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Archive for the ‘Law’ Category

A recent post by Gerard Magliocca at Concurring Opinions brought to mind an interesting aspect of the arguments of counsel leading up to the Supreme Court’s landmark decision in Cohens v. Virginia (1821). Magliocca’s post,”Titles of Nobility Awarded by States,” considers whether Nebraska’s designation of him as an Admiral in Nebraska’s Navy violates the constitutional prohibition in Article I, Section 10, cl. 1 that “No State shall . . . grant any title of nobility.” Interesting question!

Magliocca did link his analysis to any case law deciding challenges to various titles of nobility. Maybe there are none. I have not run a comprehensive search for them, but I’m not aware of any such cases. If there are any, I wonder how they deal with the justiciability problem mentioned in Philip Barbour’s argument for Virginia in Cohens v. Virginia.

Barbour invoked the prohibition on state grants of titles of nobility (which corresponds to a similar prohibition placed on the federal government) in a portion of his argument explaining that there are some questions that may arise under the Constitution but never give rise to a justiciable case:

[T]here are questions arising, or which might arise under the Constitution, which the forms of the Constitution do not submit to judicial cognizance. Suppose, for example, a State were to grant a title of nobility, how could that be brought before a judicial tribunal, so as to render any effectual judgment? If it were an office of profit, it might, perhaps, be said, an information in the nature of a quo warranto would lie; but I ask whether that would lie, in the case which I have stated, or whether an effectual judgment could be rendered? It is a title, a name which would still remain, after your judgment had denounced it as unconstitutional. Where a quo warranto lies, in relation to an office, the judgment of ouster is followed by practical and effectual consequences.

It may be anachronistic to use the label of “non-justiciable” to describe Barbour’s argument, but that is probably the best translation into our way of framing these issues now. Barbour seems to be saying that the closest writ–quo warranto–would not lie. No writ, no remedy; therefore no case. We might put it in different terms, if only because standing doctrine so dominates our way of thinking about justiciability. We might say that the challenger (whoever that might be) would lack standing because the injury could not be remedied.  No “effectual judgment” could be rendered, in Barbour’s words, because “[i]t is a title, a name which would still remain, after [the court’s] judgment had denounced it as unconstitutional.”

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SCOTUSBlog is running a series of video interviews with the ACLU’s Steven Shapiro. Part 4, posted this morning, is on amicus curiae briefs. As Mr. Shapiro undoubtedly knows, one of the most important assets that an organization like the ACLU has in advocating in particular issue areas is credibility. Unfortunately, the ACLU lost a lot of credibility this past Term because of its amicus curiae brief in support of neither party in McCullen v. Coakley. Were such a question appropriate in the context of these videos (and it is not, I think), it would have been interesting to ask Mr. Shapiro whether he regrets filing this brief.

Mr. Shapiro was counsel of record on what has to be one of the least speech-protective briefs ever filed by the ACLU in the Supreme Court of the United States. The longest portion of this brief’s defense of the facial constitutionality of Massachusetts’ public sidewalk speech restrictions argues that the law is a narrowly tailored time, place, and manner restriction. See Section I.B. The ACLU did not pick up a single vote for this position on the facial constitutionality of the Massachusetts law–not from Justice Ginsburg, nor Justice Breyer, nor Justice Sotomayor, nor Justice Kagan, nor the Chief Justice. Indeed, the Court held unanimously that the law was facially unconstitutional.

The ACLU’s McCullen brief did leave open the possibility that the Massachusetts statute could be invalid on an as-applied basis. But this portion of the brief probably would have been taken by the Justices and their clerks as a half-hearted attempt to save face rather than a serious attempt to protect freedom of speech. If this were not apparent from the Table of Contents alone, readers might have been tipped off by footnote 5, which explains the how the ACLU’s position “evolved over time.”

McCullen now sets the standard for serious narrow-tailoring scrutiny of content-neutral speech restrictions. This unanimous decision is likely to protect significant amounts of speech that otherwise would not have been protected without it. And the ACLU was on the wrong side.

There once was a time when the ACLU defended the First Amendment even when doing so conflicted with other (politically, not classically) liberal goals. See, for example, the ACLU’s brief (with Mr. Shapiro as counsel of record) in Hill v. Colorado. But the McCullen brief suggests that those days are over.

Not all evolution is progress.

Shame on the ACLU for abandoning free speech principles in McCullen v. Coakley.

(cross-posted at Mirror of Justice)

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One feature of speculation about how the Supreme Court might rule on the challenge to the ACA subsidies is reference to the Court’s narrow upholding of the individual mandate against constitutional challenge in NFIB v. Sebelius. I’ve heard some conservatives wondering, to put it bluntly, whether the Chief Justice will fold again. This kind of framing, I think, misunderstands the nature of the Chief Justice’s decision in NFIB v. Sebelius and ignores two key differences between that case and the ACA subsidies cases.

I accept the press reports that the Chief Justice changed his vote in the individual mandate cases. But I do not think it in his judicial character to have buckled somehow. The stakes of the case may have led to some re-examination, but I think the Chief Justice became persuaded of the legal merits of the arguments that he ultimately set forth in his opinion. I suppose we’ll never know. So, on to the next issue …

Tom Goldstein argues that “a major lesson to be learned from the Court’s previous decision holding that the ACA is constitutional is that a majority of the Justices do not want to determine the fate of a hugely important social issue that has been debated in this country for decades.” At some level, it blinkers reality to say that consequences don’t matter to judges. But they are less consequential for many. And there are at least two very important differences between the individual mandate challenge and the ACA subsidies challenge that should factor into assessment of the Chief Justice’s likely position. First, a ruling for the individual mandate challengers required the development of constitutional doctrine in a way that a ruling for the ACA subsidies challengers would not. The political branches have long been on fair notice that text of enacted law controls, whereas they may have been lulled into complacency by the Court’s own latitudinarian constructions of the scope of congressional authority under Article I over time. Second, there is no statutory inseverability issue in the ACA subsidies challenge. The decision in NFIB v. Sebelius was made under the shadow of potential statutory inseverability, such that a newly formulated limitation on congressional power could be used to take down the entire ACA in one judicial ruling. While the practical effects of invalidating the IRS regulation in the ACA subsidies could be severe, the legal ruling would itself be much narrower by comparison.

These two differences may partially explain why the Chief Justice might size up the ACA subsidies challenge differently from the individual mandate challenge from a judicial and institutional point of view.

Another piece of the explanation may be his recognition that the Court’s authority stems from its identification with the law, and that identification is easier for people to make when there is relatively clear statutory language in contrast with murky constitutional doctrine that has been treated in accordion-like fashion over time.

Nor can one discount the possibility that, over time, Chief Justice Roberts has come to view President Obama’s commitment the rule of law in a manner similar to how Chief Justice Marshall understood President Jefferson’s commitment to the same.

For all these reasons, I hesitate to draw too close a connection between how Chief Justice Roberts approached the individual mandate challenge and how he might approach the ACA subsidies challenge.

From an interpretive point of view, more relevant data points would be his opinions and votes on similar questions of statutory interpretation. I have been surprised, for example, not to have seen any mention of Bond v. United States in any of the opinions upholding the regulation or in any commentary thus far on the interpretive issues raised. Bond was a case in which Chief Justice Roberts found statutory ambiguity to arise from the improbably broad reach of a statutory definition, the consequences of the interpretation, and the apparent lack of any need to take the broad definition in its full breadth given the background of the law. As Justice Scalia put it in his dissent: “Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous!” In essence, that is at the core of what some critics of Halbig are arguing. And one can see the outlines of a similar argument from the improbably narrow formula for calculating credits, the consequences of adopting this interpretation, and so on. My own view is that this argument should be a loser given the relevant statutory language. But it’s the kind of argument that those who disagree with Halbig need to be making if they are interested in the Chief Justice’s vote.

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Three-judge panels of two federal courts of appeals today issued directly conflicting rulings on a key IRS regulation implementing the Affordable Care Act. This regulation authorized subsidies for those purchasing insurance from government exchanges, regardless of whether those exchanges were established by the federal government (as in most states) or by an individual state. If this regulation is invalid and subsidies are therefore not available on exchanges established by the federal government, then one leg of the government’s three-legged stool in the Affordable Care Act is removed in more than half the states in the country.

In Halbig v. Burwell, a split panel of the D.C. Circuit held the regulation invalid. Shortly thereafter, the Fourth Circuit issued a directly contrary decision in King v. Burwell, upholding the IRS regulation. Most news coverage thus far has focused on the D.C. Circuit’s decision. There may be a few reasons for this: (1) lots of policy journalists in D.C.; (2) the D.C. decision came first; and (3) the D.C. decision would alter the status quo significantly, while the Fourth Circuit decision would maintain the status quo.

The Fourth Circuit decision is important as well, though less for what it holds than for how its upholding of the regulation might actually benefit the challengers who lost the panel decision. In short, the Fourth Circuit’s decision may speed up the timing of Supreme Court review of this issue. Here’s why: En banc review would probably be favorable for the government in both courts. This means it is likely that the government will seek en banc review in the D.C. Circuit case. The decision to grant en banc review by itself would vacate the panel decision, thus eliminating the existing circuit split, at least for the time being. And if the en banc D.C. Circuit were to rule differently from today’s three-judge panel, then there would not be a circuit split with the Fourth going forward. In the absence of the Fourth Circuit decision, then, it would take a while before the Supreme Court takes a case raising this issue, and the Court might never grant if there is no split. But because the en banc Fourth Circuit is likely favorable for the government, the plaintiffs in that case are likely to bypass en banc review and head straight to the Supreme Court. The Court has discretion whether to grant certiorari, of course, but a circuit split on such an important part of a massive regulatory scheme is the sort of thing that the Supreme Court should hear. Having a final decision in favor of the government therefore is of some help to the challengers because it enables them to go to the Supreme Court more quickly.

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This is the time of the law school semester when law students confront sometimes fanciful hypotheticals on final examinations. For various reasons, I’ve already told my (mostly) first-year students in Constitutional Law that I will not be giving them an essay question on Section 5 of the Fourteenth Amendment. But in thinking about the constitutionality of state-law marriage definitions that require a man and a woman for civil marriage, I came up with a question about a hypothetical piece of legislation that seems like it could fit on a final examination this year. Since I won’t be putting it on an examination, I thought I’d post it and see if readers have analyses that they would like to share, whether on another blog or in the comments here.

Suppose that Congress passes and President Obama signs new federal legislation, The Defense of Marriage Equality Act (“DOMEA”). The operative provisions of DOMEA state: “(1) No state shall deny civil marriage to any person because he or she has chosen to marry a person of the same sex. (2) No state shall refuse to recognize a civil marriage that was performed in another state, and remains valid in the state of celebration, on the ground that the married couple are persons of the same sex.”

Congress’s premise in passing DOMEA is that federal legislation is needed to enforce the Fourteenth Amendment’s Due Process Clause, which protects the right to marry for all people, and the Fourteenth Amendment’s Equal Protection Clause, which prohibits classifications that burden fundamental rights and that discriminate against disfavored classes. A “Findings” section of DOMEA states, among other things, “Congress finds that state laws that limit marriage to one man and one woman violate the Fourteenth Amendment because such laws deny gays and lesbians the constitutionally protected right to marry the partner of their choosing.” This congressional finding is based on the Supreme Court’s decisions in Windsor, Lawrence, and Romer, as well as the string of post-Windsor lower-court decisions that have (thus far unanimously) held opposite-sex-only marriage definitions unconstitutional under the Fourteenth Amendment.

Does Congress have authority under Section 5 of the Fourteenth Amendment to enact DOMEA? Provide a brief analysis setting forth the strongest arguments and counter-arguments in support of your conclusion.

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Over at The  Volokh Conspiracy, Nick Rosenkranz has a post titled “James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail.” The post consists of an extended quotation from Federalist No. 58 that Rosenkranz interprets as predicting that the House of Representatives “can and should prevail” in a battle of wills over their exercise of the power of the purse.

Rosenkranz’s post brings to mind an early episode in our nation’s history in which the House sought to use its appropriations authority to block “the law of the land” from taking effect: the fight over appropriations to implement the vastly unpopular Jay Treaty. The short of it is that Madison, in the House, lost. But the short version leaves much out (and the circumstances of that showdown are different from present circumstances in some obvious ways, of course). For some primary sources on the debate over the Jay Treaty, see the relevant portion of the collection edited by Lance Banning, available at The Online Library of Liberty: Liberty and Order the First American Party Struggle.

Of potential interest to students of federal judicial power, in The Supreme Court in the Early Republic, William Casto describes a nine-page opinion letter about the legal issues raised by the House’s opposition that was authored by Chief Justice Oliver Ellsworth as a type of advisory opinion:

Almost as soon as Ellsworth took his oath as Chief Justice, he–like Chief Justices Jay and Rutledge before him–became entangled in a political facet of Jay’s treaty. The Senate had consented to the Treaty, but it could not be implemented without an appropriate of funds, and this technicality gave its opponents one last chance to defeat it. The Republican leaders in the House maintained that they had the right to judge the wisdom of the Treaty and to refuse to appropriate the necessary funds if they deemed it unacceptable. To assist the House in its consideration, Congressman Edward Livingston of New York called for the President to provide copies of all papers relevant to the Treaty’s negotiation.

Five days after Ellsworth became Chief Justice, he wrote an extensive advisory opinion on these developments. Although the opinion is in the form of a nine-page letter to Senator Jonathan Trumbull of Connecticut, it wound up in George Washington’s files docketed under the subject “treaty making power.” Whether Ellsworth wrote the letter in response to an indirect request from the President is not known, but the Chief Justice clearly intended his letter to be a formal legal opinion. His basic analysis was that, under the Constitution, the treaty-making power is vested solely in the President and the Senate. Once a treaty was approved by the Senate and ratified by the President, it became a “law of the land” binding upon the House. The fact that the Treaty coincidentally required an appropriation to carry it into effect was “an accidental circumstance [that did] not give the house any more right to examine the expediency of the Treaty, or control its operation, than they would have without this circumstance.” The House was therefore bound to appropriate the funds “as it is to appropriate for the President’s salary, or that of the Judges.” The President subsequently refused to provide the requested papers, and the Federalists in Congress mustered barely enough votes to appropriate the funds necessary to implement the Treaty.

[Casto at 97-98]

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Earlier this year, the editors of the Harvard Law Review added a gender component to the journal’s affirmative action policy. The Harvard Crimson headline is “Numbers of Female Harvard Law Review Editors Nearly Doubled in First Gender-Based Affirmative Action Cycle.” But as the story accurately notes, “it is unclear whether the increase in female editors is due to the new affirmative action policy or if more women were selected by chance using the gender-blind process.” And the law review’s President “declined to comment on whether the shift in the admissions process was a success.”

The current President’s refusal to comment is a fitting bookend to that editor’s comment on the new policy as then-incoming President: “It’s too soon to tell what impact the policy will have.” The curious lack of critical curiosity or even comment about how the policy would likely function or is functioning is a consequence of a deliberate insulation from knowledge of effects that has been built into the system itself. And until the law review’s policies provide for some sort of oversight into how the “discretionary committee” that implements the journal’s affirmative action “policies,” it appears that nobody will know how they are working or whether they are needed (putting aside for a moment the difficulty with defining “need” in this context). As I wrote when HLR added gender to its affirmative action “policy”, the existing policies appear designed to create a black box for the accomplishment of undefined mushy quotas:

I was a member of the discretionary committee for Volume 115. Our direction was just to take the various factors into account and then exercise our discretion. That is it. There were some very easy calls, such as applicants who missed the cut-off by a hair’s breadth mathematically. But there was no guidance at all for the tougher calls. The “policy” was nothing more than a list of factors.

At least as of Volume 115, the only people who knew what role various factors played in membership decisions for any given year were the members of that year’s discretionary committee (and even they did not know the identities of individuals selected through that process because everything was done through an anonymous numbering system). As far as the rest of the review was concerned, the committee was a black-box mechanism whose only inputs were a small number of editors and a list of factors for them to “consider” in some unspecified way. The trade-offs made each year were unknown, even to the incoming members of the discretionary committee.  If that structure remains the same, then there is no way to track what effect the existing affirmative action policies are having. And if there is no way to track that, there is no way to know what effect a change to the policies would have. Nor is there any way to know when the policies should end.

The Crimson quotes the incoming HLR President as saying that “it’s too soon to tell what impact the policy will have.” Unless the law review has some mechanism in place to provide accountability for how the discretionary committee exercises its discretion, however, the passage of time will not reveal too much about the effect of the policy. It’s a safe prediction that the number of female editors will drift upward and that some kind of mushy quota will result. But nobody will know what trade-offs the discretionary committee is making with the discretion it is charged with exercising. [emphasis added 10/9/13] That is why I fear the editors do not know what “policy” they are adopting in adding gender to the discretionary committee’s list of factors to consider.

(Note: To repeat something mentioned in my earlier comment on this process, I welcome “factual corrections about the nature of the policies now in effect. In particular, if there is some kind of assessment or accountability mechanism in place, I would love to hear about it.”)

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