduction entirely on out-of-state waste producers.
A more analogous case would be if California, instead of wanting to completely eradicate the Mediterranean fruit fly, only wanted to reduce the size of its population. And pursuant to that goal, the state sought to accomplish that objective through a law that discriminated based on geographic origin -- for instance, by prohibiting the importation of fresh fruit. Even if such a measure would reduce the fruit fly population, California could not accomplish that goal by foisting the burden on fruit farmers entirely on out-of-state producers.
In short, in the quarantine cases the state's objective, though similar, was qualitatively different: complete eradication. Seen in that light, the bar at the border was effectively nondiscriminatory. Persons trying to bring diseased cattle into the state were really treated no differently than in-state residents who owned cattle that the state learned were diseased.
In the quarantine situation, the state is attempting to completely bar or eradicate some noxious agent from within its borders: hoof and mouth disease, the Mediterranean fruit fly, or whatever. To eradicate this menace, the state takes a few complementary steps. First, it takes action to destroy its existence within the state's borders. Second, it bars anything from coming into the state that might contain the agent. (This second step, of course, is the quarantine that has been upheld on dormant Commerce Clause challenge.) The quarantine is constitutional because, when seen in context, it is part of a nondiscriminatory effort to completely eradicate or eliminate the destructive agent from within the state's borders. (Alternatively, you could say the state has no non-discriminatory alternatives to accomplish this aspect of its objective.)
Contrast that with how New Jersey approached the problem of solid waste. It did not think that the existence of solid waste per se within its borders was a public health problem. Nor did it think that the disposal of solid waste within its borders was a public health problem. Instead, it wanted to reduce the amount of solid waste disposal within its borders. This is a perfectly legitimate objective, but it cannot be pursued in a discriminatory fashion. New Jersey cannot pursue its goal of having less solid waste by placing the burden of that reduction entirely on out-of-state waste producers.
A more analogous case would be if California, instead of wanting to completely eradicate the Mediterranean fruit fly, only wanted to reduce the size of its population. And pursuant to that goal, the state sought to accomplish that objective through a law that discriminated based on geographic origin -- for instance, by prohibiting the importation of fresh fruit. Even if such a measure would reduce the fruit fly population, California could not accomplish that goal by foisting the burden on fruit farmers entirely on out-of-state producers.
In short, in the quarantine cases the state's objective, though similar, was qualitatively different: complete eradication. Seen in that light, the bar at the border was effectively nondiscriminatory. Persons trying to bring diseased cattle into the state were really treated no differently than in-state residents who owned cattle that the state learned were diseased.
More on the doctrinal framework under the dormant Commerce Clause
A quick clarification about the doctrinal framework for analyzing dormant Commerce Clause problems. Yesterday, a couple of you asked this question: if a state successfully demonstrates that it has no nondiscriminatory alternatives to accomplish the objectives of the law, must the state still demonstrate (under the balancing test of Pike v. Bruce Church) that the law's burden on interstate commerce is not "clearly excessive" relative to its putative benefits? The practical answer is no.
In essence, the Court has created a two-tiered scheme of judicial scrutiny for laws challenged under the dormant Commerce Clause. If the state law discriminates against interstate commerce (whether on its face, in its purpose, or in its practical effect), it is subject to the "strictest of scrutiny" and will only be constitutional if the state demonstrates that the law (a) advances legitimate (i.e., non-protectionist) interests, and (b) the state has no other, nondiscriminatory alternatives for accomplishing those goals.
If the state law does not discriminate against interstate commerce, it is subject to a much milder, more deferential standard of scrutiny: it will only be invalidated if it places burdens on interstate commerce that are "clearly excessive" relative to its putative benefits.
The Court has always conceived of these as alternative paths, with one being much stricter than the other. Thus, if a state law survives the stricter test (for discriminatory laws), then a fortiori it should follow that the law satisfies the more deferential Pike balancing test.
In essence, the Court has created a two-tiered scheme of judicial scrutiny for laws challenged under the dormant Commerce Clause. If the state law discriminates against interstate commerce (whether on its face, in its purpose, or in its practical effect), it is subject to the "strictest of scrutiny" and will only be constitutional if the state demonstrates that the law (a) advances legitimate (i.e., non-protectionist) interests, and (b) the state has no other, nondiscriminatory alternatives for accomplishing those goals.
If the state law does not discriminate against interstate commerce, it is subject to a much milder, more deferential standard of scrutiny: it will only be invalidated if it places burdens on interstate commerce that are "clearly excessive" relative to its putative benefits.
The Court has always conceived of these as alternative paths, with one being much stricter than the other. Thus, if a state law survives the stricter test (for discriminatory laws), then a fortiori it should follow that the law satisfies the more deferential Pike balancing test.
Analysis of Problem 5
A number of students have raised questions since Monday's class concerning the appropriate analysis of Problem 5. That seems a fair indication that my first presentation of the material was not so clear. So here is another effort, walking step-by-step through the basic points.
The first question you want to ask is whether the patent judges are "Officers of the United States" within the meaning of the Appointments Clause. For if they are not, the Appointments Clause is irrelevant, and there is unlikely to be any constitutional issue (absent some other sort of separation of powers problem). The standard for who constitutes an "Officer" is articulated in Freytag, among other places, and it basically provides that an officer is someone who exercises more than a trivial amount of discretion in the execution, enforcement, or application of federal law. Do the patent judges meet this standard? Almost certainly. They appear to have a decent amount of discretion, and they are applying federal law to parties in a manner that is often final.
Because the patent judges are "Officers," their appointments must conform to the prescriptions of the Appointments Clause. This means that, if they are principal (or "superior") officers, they must be appointed by the President with the advice and consent of the Senate. If they are inferior officers, they can be appointed in the same manner, or Congress can vest their appointment in the President alone, a court of law, or a head of a department.
Here, it is irrelevant whether the patent judges would be considered principal or inferior officers, as their appointment by the Director of the PTO does not fit within ANY of the permissible means for the appointment of officers of the United States. Clearly, the patent judges have not been appointed by the President alone or with the advice and consent of the Senate. The Director of the PTO is not a "court of law." (The Director does sit on the Board of Patent Appeals and Interferences, but that is only one of his responsibilities. His official position is an an undersecretary in the Department of Commerce, an executive department. Thus, although the Director might exercise some adjudicative responsibilities, his position is quite different from that of the Chief Judge of the Tax Court at issue in Freytag.) Finally, the PTO Director cannot be the head of a department. He is an undersecretary of Commerce who reports to the Secretary. Assuming arguendo that the Commerce Department is a "Department" under the Appointments Clause, the Director of the PTO cannot be the head of that department, as there is someone above him who does, in fact, head the department: the Secretary of Commerce.
Thus, the appointment of the patent judges is unconstitutional. And this is why Congress amended the statute in August 2008 to provide that the patent judges shall be henceforth appointed by the Secretary of Commerce (in consultation with the Director of the PTO).
The first question you want to ask is whether the patent judges are "Officers of the United States" within the meaning of the Appointments Clause. For if they are not, the Appointments Clause is irrelevant, and there is unlikely to be any constitutional issue (absent some other sort of separation of powers problem). The standard for who constitutes an "Officer" is articulated in Freytag, among other places, and it basically provides that an officer is someone who exercises more than a trivial amount of discretion in the execution, enforcement, or application of federal law. Do the patent judges meet this standard? Almost certainly. They appear to have a decent amount of discretion, and they are applying federal law to parties in a manner that is often final.
Because the patent judges are "Officers," their appointments must conform to the prescriptions of the Appointments Clause. This means that, if they are principal (or "superior") officers, they must be appointed by the President with the advice and consent of the Senate. If they are inferior officers, they can be appointed in the same manner, or Congress can vest their appointment in the President alone, a court of law, or a head of a department.
Here, it is irrelevant whether the patent judges would be considered principal or inferior officers, as their appointment by the Director of the PTO does not fit within ANY of the permissible means for the appointment of officers of the United States. Clearly, the patent judges have not been appointed by the President alone or with the advice and consent of the Senate. The Director of the PTO is not a "court of law." (The Director does sit on the Board of Patent Appeals and Interferences, but that is only one of his responsibilities. His official position is an an undersecretary in the Department of Commerce, an executive department. Thus, although the Director might exercise some adjudicative responsibilities, his position is quite different from that of the Chief Judge of the Tax Court at issue in Freytag.) Finally, the PTO Director cannot be the head of a department. He is an undersecretary of Commerce who reports to the Secretary. Assuming arguendo that the Commerce Department is a "Department" under the Appointments Clause, the Director of the PTO cannot be the head of that department, as there is someone above him who does, in fact, head the department: the Secretary of Commerce.
Thus, the appointment of the patent judges is unconstitutional. And this is why Congress amended the statute in August 2008 to provide that the patent judges shall be henceforth appointed by the Secretary of Commerce (in consultation with the Director of the PTO).
Tuesday, March 17, 2009
Obama's first judicial nominee
President Barack Obama is said to have selected his first judicial nominee, one to fill a vacancy on the United States Court of Appeals for the Seventh Circuit. He is current United States District Court Judge David Hamilton of Indiana. Hamilton is reportedly a very moderate Democrat, and his nomination has the support of both Indiana senators (Evan Bayh, a Democrat, and Richard Lugar, a Republican).
The announcement of Hamilton as the administration's first judicial nominee is being seen as an attempt by the President to dampen the recent partisan and ideological rancor over judicial nominees. Also noteworthy is that President Obama has apparently reinstated the role of the American Bar Association in pre-screening judicial nominees before their nominations become public. This had been the practice for roughly 50 years before the Bush administration discarded it in the spring of 2001. You can find the New York Times story on the nomination of Judge Hamilton here.
The announcement of Hamilton as the administration's first judicial nominee is being seen as an attempt by the President to dampen the recent partisan and ideological rancor over judicial nominees. Also noteworthy is that President Obama has apparently reinstated the role of the American Bar Association in pre-screening judicial nominees before their nominations become public. This had been the practice for roughly 50 years before the Bush administration discarded it in the spring of 2001. You can find the New York Times story on the nomination of Judge Hamilton here.
Thursday, March 12, 2009
President Obama's first signing statement
As if on cue for our class, the President yesterday issued his first signing statement in signing the omnibus budget bill (for fiscal year 2009) into law. In doing so, he declared that several provisions of the bill were unconstitutional intrusions on his presidential authority, and that he would decline to enforce them.
The President's constitutional objections varied (as might be expected given the sprawling nature of the bill). One provision, which dictates that no federal funds can be spent on NATO peacekeeping missions where U.S. troops are placed under the command of a foreign commander, President Obama declared interfered with his powers as commander in chief and unconstitutionally constrained his authority in diplomatic negotiations. Other provisions, which stated that money could not be spent or reallocated without the consent of congressional committees, effectively amounted to legislative vetoes. The President called these "impermissible forms of legislative aggrandizement."
You can find President Obama's signing statement here. And you can find an article from this morning's New York Times on the signing statement here.
The President's constitutional objections varied (as might be expected given the sprawling nature of the bill). One provision, which dictates that no federal funds can be spent on NATO peacekeeping missions where U.S. troops are placed under the command of a foreign commander, President Obama declared interfered with his powers as commander in chief and unconstitutionally constrained his authority in diplomatic negotiations. Other provisions, which stated that money could not be spent or reallocated without the consent of congressional committees, effectively amounted to legislative vetoes. The President called these "impermissible forms of legislative aggrandizement."
You can find President Obama's signing statement here. And you can find an article from this morning's New York Times on the signing statement here.
Delegating the "lawmaking" power
One of you asked a terrific question after yesterday's class: If Article I assigns the legislative power to Congress (and to Congress alone), how can Congress delegate any of its legislative authority to administrative agencies (or anyone else) without violating the Constitution? The answer, I think, lies in distinguishing lawmaking in its technical, formal sense from "lawmaking" in a more practical, on-the-ground sense.
No doubt, only Congress has the formal constitutional authority to enact federal laws. At the same time, every time a federal law is implemented, some policymaking discretionary judgment is at play. Consider a very simple example (involving a state law, but the point is the same). Suppose a law prohibits anyone from driving an automobile "hazardously" or "recklessly" in a manner that "endangers public safety." A police officer sees a driver changing lanes continuously to move more quickly through traffic, often nearly clipping other cars. Does this conduct fall within the statute? Maybe. The police officer -- the person executing the law -- will have to make a discretionary judgment. And this judgment is effectively a policy judgment (even if not so intended by the officer). The same is true, of course, when the EPA establishes a standard of parts per million of soot for what limit is "requisite to protect the public health."
Indeed, virtually every act of law implementation, enforcement, or administration involves some judgment. And those judgments effectively make policy. They determine, in a very real sense, what the law means and how it will effectively govern human conduct. Do these discretionary judgments constitute "lawmaking"? Not in a technical sense; they are only permissible to the extent that they are authorized by the relevant statute. In promulgating its standard for soot, for instance, the EPA had to justify and explain its judgment according to 109(b)(1). It had to be a plausible implementation of the statute. Still, you can see why many people believe that these sorts of judgments amount to lawmaking in a practical sense.
This is essentially the difference between Justices Scalia and Stevens in Whitman. They are no different in their practical analyses of the legal issue: section 109(b)(1) of the Clean Air Act, at least interpreted to mean "sufficient, but not more than necessary," provides an "intelligible principle" to the EPA and thus is constitutional. But they differ on the semantic question of whether this is a delegation of discretion in enforcement (Scalia) or a delegation of lawmaking power (Stevens).
No doubt, only Congress has the formal constitutional authority to enact federal laws. At the same time, every time a federal law is implemented, some policymaking discretionary judgment is at play. Consider a very simple example (involving a state law, but the point is the same). Suppose a law prohibits anyone from driving an automobile "hazardously" or "recklessly" in a manner that "endangers public safety." A police officer sees a driver changing lanes continuously to move more quickly through traffic, often nearly clipping other cars. Does this conduct fall within the statute? Maybe. The police officer -- the person executing the law -- will have to make a discretionary judgment. And this judgment is effectively a policy judgment (even if not so intended by the officer). The same is true, of course, when the EPA establishes a standard of parts per million of soot for what limit is "requisite to protect the public health."
Indeed, virtually every act of law implementation, enforcement, or administration involves some judgment. And those judgments effectively make policy. They determine, in a very real sense, what the law means and how it will effectively govern human conduct. Do these discretionary judgments constitute "lawmaking"? Not in a technical sense; they are only permissible to the extent that they are authorized by the relevant statute. In promulgating its standard for soot, for instance, the EPA had to justify and explain its judgment according to 109(b)(1). It had to be a plausible implementation of the statute. Still, you can see why many people believe that these sorts of judgments amount to lawmaking in a practical sense.
This is essentially the difference between Justices Scalia and Stevens in Whitman. They are no different in their practical analyses of the legal issue: section 109(b)(1) of the Clean Air Act, at least interpreted to mean "sufficient, but not more than necessary," provides an "intelligible principle" to the EPA and thus is constitutional. But they differ on the semantic question of whether this is a delegation of discretion in enforcement (Scalia) or a delegation of lawmaking power (Stevens).
Friday, March 6, 2009
Some questions on standing
I just received a few questions concerning the doctrine of standing. Here are my efforts at a few answers.
QUESTION: Regarding mootness, for example in Los Angeles v. Lyons, if I remember correctly, an injunction could not be granted because the case would become moot and there was little chance of Lyons being placed in a chokehold again. Why can't the plaintiff just always sue for compensatory damages then to avoid having his case declared moot?
ANSWER: Actually, mootness was not a problem in Lyons. Rather, the problem was standing, and specifically it was redressability. The Court held that the injunction would not redress the plaintiff's harm because, as you point out, he could not show that the injunction would do anything to redress his injury. (Factually, he could not show that he was likely to be subjected to another chokehold.) Mootness technically refers to circumstances where standing existed at the beginning of the lawsuit but went away at some point thereafter, typically because the plaintiff no longers had an injury or the relief requested could no longer redress the injury. Lyons does not fit this description because the plaintiff never had standing, at any point, to pursue an injunction.
As to your broader point: couldn't the plaintiff simply avoid the problem (even if it is not a mootness problem) by seeking damages? Sure. But he cannot seek an injunction. I'm not sure this avoids the problem if what he really wants is an injunction.
QUESTION: If we read about a potential first amendment violation in the news, such as a judge erecting slabs of 10 commandments in front of the court, this seems like a generalized grievance question. But if no individual citizen can speak out about it in the courts, how do we address the issue? (legislature?) Do we have to wait for someone to sustain an injury-in-fact? Because I've always wondered why a person must present, like in Lujan the plaintiff had to have a ticket showing she would physically see the animals again, to have sustained an injury-in-fact. Why does a person have to be there physically? Can't the same injury effect be felt by person who merely hears it or knows about it through a different source (like the news)?
ANSWER: Well, I guess the candid answer is because the Court said so. As your question suggests, there is nothing in Article III that clearly defines a "case" or "controversy." The Court has held, however, that it requires the plaintiff to have an injury in fact that is actual or imminent and concrete and particularlized. Why? I guess for the reasons stated in Lujan. In essence, if merely reading in the newspaper that the government has acted unlawfully were sufficient, then all 310 million of us could sue anytime we hear about the govornment doing something we think is illegal. Aside from the possibility that this might subject virtually every governmental action to legal challenge, it would involve the judiciary in the constant monitoring of executive action. More generally, we do have a mechanism other than litigation for changing the behavior of government when it affects all of us more less equally: elections and the political process. As I understand the subtext of your question, this can seem a bit random in certain applications. Person A might be much more offended by the Ten Commandments, but Person B walks in front of them, and only Person B has Article III standing. True enough; that seems a legitimate critique of the rule. By the same token, almost all legal rules, when applied to the marginal case, produce some odd results. I'm not sure that really undermines the idea that plaintiffs must be affected by the allegedly unlawful activity in a more particular way than the public at large. Rather, it might simply go to how we determine the particularity of the injury.
QUESTION: Regarding mootness, for example in Los Angeles v. Lyons, if I remember correctly, an injunction could not be granted because the case would become moot and there was little chance of Lyons being placed in a chokehold again. Why can't the plaintiff just always sue for compensatory damages then to avoid having his case declared moot?
ANSWER: Actually, mootness was not a problem in Lyons. Rather, the problem was standing, and specifically it was redressability. The Court held that the injunction would not redress the plaintiff's harm because, as you point out, he could not show that the injunction would do anything to redress his injury. (Factually, he could not show that he was likely to be subjected to another chokehold.) Mootness technically refers to circumstances where standing existed at the beginning of the lawsuit but went away at some point thereafter, typically because the plaintiff no longers had an injury or the relief requested could no longer redress the injury. Lyons does not fit this description because the plaintiff never had standing, at any point, to pursue an injunction.
As to your broader point: couldn't the plaintiff simply avoid the problem (even if it is not a mootness problem) by seeking damages? Sure. But he cannot seek an injunction. I'm not sure this avoids the problem if what he really wants is an injunction.
QUESTION: If we read about a potential first amendment violation in the news, such as a judge erecting slabs of 10 commandments in front of the court, this seems like a generalized grievance question. But if no individual citizen can speak out about it in the courts, how do we address the issue? (legislature?) Do we have to wait for someone to sustain an injury-in-fact? Because I've always wondered why a person must present, like in Lujan the plaintiff had to have a ticket showing she would physically see the animals again, to have sustained an injury-in-fact. Why does a person have to be there physically? Can't the same injury effect be felt by person who merely hears it or knows about it through a different source (like the news)?
ANSWER: Well, I guess the candid answer is because the Court said so. As your question suggests, there is nothing in Article III that clearly defines a "case" or "controversy." The Court has held, however, that it requires the plaintiff to have an injury in fact that is actual or imminent and concrete and particularlized. Why? I guess for the reasons stated in Lujan. In essence, if merely reading in the newspaper that the government has acted unlawfully were sufficient, then all 310 million of us could sue anytime we hear about the govornment doing something we think is illegal. Aside from the possibility that this might subject virtually every governmental action to legal challenge, it would involve the judiciary in the constant monitoring of executive action. More generally, we do have a mechanism other than litigation for changing the behavior of government when it affects all of us more less equally: elections and the political process. As I understand the subtext of your question, this can seem a bit random in certain applications. Person A might be much more offended by the Ten Commandments, but Person B walks in front of them, and only Person B has Article III standing. True enough; that seems a legitimate critique of the rule. By the same token, almost all legal rules, when applied to the marginal case, produce some odd results. I'm not sure that really undermines the idea that plaintiffs must be affected by the allegedly unlawful activity in a more particular way than the public at large. Rather, it might simply go to how we determine the particularity of the injury.
Tuesday, February 3, 2009
Another historical comparison to contemplate
Problem 2 poses a question involving outright presidential defiance of a binding legal order from the Chief Justice of the United States. In thinking about that problem, it might also be helpful to consider the following two examples from U.S. history, and what they say about the power of courts (and the constitutional obligations of others).
Example 1: The Supreme Court decided Brown v. Board of Education in May 1954, holding that in the field of public education, "separate is inherently unequal." Racial segregation violates the Equal Protection Clause of the Fourteenth Amendment. There were five school districts who were actual parties to Brown, and most everyone agreed that those five school districts were bound by whatever remedial order the court issued. Thousands of other school districts (outside the deep South) desegregated their schools in an orderly fashion. Tens of thousands of school districts in the deep South, however, stated that they disagreed with the Court's reading of the Constitution and refused to follow it. They stated that they would follow a judicial order directed at them specifically as parties (though this was not always honored), but they asserted their independent right to interpret the Constitution. As a result, roughly 1 percent of African-American children were attending desegregated schools in the deep South as of 1965, eleven years after Brown had been decided. History has largely judged the South's resistance to Brown as shameful and lawless.
Example 2: In 1857, the Supreme Court handed down its infamous decision in Scott v. Sanford (also known as Dred Scott). In that decision, among other things, the Court held that Congress had no authority to regulate slavery in the territories, that the Missouri Compromise was unconstitutional, that no African-American could be a citizen of the United States, and thus that Mr. Dred Scott remained a slave owned by Sanford (even though he had been taken for a time to "free" territory). Abraham Lincoln stated that, although he (and everyone else) clearly had an obligation to obey the specific judgment in Dred Scott, and thus not to challenge the idea that Mr. Scott was still owned by Mr. Sanford, he (and we) had no obligation to obey the Court's construction of constitutional meaning, or what Lincoln called Dred Scott's "political rule." For if we did--if we simply let the Supreme Court decide, once and for all time, what the Constitution means--then we have given over our government "of the people, by the people, for the people" to the courts. History has judged Lincoln's position to be courageous, and indeed he remains widely viewed as the nation's single greatest political leader.
Is the only difference the underlying moral rightness (or wrongness) of the two causes? If so, does that mean that school districts in the deep South were just as justified as Lincoln in asserting an independent authority to interpret the Constitution for themselves?
Example 1: The Supreme Court decided Brown v. Board of Education in May 1954, holding that in the field of public education, "separate is inherently unequal." Racial segregation violates the Equal Protection Clause of the Fourteenth Amendment. There were five school districts who were actual parties to Brown, and most everyone agreed that those five school districts were bound by whatever remedial order the court issued. Thousands of other school districts (outside the deep South) desegregated their schools in an orderly fashion. Tens of thousands of school districts in the deep South, however, stated that they disagreed with the Court's reading of the Constitution and refused to follow it. They stated that they would follow a judicial order directed at them specifically as parties (though this was not always honored), but they asserted their independent right to interpret the Constitution. As a result, roughly 1 percent of African-American children were attending desegregated schools in the deep South as of 1965, eleven years after Brown had been decided. History has largely judged the South's resistance to Brown as shameful and lawless.
Example 2: In 1857, the Supreme Court handed down its infamous decision in Scott v. Sanford (also known as Dred Scott). In that decision, among other things, the Court held that Congress had no authority to regulate slavery in the territories, that the Missouri Compromise was unconstitutional, that no African-American could be a citizen of the United States, and thus that Mr. Dred Scott remained a slave owned by Sanford (even though he had been taken for a time to "free" territory). Abraham Lincoln stated that, although he (and everyone else) clearly had an obligation to obey the specific judgment in Dred Scott, and thus not to challenge the idea that Mr. Scott was still owned by Mr. Sanford, he (and we) had no obligation to obey the Court's construction of constitutional meaning, or what Lincoln called Dred Scott's "political rule." For if we did--if we simply let the Supreme Court decide, once and for all time, what the Constitution means--then we have given over our government "of the people, by the people, for the people" to the courts. History has judged Lincoln's position to be courageous, and indeed he remains widely viewed as the nation's single greatest political leader.
Is the only difference the underlying moral rightness (or wrongness) of the two causes? If so, does that mean that school districts in the deep South were just as justified as Lincoln in asserting an independent authority to interpret the Constitution for themselves?
A little more on political questions
I just wanted to add a couple of thoughts to yesterday's class discussion. First, the criteria from Baker v. Carr are certainly relevant to determining whether a case presents a non-justiciable political question, but they are dramatically overinclusive, making them relatively useless as a predictive guide as to what a court will do. The first two criteria--whether there is a textual commitment of the matter to another branch, and whether the issue is not amenable to judicially manageable standards--seem to be the most important.
Second, the courts seem to use the political questions doctrine in practice as a sort of safety valve, a means to staying out of a controversy (or type of controversy) where the judiciary's involvement is apt to cause it some long-term institutional damage. This might be because courts would have real difficulty deciding cases according to rules that look at all judicial in character rather than legislative; that is, the judiciary's involvement might make the courts look especially political (or results-oriented), thus damaging its reputation. Or it might be (as Brian mentioned in class yesterday with respect to Ashwander) because the Court realizes its decision might not be obeyed, and thus would expose it as powerless.
Third, and relatedly, it makes some sense to think of the political questions doctrine--though it is a constitutional rule, derived from the "case" or "controversy" requirement of Article III--as working in practice as a sort of constitutional avoidance principle, much like those listed in Ashwander. It is a dramatic avoidance principle, as it entails the judiciary's complete withdrawal from the field, leaving resolution of the constitutional question entirely to the other branches. But it operates as means of avoidance all the same, and is invoked by the courts for largely the same reasons.
Second, the courts seem to use the political questions doctrine in practice as a sort of safety valve, a means to staying out of a controversy (or type of controversy) where the judiciary's involvement is apt to cause it some long-term institutional damage. This might be because courts would have real difficulty deciding cases according to rules that look at all judicial in character rather than legislative; that is, the judiciary's involvement might make the courts look especially political (or results-oriented), thus damaging its reputation. Or it might be (as Brian mentioned in class yesterday with respect to Ashwander) because the Court realizes its decision might not be obeyed, and thus would expose it as powerless.
Third, and relatedly, it makes some sense to think of the political questions doctrine--though it is a constitutional rule, derived from the "case" or "controversy" requirement of Article III--as working in practice as a sort of constitutional avoidance principle, much like those listed in Ashwander. It is a dramatic avoidance principle, as it entails the judiciary's complete withdrawal from the field, leaving resolution of the constitutional question entirely to the other branches. But it operates as means of avoidance all the same, and is invoked by the courts for largely the same reasons.
Friday, January 30, 2009
Marbury and McCardle
An interesting student question on the relationship between the Court's decisions in Marbury v. Madison and Ex parte McCardle.
QUESTION: In McCardle, the SCOTUS listened to the legislature because of the exceptions clause and agreed to repeal their jurisdiction of issuing writs of habeus corpus. But in Marbury, the SCOTUS decided that the Judiciary Act giving original jurisdiction for writs of mandamus is unconstitutional, implying that the Judiciary Act falls outside the exceptions clause. I don't remember the SCOTUS explicitly reasoning in Marbury why the Judiciary Act falls outside the exceptions clause. What makes something passed by Congress fall inside (or outside) the exceptions clause?
ANSWER: A couple points in response. First, the Court in Marbury did not hold the entire Judiciary Act to be unconstitutional. It merely held that the provision attempting to confer original jurisdiction on the Supreme Court in all cases where mandamus is the appropriate remedy is unconstitutional (or at least unconstitutional as applied in cases like Marbury, where the controversy does not otherwise meet the criteria for original jurisdiction under Art. III, sec. 2, clause 2).
QUESTION: In McCardle, the SCOTUS listened to the legislature because of the exceptions clause and agreed to repeal their jurisdiction of issuing writs of habeus corpus. But in Marbury, the SCOTUS decided that the Judiciary Act giving original jurisdiction for writs of mandamus is unconstitutional, implying that the Judiciary Act falls outside the exceptions clause. I don't remember the SCOTUS explicitly reasoning in Marbury why the Judiciary Act falls outside the exceptions clause. What makes something passed by Congress fall inside (or outside) the exceptions clause?
ANSWER: A couple points in response. First, the Court in Marbury did not hold the entire Judiciary Act to be unconstitutional. It merely held that the provision attempting to confer original jurisdiction on the Supreme Court in all cases where mandamus is the appropriate remedy is unconstitutional (or at least unconstitutional as applied in cases like Marbury, where the controversy does not otherwise meet the criteria for original jurisdiction under Art. III, sec. 2, clause 2).
Second, the Exceptions Clause grants Congress the authority to make "exceptions" to, and "regulations" of, the Supreme Court's appellate jurisdiction. A law purporting to give the Court original jurisdiction in a given class of cases simply could not be an exception to, or a regulation of, the Court's appellate jurisdiction.
Finally, to address your actual question, "What makes something passed by Congress fall inside (or outside) the exceptions clause?" I don't think we have a good answer. McCardle provides a very partial response, but it leaves a great deal undecided. Certainly it must plausibly be a regulation of the Court's appellate jurisdiction. But can it completely cut off any path to the Supreme Court for certain constitutional claims? Can it be done selectively, to produce the "underenforcement" of certain constitutional rights, or to undermine the practical force of certain judicial decisions? These questions remain largely unanswered.
Wednesday, January 28, 2009
On "procedural injuries" and standing
A number of you raised good questions after class about the nature of procedural injuries and how they relate to standing. Let me try to clarify things a bit (though I'm happy to answer more questions).
First, a "procedural injury" is nothing more fancy than an injury that is tied, in some way, to the government's allegedly unlawful failure to follow a certain, legally required process. One can contrast a procedural injury with a direct harm in the following way. If the government illegally dumped toxic waste on your property, that would be a direct injury. If the government illegally failed to complete the required environmental impact statement before dumping toxic waste on your property, the injury would be "procedural" in the sense that the unlawful action was the failure to follow a certain process, and not the dumping of the toxic waste per se. (Indeed, after following the lawful process, it might be that the government could still dump the waste on your property.)
Second, why is this significant? Well, the basic point is that, if the Court did not relax the standing requirements to some extent for these so-called "procedural injuries," plaintiffs might lack standing to challenge a wide range of governmental action, despite being clearly affected by it. That is, in any case in which the allegedly unlawful conduct was the failure to follow a certain process--e.g., to initiate a rulemaking to consider whether carbon dioxide is a pollutant under the Clean Air Act, or to evaluate student applications without regard to race--the plaintiff would still have to show that, had the government followed the lawful process, the result would have been different. This is often quite difficult, if not impossible. How could Barbara Grutter, for instance, really have demonstrated that she would have been admitted to the Michigan Law School had the school not considered her race in evaluating her application?
Plaintiffs would thus lack standing to challenge all sorts of unlawful actions by the government. It is therefore significant that the Court has said that this is not necessary--that plaintiffs have standing when the procedural injury (the failure to follow a legally mandated process) is connected to an underlying injury in fact (denial of a subcontract, or loss of coastline, or whatever). So long as following the lawful procedure would make it more likely that the plaintiff would obtain the ultimate benefit (or avoid the ultimate harm), then the plaintiff has an injury in fact.
Third, it is worth reiterating that a procedural injury standing alone will be insufficient for purposes of Article III. It is not enough to assert that the government simply failed to follow the law. Such an "injury" is too abstract and widely shared. Rather, the alleged procedural injury must be connected to an underlying injury in fact that is both (a) concrete and particular, and (b) actual or imminent. This is why the procedural injury in Lujan was insufficient (it was not sufficiently imminent), but it was enough in Massachusetts v. EPA (because if the EPA did initiate rulemaking proceedings, it would be more likely that it would take steps to regulate CO2, which would in turn affect the state's coastal property).
First, a "procedural injury" is nothing more fancy than an injury that is tied, in some way, to the government's allegedly unlawful failure to follow a certain, legally required process. One can contrast a procedural injury with a direct harm in the following way. If the government illegally dumped toxic waste on your property, that would be a direct injury. If the government illegally failed to complete the required environmental impact statement before dumping toxic waste on your property, the injury would be "procedural" in the sense that the unlawful action was the failure to follow a certain process, and not the dumping of the toxic waste per se. (Indeed, after following the lawful process, it might be that the government could still dump the waste on your property.)
Second, why is this significant? Well, the basic point is that, if the Court did not relax the standing requirements to some extent for these so-called "procedural injuries," plaintiffs might lack standing to challenge a wide range of governmental action, despite being clearly affected by it. That is, in any case in which the allegedly unlawful conduct was the failure to follow a certain process--e.g., to initiate a rulemaking to consider whether carbon dioxide is a pollutant under the Clean Air Act, or to evaluate student applications without regard to race--the plaintiff would still have to show that, had the government followed the lawful process, the result would have been different. This is often quite difficult, if not impossible. How could Barbara Grutter, for instance, really have demonstrated that she would have been admitted to the Michigan Law School had the school not considered her race in evaluating her application?
Plaintiffs would thus lack standing to challenge all sorts of unlawful actions by the government. It is therefore significant that the Court has said that this is not necessary--that plaintiffs have standing when the procedural injury (the failure to follow a legally mandated process) is connected to an underlying injury in fact (denial of a subcontract, or loss of coastline, or whatever). So long as following the lawful procedure would make it more likely that the plaintiff would obtain the ultimate benefit (or avoid the ultimate harm), then the plaintiff has an injury in fact.
Third, it is worth reiterating that a procedural injury standing alone will be insufficient for purposes of Article III. It is not enough to assert that the government simply failed to follow the law. Such an "injury" is too abstract and widely shared. Rather, the alleged procedural injury must be connected to an underlying injury in fact that is both (a) concrete and particular, and (b) actual or imminent. This is why the procedural injury in Lujan was insufficient (it was not sufficiently imminent), but it was enough in Massachusetts v. EPA (because if the EPA did initiate rulemaking proceedings, it would be more likely that it would take steps to regulate CO2, which would in turn affect the state's coastal property).
Thursday, January 22, 2009
The Obama administration takes action in Al-Marri
You may recall that, on the first day of class, we discussed the case of Al-Marri v. Spagone, a case on which the Supreme Court has granted certiorari but has yet to hear oral arguments. At issue is a very important question in the government's prosecution of the "war on terrorism" to this point: whether the President can indefinitely detain a lawful United States resident on the grounds that the detainee constitutes an "enemy combatant." The case has been litigated to this point by the Bush administration. But there is a new sheriff in town, so to speak, and there has been speculation that the federal government would shift its position. Today, President Obama announced that the government will seek a delay in the filing of its brief at the Court (currently due February 20), and he has ordered the Justice Department to re-examine its legal position. You can find the President's announcement here.
Wednesday, January 21, 2009
Constitutional crisis averted!
For those of you concerned that the bungling of "faithfully" had left our nation without a constitutionally legitimate president, please rest assured. The world is safe again for democracy!
As just reported by the New York Times, Chief Justice Roberts and President (or quasi-President, or whatever) Obama got together in the Map Room of the White House tonight and went through the whole thing again. No modifiers were misplaced, and Mr. Obama is now unquestionably the President of the United States of America.
Phew!
As just reported by the New York Times, Chief Justice Roberts and President (or quasi-President, or whatever) Obama got together in the Map Room of the White House tonight and went through the whole thing again. No modifiers were misplaced, and Mr. Obama is now unquestionably the President of the United States of America.
Phew!
Schedule for symposium on the Roberts Court
Here is an approximate schedule of the events for Friday's Law Review symposium:
9:00 Welcoming remarks
9:15 to 10:45 Panel 1: Robin Conrad, Brian Wolfman, and Sri Srinivasan (with me as the moderator).
10:45 to 12:15 Panel 2: David Franklin, Mitch Pickerill, and Tracey George as moderator.
12:15 to 1:45 Lunch
1:45 to 3:15 Panel 3: Pam Karlan, Jonathan Adler, Vik Amar, and Terri Peretti as moderator.
3:15-3:30 Break
3:30 Keynote address by Jeffrey Rosen.
Approximately 4:20 Reception
Tuesday, January 20, 2009
Some more on Marbury's (arguable) genius
I just wanted to add one last bit on Marbury, an overall sense of its political and constitutional significance. In February 1803, there was no practical way that the Supreme Court could have issued an order commanding the Jefferson administration to deliver the commission to Marbury. The order would have been ignored, exposing the Court as powerless. At the same time, a decision that simply blessed all of the Jefferson administration's actions as legal would likewise have showed the Court to be meek, willing to sacrifice its sincere views in the face of stronger political power. What Marshall crafted in his Marbury opinion is thus rather staggering in its political genious. Marshall managed, at once, (1) to condemn the Jefferson administration's actions as illegal; (2) to assert the power of the Supreme Court to declare acts of Congress, and also the President, unconstitutional; and (3) in the process, to render a judgment that technically favored the Jefferson administration, thus preventing the Republicans from having any means of formally disobeying the opinion. Marshall asserted the power of judicial review for the Court, but then used it to invalidate a statute purporting to give the Court more power (in the form of expanded jurisdiction). As Robert McCloskey wrote, "[t]he decision is a masterwork of indirection, a brilliant example of Marshall's capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking another." (The American Supreme Court (1960)). In the process, it lays the foundation for a cornerstone of our constitutional system, the means by which the judiciary shall be the ongoing guardian of our constitutional commitments. It is, in many respects, the greatest case in our constitutional history.
Tuesday, January 13, 2009
Symposium on the Roberts Court January 23
I wanted to alert everyone to an upcoming event on campus next Friday, January 23. The Santa Clara Law Review will be hosting its annual symposium, and the topic this year concerns business interests and the Roberts Court. We have a number of nationally prominent speakers coming to the event, including Jeffrey Rosen (who writes frequently for the New Republic, the Atlantic Monthly, and the New York Times Magazine) and Pam Karlan (of Stanford Law School). We will also some influential Supreme Court practitioners, including Robin Conrad (of the United States Chamber of Commerce) and Brian Wolfman (of Public Citizen). A complete list of the speakers can be found here.
I strongly encourage you to attend as much of the event as you can. Attendance is free for students, and you can register here.
I strongly encourage you to attend as much of the event as you can. Attendance is free for students, and you can register here.
Abbreviated office hours today
I'm unsure whether anyone is planning to visit today (only one day into the semester and conflicting with c-span's gavel-to-gavel coverage of the Hillary Clinton confirmation hearings), but I will only be in my office from 1:30 to 2:30 today. A meeting was called last night that I have to attend, and I need to get home a little early to close a child care gap. I apologize for any inconvenience. Thanks.
Monday, January 12, 2009
First class is posted on iTunes
A podcast of today's class is now available on iTunes. You have to search around a bit to find it. Go to iTunesU, and then search for Santa Clara School of Law. The class appears under the "Lectures and Classes" tab. I hope to post each class shortly after its conclusion over the course of the semester, but I cannot make any promises. Thanks.
Tuesday, January 6, 2009
More documents now available on ClaraNet
I have just posted a few additional course documents on the ClaraNet course site:
1. A slightly revised course syllabus (I will hand out a hard copy in Monday's class);
2. A tentative assignment schedule for the first six weeks of the semester; and
3. The first three problems (which are referenced in the assignment schedule).
By the end of the week, I should have my past exams posted as well. And the supplemental readings are already there.
All for now.
1. A slightly revised course syllabus (I will hand out a hard copy in Monday's class);
2. A tentative assignment schedule for the first six weeks of the semester; and
3. The first three problems (which are referenced in the assignment schedule).
By the end of the week, I should have my past exams posted as well. And the supplemental readings are already there.
All for now.
Monday, January 5, 2009
Welcome!
For those of you checking in for the first time, welcome. I look forward to the start of our class next Monday.
As I mentioned in my e-mail, the course syllabus is posted to the ClaraNet course page, as are the supplemental readings for the semester. In the coming days, I will also post to ClaraNet (1) the assignment schedule for the first 6 weeks of the semester, (2) some problems for class discussion, and (3) some of my past exams.
In the meantime, as I mentioned in my e-mail, please do not hesitate to contact me with any questions about the course.
Thanks, and I look forward to seeing you soon.
As I mentioned in my e-mail, the course syllabus is posted to the ClaraNet course page, as are the supplemental readings for the semester. In the coming days, I will also post to ClaraNet (1) the assignment schedule for the first 6 weeks of the semester, (2) some problems for class discussion, and (3) some of my past exams.
In the meantime, as I mentioned in my e-mail, please do not hesitate to contact me with any questions about the course.
Thanks, and I look forward to seeing you soon.
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