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:: Wednesday, November 30, 2011 ::

Today my Con Law II class and I were honored with a class visit from Prof. Hugh Hewitt, Chapman University School of Law, and Blogger Extraordinaire. What a way to finish out (1) our discussion of modern substantive due process, and (2) the classroom part of the course!

:: David Wagner 12:36 PM [+] ::
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:: Tuesday, November 15, 2011 ::

The American Center for Law and Justice was among the amici curiae petitioning the Court to grant cert on both issues, the individual mandate and severability.

:: David Wagner 3:32 PM [+] ::
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Obamacare cert grant

Lyle Denniston's brief yet thorough summary is here. Of particular note, with comments as necessary:

On what issues did the Court not grant cert? " It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members, and by Liberty University and two of its employees."

And what did it grant cert on?

* Granted, the issue of “severability” of the insurance mandate from the other provisions of the law, if the mandate is nullified (the only question in National Federation of Independent Business v. Sebelius [docket 11-393] and question 3 in Florida, et al., v. Department of Health & Human Services [11-400] [11th Cir. - holding individual mandate unconstitutional, but severable -dw] ), cases consolidated for 90 minutes of oral argument.

* Granted, the constitutionality of the insurance mandate (question 1 in the government case, Department of Health & Human Services v. Florida, et al.), two hours of oral argument.

* Parties directed to brief and argue whether the lawsuit brought by the states challenging the insurance mandate is barred by the Anti-Injunction Act (an added question in the government case, 11-398), one hour of oral argument. (That order appeared to be limited to reviewing whether that Act only bars states from challenging the mandate; the question of whether that Act bars private entities from challenging the mandate was raised in the Liberty University case, and the Court did not grant that petition.) (UPDATE: It appears, on a closer reading of the grants, that the Anti-Injunction Act will be explored as a limitation on challenges to the mandate by either private individuals or states.)

* Granted, the constitutionality of the Medicaid expansion (question 1 in the Florida, et al., v. Department of Health and Human Services case, 11-400); one hour of oral argument.

:: David Wagner 3:08 PM [+] ::
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:: Monday, October 10, 2011 ::

Justice Stevens abhors a system in which “majorities or powerful interest groups always get their way,” post [Stevens dissent], at 56, but replaces it with a system in which unelected and lifetenured judges always get their way. That such usurpation is effected unabashedly, see post, at 53—with “the judge’s cards . . . laid on the table,” ibid.—makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is Justice Stevens’ approach, not the Court’s, that puts democracy in peril.

Justice Scalia, concurring in McDonald v. Chicago

:: David Wagner 7:02 PM [+] ::
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:: Wednesday, October 05, 2011 ::

Berg et al. on Hosanna-Tabor ministerial exception case (to be heard today)

:: David Wagner 7:49 AM [+] ::
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:: Tuesday, September 27, 2011 ::

NC Governor calls for suspending the Constitution -- you know, just a little bit

-- or --

Perdue se trouve perdue

Her words, as reported on the blog of the Raleigh News-Observer:

You have to have more ability from Congress, I think, to work together and to get over the partisan bickering and focus on fixing things. I think we ought to suspend, perhaps, elections for Congress for two years and just tell them we won't hold it against them, whatever decisions they make, to just let them help this country recover. I really hope that someone can agree with me on that. The one good thing about Raleigh is that for so many years we worked across party lines. It's a little bit more contentious now but it's not impossible to try to do what's right in this state. You want people who don't worry about the next election.

Her office's explanation? Literally (from spokesman Chris Mackey, "in a statement," so presumably not off the cuff):

Come on, Gov. Perdue was obviously using hyperbole to highlight what we can all agree is a serious problem: Washington politicians who focus on their own election instead of what’s best for the people they serve.

Hmm. "I really hope that someone can agree with me on that." Doesn't look like hyperbole on the screen, Chris. Had to be there, maybe.

If Gov. Perdue were a Republican, everyone's Facebook and Twitter feeds would be filling up about now with news of the constitutional crisis we are now in. CNN and MSNBC would be on the lookout for tanks on the move. As it is, the News-Observer sure enough wants us to know that "Republicans sure are taking it seriously as they look to score political points."

Pretty piss-poorly, too. As the linked post has it, "GOP spokesman" Rob Lockwood critiques Perdue's remarks solely in terms of "accountability" and the "right to vote." Well yes, elections provide accountability -- but those decisions were made during the drafting and ratifying of the Constitution. The question of annual versus biennial Houses was particularly discussed. Apart from a constitutional amendment (not presently before us), it's really not up to us now to debate, pro or con, except of course in a purely academic fashion, whether we have the correct amount of election-driven accountability, or too little, or too much. Our guarantee of accountabilty comes from adhering to what the Constitution says (unless we're trying to amend it).

As for the right to vote, you'd be amazed how small a role it plays in the Constitution. The 15th Amendment provides that it shall be administered on a race-neutral basis; the 19th does the same re sex, and the 26th does the same re age. But those are rules limiting government's right to limit the right to vote; all other elements of the "right to vote" have been invented by the Supreme Court, reading them into the 14th Am -- and leading to, among other results, Bush v. Gore.

The real way the Constitution guarantees accountability in Congress is not so much by the "right to vote" per se, but by specifying that, whatever exactly the suffrage rules may be, the House shall be subject to election every two years. Art. I. Sec. 2. clause 1. (And the Senate every six, Art. I Sec. 3 clause 1, though of course the voting constituency for the Senate was radically changed by the 17th Am.)

The fact of biennial House elections seems to be (even) more important than who votes in them. And Gov. Perdue's remarks are a threat, not so much to any individual's right to vote (b/c surely she'd be glad for everyone to vote whenever she decided to allow an election), as to the polity's right as a whole to biennial House elections. And that right is textually guaranteed by the Constitution.

Next up is Republican House challenger Paul Coble, who says Perdue is only saying that because she fears her party is going to lose seats. That may be true, but, if it were Coble's party that was likely to lose seats, would that make setting aside the constitutional requirement of biennial House elections any better?

There's a right answer to that, and it's No.

What's shocking about what Gov. Perdue said is not that she's seeking partisan advantage for her party (why shouldn't she?); nor that her proposal would interfere with accountability or the right to vote, though of course it would do both. What's shocking about it is that it directly and clearly proposes ignoring the Constitution.

One may grant, sadly, that there are parts of the Constitution that give rise to difficult interpretive issues, such that it is debatable whether one is ignoring them or not -- but the requirement that the House shall be "chosen every second year" (Art. I Sec. 2 clause 1) is not one of those hard-to-interpret passages. Gov. Perdue's remarks were lawless.

:: David Wagner 5:53 PM [+] ::
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:: Sunday, September 25, 2011 ::

Michael McConnell's "The Origins and Historical Understanding of Free Exercise of Religion" is a magnificently researched compendium of the early religious history of Anglo-America, and, as such, a valuable antidote to the silly oversimplifications often served up by the Court on the subject, usually in opinions by Justice Hugo Black.

But as far as achieving its principle goal, however -- what do we really have here?

* Conclusive evidence that Locke was a bitter opponent of McConnell's preferred Free Exercise theory;

* Unsupported and improbable speculation that as early as 1663 (the Rhode Island Charter) a distinction may have intelligible between laws for the preservation of public order and "other" kinds of laws;

* The suggestion that because William Penn uses the phrase "excellent laws," other laws must be non-excellent and thus ripe for religious exemptions;

* ...as if the Rhode Island Charter or William Penn's views were the Free Exercise Clause, anyway!

* Discussion of the views of Jefferson, which are perfectly irrelevant to the original understanding of the First Amendment;

* Inconclusive attempts to tease out of Madison's statements on Free Exercise a meaning that isn't hostile to individual conduct exemptions;

* Persistent refusal to recognize "of religion" as a term of limitation, whether in the federal clause itself or in the state constitutional Free Exercise clauses on which the federal one is "presumably" based; ("exercise" = "action"; yes, and "exercise of religion" = "religious action" = worship, as stated specifically in the New York version of the clause, one of those "presumably-based-ons")

* anachronistic interpretation of "the provisos," which in any event aren't in the federal version (this issue is fully hashed out between O'Connor and Scalia in City of Boerne);

* "Where the rights of others are not involved, however, the free exercise right prevails." What others? Other than the individual believer? Other than the individual defendant? Other than members of his church or sect? And what rights? "Others" have lots of rights.... What laws DON'T protect the "rights of others" in some meaningful sense? (Only the ones you don't agree with! Because of course those are the ones that don't protect the rights of others in any MEANINGFUL sense.)

* an anti-perfectionist (in the Robert George sense) interpretation of the Declaration becomes the price of Free Exercise;

* (about pp. 1467-1474) an amazing series of legislatively enacted exemptions; these of course prove nothing about McC's central thesis - indeed they tend to cut against it: the fact that legislatures grant exemptions does not prove they have to, or that courts are authorized to compel them to; and it tends to prove that constitutionally compelled exemptions are not even necessary to achieve religious-liberty goals.

* a federal Free Exercise legislative history that runs, on the whole, against his thesis (tho' all must admit that the record is shockingly thin given the gravity of the issue);

* He's right that "no structural distortions arise from assuming that, for modern purposes (after “incorporation”), the free exercise clause means the same thing for states that it has always meant for the federal government." (1485) Heavy emphasis on "structural." But this does not get around Steven D. Smith's argument that incorporating the Free Exercise Clause is as futile as incorporating the Establishment Clause because neither had a nationally agreed-upon meaning in the Founding era.

* "Prohibit" (as against "abridge"): pick your favorite subsection of the Johnson's Dictionary definition. Most of them aren't helpful to McC's thesis; no more is Webster's.

Catholics and Baptists were satisfied -- and why not? A federal government with enumerated powers to begin with (including none having to do with religion), now additionally barred from "prohibiting the free exercise of religion" -- what's not to like? That the same government is not also barred from causing incidental burdens to religion? But that assumes the conclusion: that incidental burdens on religion were seen as something that could be categorically avoided, consistent with the rule of law.

With a limited federal government, and a legal culture favorable to legislative enacted exemptions (not constitutionally required ones), of course the Catholics and Baptists were happy. They had no reason not to be.

Today we have reasons to be scared crapless (federal RFRA to one side), not because of Smith, but because of a vastly more powerful federal government, a judicial culture acclimated to seeing many of that government's functions as "compelling state interests," and a legal culture where the only enacted religious exemptions still familiar are ridiculously narrow ones (e.g. the kind that apply to churches but not to religious bookstores, religious hospitals, clergy organizations, etc.)

* "Exercise"/"conscience": McC gets the "knowledge" aspect of "conscience" but misses the aspect of applying that knowledge to action, which is crucial to "conscience." Those who used "consience" in their FE clauses could have used "knowledge" or "veracity" or "private thoughts" or even just "belief" if that was all they meant.

* "To protect everything is to protect nothing." 1493. Glad we've settled that.

* Explication of Commonwealth v. Wolf (fn. 507 and preceding text) is very dangerous. The court apparently looked into the plaintiff's religion in detail to see if the law really was a burden on him or not. McC praises this, seeing in it a harbinger of conduct exemptions to come. It is just the sort of judicial inquiry into religion that is probably a per se violation of the Establishment Clause and that in any case religious people should flee like the plague.

* The jury service cases -- admittedly few, which surprises McC but shouldn't -- show that compromises were worked out w/o putting conduct exemptions into constl law.

* p. 1512 - Maximum claim: "Exemptions were not common enough to compel the inference that the term “free exercise of religion” necessarily included an enforceable right to exemption, and there was little direct discussion of the issue. Without overstating the force of the evidence, however, it is possible to say that the modern doctrine of free exercise exemptions is more consistent with the original understanding than is a position that leads only to the facial neutrality of legislation."

* "A religious duty does not cease to be a religious duty merely because the legislature has passed a generally applicable law making compliance difficult or impossible." Who said it does?

* The Conclusion. Contrary to article, church-state distinction was richly theorized in the Middle Ages; see e.g.. Pope Gelasius; Dante's De Monarchia. Expression "separation of church and state" was not used during that time -- but neither was it used during the Reformation either, at least not as a term of praise or desiderata; see P. Hamburger, Separation of Church and State.

McC is rather more interesting and engaging about opposing an "Enlightenment" view (such as Locke's) to a radical pluralist view (his) that he calls "aggressive interpretation of the Free Exercise Clause." He's right that it's "aggressive" -- rather than accurate. He's wrong in thinking that the festival of unleashed minority religions that he hopes for can be, was, or ever will be allowed by the federal judiciary using "compelling interest" analysis. And he has proved, in spite of himself, that the Framers never required any such thing.

:: David Wagner 7:22 PM [+] ::
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:: Wednesday, September 21, 2011 ::

Smith discussion, continued from class

What follows is first and foremost for my current students in Con Law II, whose attention is being directed to it via Blackboard, but I post it here for the general public. Comments and questions may be sent to me by email; students may send comments and questions by email or on Blackboard.


I. "Parade of horribles"

In a Scalia-written opinion, when you edit out the footnotes, you edit out a lot of the doctrinal action. So here I'm restoring one of them, which requires also restoring part of the O'Connor opinion.

Prof. McConnell's edit of the O'Connor outcome-concurrence/doctrinal-dissent includes her praise of the "sensible balances" the Court has struck in the past applying the compelling state interest test to Free Exercise Cases, but leaves out her reference to the Court's "parade of horribles":

The Court's parade of horribles, ante at 888-889, not only fails as a reason for discarding the compelling interest test, it instead demonstrates just the opposite: that courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.

The edit also leaves out that parade itself (from the Court's opinion), so here it is. (Note that it includes Lukumi at the trial level, pre-maturely, but nonetheless the Court later found, with Scalia concurring, that the ordinance in that case violated FE even under Smith.)

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from [p889] compulsory military service, see, e.g., Gillette v. United States, 401 U.S. 437 (1971), to the payment of taxes, see, e.g., United States v. Lee, supra; to health and safety regulation such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695 (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 U.S. 569 (1941); to social welfare legislation such as minimum wage laws, see Susan and Tony Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), child labor laws, see Prince v. Massachusetts, 321 U.S. 158 (1944), animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942 (1949), environmental protection laws, see United States v. Little, 638 F.Supp. 337 (Mont.1986), and laws providing for equality of opportunity for the races, see, e.g., Bob Jones University v. United States, 461 U.S. 574, 603-604 (1983). The First Amendment's protection of religious liberty does not require this.

And now the main event of this part of my post: footnote 5, the Court's reply to O'Connor's "sensible balance" claim regarding this "parade":

5. ....Justice O'CONNOR mistakes the purpose of our parade: it is not to suggest that courts would necessarily permit harmful exemptions from these laws (though they might), but to suggest that courts would constantly be in the business of determining whether the "severe impact" of various laws on religious practice (to use Justice BLACKMUN's terminology) or the "constitutiona[l] significan[ce]" of the "burden on the particular plaintiffs" (to use Justice O'CONNOR's terminology) suffices to permit us to confer an exemption. It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.

Do you think Smith can be understood without that footnote, especially that last sentence?


II. Yoder

To read the book's edit of the O'Connor opinion, you'd think Wisconsin v. Yoder was a broad and lucid opinion that had controlled dozens of subsequent cases, and that it relied exclusively on the FE Clause. Actually (I've hyperlinked it for your convenience), it's a narrow opinion, so closely tied to the facts of the Old Order Amish respondents that it has been seriously doubted whether it applies to anyone else; in particular (and most dangerously) whether it applies to any religious group less insular and more socially participating than the Amish.

And actually, Yoder has had no -- zero, nada, bupkis -- progeny in the Supreme Court. Why should it? Nobody but the Amish are the Amish. Even for the Amish it didn't work outside the school setting; see U.S. v. Lee. A less authoritative Supreme Court precedent would be difficult to imagine.

Furthermore, the claim that Yoder relied entirely on FE does not survive a reading of it, as shown by footnote 1 in Smith (not in your edited version).


III. "Constitutional anomaly": match wits with Justice O'Connor

Do you understand what the Court means by individual conduct exemptions being a "constitutional anomaly"? If you do, you win the match, because Justice O'Connor plainly doesn't. She thinks the Court is saying the religious liberty itself is the "anomaly":

Although the Court suggests that the compelling interest test, as applied to generally applicable laws, would result in a "constitutional anomaly," ante at 886, the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a "constitutional nor[m]," not an "anomaly." Ibid.

If you think I'm misreading that passage, and therefore misreading O'Connor's reading of the Court, let me know and tell me why. It seems pretty clear to me. Be that as it may, the Court (again, see what you miss when you're not shown the footnotes?) explained what it means in footnote 3:

3. Justice O'CONNOR suggests that "[t]here is nothing talismanic about neutral laws of general applicability," and that all laws burdening religious practices should be subject to compelling interest scrutiny because "the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a "constitutional norm," not an "anomaly." Post at 901 (O'CONNOR, J., concurring). But this comparison with other fields supports, rather than undermines, the conclusion we draw today. Just as we subject to the most exacting scrutiny laws that make classifications based on race, see Palmore v. Sidoti, supra, or on the content of speech, see Sable Communications, supra, so too we strictly scrutinize governmental classifications based on religion, see McDaniel v. Paty, 435 U.S. 618 (1978); see also Torcaso v. Watkins, 367 U.S. 488 (1961). But we have held that race-neutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling interest analysis under the Equal Protection Clause, see Washington v. Davis, 426 U.S. 229 (1976) (police employment examination); and we have held that generally applicable laws unconcerned with regulating speech that have the effect of interfering with speech do not thereby become subject to compelling interest analysis under the First Amendment, see Citizen Publishing Co. v. United States, 394 U.S. 131, 139 (1969) (antitrust laws). Our conclusion that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest is the only approach compatible with these precedents.

McDaniel struck down a law that barred clergy from elected office; the state asserted an interest in preventing "divisiveness" and in preventing Establishment Clause violations! Torcaso struck down a state-level religious test for public office; the Court saw this as enforcing belief, not merely action, and so did not even deem the question of a state interest worth considering.

From these we see that legislation that harmfully targets religion in any specific way (even if the harm is directed at "all religions") gets either a serious c.s.i. test, the kind that means almost automatic nullification, or else a direct smackdown. But can you see why a regime of personal, roll-your-own religious (or any other kind of) exemptions from laws conceded to be otherwise valid would be an "anomaly" in any system that respects the rule of law?

You can go here (O'Connor dissent, followed by Scalia concurrence) for another exciting episode of Match Wits With Justice O'Connor! -- in which we hear Scalia call former student McConnell "the most prominent scholarly critic of Smith" before commencing surgery on his article!

:: David Wagner 10:01 AM [+] ::
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:: Tuesday, September 20, 2011 ::

Again, re Smith: Prof. McConnell wants to know why not go to historical evidence of the meaning of the Free Exercise Clause? Quite apart from the fact that his own major article disproves his understanding of that meaning, here's a hot quote from Reynolds v. U.S. about Founding-era thinking about the application of Free Exercise to polygamy, the particular action for which a Free Exercise conduct exemption was sought in that case.

:: David Wagner 6:16 PM [+] ::
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This article describes some local Free Exercise violations that really are Free Exercise violations, even under Smith; that is, they have nothing to with claims to personal religious exemptions from otherwise-valid laws, but rather with flagrantly discriminatory laws, or else with laws that, while perhaps capable of neutral and general application (say, against congestive parking), are being applied in a way that is flagrantly discriminatory against religion.

:: David Wagner 6:08 PM [+] ::
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:: Friday, September 16, 2011 ::

Justice Ginsburg: "Scalia is by biggest buddy at the opera."

:: David Wagner 6:21 PM [+] ::
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:: Monday, September 05, 2011 ::

SCForum and Ron Paul's Constitutional Problems

Although Ron Paul probably thinks harder about the Constitution than any candidate, that's only good if you don't get the answers majorly screwed up. RP commits two major screw-ups: he seems to think only the anti-Federalists count as "Framers" (they actually opposed ratification of the Const. b/c it gave us, ahem, big govt); and he thinks the Const. is the Philadelphia '87 document + Bill of Rights. His colloquy with Prof. George on the 14th Am. shows he has no clue how that Am. works and doesn't really want to get any.

The Anti-Federalists were co-Framers, but they were the losers in the ratification debate. To them we owe the Bill of Rights, but if we view the process of making the U.S. Constitution exclusively through their eyes, we will fail utterly to see what it transparently was: a last-ditch effort to save a federation that was tottering because its national government was too weak and too feckless. The need in 1787-88 was for MORE GOVERNMENT. The only question was, HOW MUCH. And that debate was won by the MORE side of that era, not the LESS side. Delight in that, or deplore it, but don't construct fantasies in which it didn't happen.

Then there's Ron's refusal to allow that the 14th Amendment says what it says, which is to give a vague but obviously large quantum of NEW power to Congress, via the combination of its 1st and 5th Sections. HOW MUCH power is a matter of opinion and legal argumentation; that a federal power augmentation occurred is a FACT, and repeating the coequal fact (not disputed) that the 9th and 10th Ams still exist doesn't change that. (In fact, by the universally accepted later-in-time rule, a later Amendment prevails over an earlier whenever there is an irreconcilable conflict; tho' of course an interpreter's first job is to reconcile the two and avoid the conflict.)

We have a lot of Republican candidates this year who talk a lot about the Constitution. I'll give Ron Paul this: he goes farther than the others in specifying what he means. And he's right that the Commerce Clause and the Necessary & Proper Clause need some re-think. But in some areas I worry not about what he doesn't know, but about what does know that ain't so.

:: David Wagner 8:37 PM [+] ::
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:: Friday, August 12, 2011 ::

Been looking at the 11th Circuit's decision striking down the individual mandate portion (not other portions) of Obamacare. It's a ponderous monster, the kind of decision that wants to double as a Harvard Law Review submission, perhaps swinging for inclusion in the next edition of the con law casebooks, the ones that will come out between now and whenever the Supreme Court renders a decision.

It explains the statute in Congressional Reseearch Service-depth, then does the same for the entire history of the Court's Commerce Clause jurisprudence. Not being dummies as to what the vote count on the Supremes will be, the 11th pays particular attention to concurrences by Justice Kennedy, even in cases, such as Comstock, where his vote was not essential to the outcome.

Showing a sort of precision of thought for which they perhaps expect to the be -- and perhaps will be -- the toast of some sectors of the great con-law cocktail part, the panel majority scoffs at clear-cut categories and simple defintions -- not only the ones the Supreme Court itself scoffed at when it adopted the "economic/nonecononic" distinction of Lopez, but at that one too! No, to the 11th Circuit, what matters is that the decision not to buy insurance is "noneconomic," but purely and simply that for Congress to reach such an activity under the Commerce Clause is unprecedented.

One may agree with the outcome -- I do -- and still wonder: how long before "precedented/unprecedented" becomes another of those outmoded distinctions on which Commerce Clause cases can no longer turn in this our modern age? I hope that eventually the Supreme Court will apply the "economic/noneconomic" reasoning of Lopez to this case -- on its way back to some even better, more wooden distinction, such as commerce/manufacture.

:: David Wagner 10:34 PM [+] ::
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:: Wednesday, July 13, 2011 ::

The McConnell Plan

Mitch, not Mike.

On the policy and politics of it, I'm impressed by today's Wall St. Journal editorial. (On the debt limit as "hostage," look for the Phil Gramm reference nestled therein. If you don't think that, without a plan such as McConnell's, Republicans would run away squealing, preening, debt-limit-raising and tax-raising when midnight on August 1 rolls around, and then lose big in '12, then you don't know Republicans.)

Is there a constitutional problem with Sen. McConnell's plan? The briefest summaries of it that I've seen make it sound like a legislative veto, such as was held unconstitutional in INS v. Chadha. So it would be if the plan involved asking the President to raise the debt ceiling, subject to a one-house or even bicameral veto-by-resolution, not itself subject to presentment to the President.

But that's not what the plan is, according to more detailed summaries that I've been able to find. First, it authorizes -- by law, i.e. via the Art. I Sec. 7 process -- the President to raise the debt limit. That's really Congress raising the debt limit: it merely hands the President the lifting instrument. See e.g. The Brig Aurora (upholding a federal statute that said inter alia: "the President of the United States be and he hereby is authorized, in case either France or Great Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation, after which the trade suspended by this act and by the act laying an embargo . . . may be renewed with the nation so doing." -- i.e. Congress may simultaneously impose a trade embargo and authorize the President to remove it later, under specified conditions).

And while we've got The Brig Aurora on the table -- no, it's not an unconstitutional delegation, since it gives the President very narrow choices: either don't lift the limit, or, if you do, lift it within statutorily prescribed limits. Accord Field v. Clark (upholding a free-trade statute that directed the President to impose duties on sugar, molasses, coffee, tea, and hides from countries whose trade policies "he may deem to be reciprocally unequal and unreasonable"; the statute then specified the tariffs).

The admittedly byzantine "disapproval resolution" processes in the McConnell plan, far from weakening the plan from either a nondelegation or a Chadha p.o.v., actually strengthen. These processes further curb the assignment of debt-limit-raising to the present, and the disapproval resolutions must all go through the bicameralism and presentment process, thus satisfying Art. I Sec. 7 and Chadha.

Am I missing something?

(For alternative ways for congressional Republicans to make Obama take "ownership" of debt-limit increases and the harshest consequences thereof, see Bill Kristol's take today. His ideas may be better policy than McConnell's. He also thinks the McConnell plan is "probably unconstitutional," but that's ok, everyone gets to be wrong once or twice in a debate as long and sloggy as this!)

:: David Wagner 11:26 AM [+] ::
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:: Wednesday, June 29, 2011 ::

Back at the observation post

I've been in San Francisco for The Ring, but time now to start catching up on those exciting end-of-year decisions. This year the Court didn't up-end the constitutional world (the New York legislature may have done, but I'll discuss that separately if at all), but it did issue some interesting opinions, notably several with splits that defy convention "liberal-conservative" nomenclature. That won't stop the media that need their law cut into small chewable pieces for them, but it's intersting for the rest of us.

I'll start with AT&T Mobility v. Concepcion. This is a pre-emption case. I just happen to be (still) working on an article about pre-emption. Here's the thing about it: it's a very interesting issue that tends to yield very boring cases. This is because at its heart it's a constitutional issue (what is the boundary between federal and state power) and also an administrative issue with constitutional overlay (how far can agencies go in demanding pre-emptive effect for their regulations? what degree of deference should courts give to such assertions?). But the cases are boring because in them the Court implements -- very well, I'm afraid -- the canon of constitutional avoidance, and far prefers narrow statutory decisions to constitutional ones.

Of course, so do counsel: it's not good practice to push the Court toward a broad constitutional holding when a narrow statutory one will serve your client. And I would reject with both hands the notion that it's any part of the Court's job to entertain me. (I have opera for that.)

But the fact remains that those of us who insist, who knows why, in being interested in federal pre-emption must plough through the AT&T v. Concepcions of this world. Even if we knew little about arbitration beforehand (though come to think of it I did once write a speech on ADR for a Deputy Attorney General of the U.S.). At least Justice Scalia wrote it. More soon, though I can't promise I won't do some writing on the other blog first.

:: David Wagner 7:28 PM [+] ::
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:: Friday, June 10, 2011 ::

Kentucky v. King: 4th Am same old same old

We now return from the season of exam-grading, and of commencements and graduations (both Regent's annual one, and that of my son Joseph from Christendom College) and of college reunions (my wife's 30th from Yale, which comes on the heel of my own Yale 30th last year), and of certain opera events chronicled on the other blog, to see what damage (or not) the Court has been doing.

First, Kentucky v. King, a Fourth Amendment "exigent circumstances" decision that has drawn some criticism. It contracts the range of the "police-created exigency" exception to the "exigent circumstances" exception to the "warrant requirement" of the Fourth Amendment. Basically, if the police have a "reasonable" basis for believing evidence is being destroyed behind your door, that's an "exigent circumstance," and they can enter your home without a warrant.

And the funny thing is -- the "warrant requirement" of the Fourth Amendment, the "exigent circumstances exception" to the warrant requirement," the "police-created exigency" exception to the exigent circumstances exception: none of these exist in reality, because the Fourth Amemdment, historically recovered, actually discountenances and restricts warrants, and imposes and absolute, not an exception-riddled, ban on "unreasonable" searches and seizures.

A decison like King, therefore, is a product of the Court's multi-decade misconstruction of the Fourth Amemdnent.

First thing to notice. though: this is a War on Drugs case. The War on Drugs, as much as doctrinal confusion, has eaten the Fourth Amendment.

Now on to doctrinal confusion. This case illustrates perfectly why I don't like teaching Criminal Procedure. Nothing in the way it's currently practiced makes sense. They say Substantive Due Process is a nonsensical field. Well it is, but at least it has internal patterns of a sort. You may not know which set of rules the Court will apply in any given sdp case, but at least the range is limited. In Crim Pro, you have bundles of outcomes that are intelligible in themselves but have no connection with any body of doctrine sufficient to distinguish it from other, conflicting, but also applicable, bodies of doctrine.

In King itself, the Court acknowledged that, so far, five different approaches had been taken by lower courts to the question, when does police conduct create an exigent circumstance, thus depriving the prosecution of the benefit of the exigent circumstances exception to the 4th Am warrant requirement? (Slip op. at 8) The Court dismisses them all, and substitutes instead -- reasonableness:

[W]e conclude that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.

How does this not fall within the general condemnation of definitions that use the term sought to be defined? Where was Scalia, with his usual denunciation of opinions that do nothing but employ lawyers?

But rather than rail further on the King opinion (which, be it noted, garnered the support of Breyer, Sotomayor, and Kagan, as well as the "conservatives" -- I'll discuss Ginsburg's lone dissent at the end), let's read the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If you were to read that with a mind undistorted by Supreme Court opinions, would you think it meant Warrants Are Good, Warrants Are Your Friends? Of course not: all it says about warrants is ro restrict them, severely. And what does it say about searches and seizures? That they're permitted unless they're unreasonable? Odds bodkins, man, wipe the Realist, Warren-Court sleep from your eyes and read: it's a flat-out ban on "unreasonable searches and seizures."

"Oh but who says which searches and seizures are 'unreasonable'"?

I'm going to scream in a minute. Have you ever studied torts? Especially negligence?

Yeah...

Did you encounter the word "reasonable" there, as in, what does the reasonable person do, did the defendant act reasonably, so forth?

Yeah...

Who decided such questions in tort cases?

Well, the finder of fact, but....

And who was the finder of fact in the vast majority of cases?

Well, the jury, but....

Ah. Thought for a moment you'd forgotten the word.

Yeah but sometimes appellate judges reverse jury outcomes....

Sure, in cases that are sufficient outliers to make it into casebooks. But who always gets the first whack at determining what's "reasonable"?

The finder of fact.

*Forehead rub* And that almost always is...?

The jury.

Thank you. That didn't hurt, did it?

But what's it got to do with the Fourth Amendment?

Well now perhaps I've at least motivated you to read what Akhil Amar has written on this (also here, pp. 68-77). More of an originalist than some conservatives are, he remembered that in the experience of drafters of the 4th Am, unreasonable invasions of one's home -- whether by a private party or by a public agent acting under color of law -- was a tort. The offended party could sue. And what was a warrant? It was a certificate from the King -- remember, under Colonial-era separation of powers, before Independence and the Constitution, the judges still worked for the King -- saying, these defandant-officers had permission to do what they did, so let 'em off. Now you can see why the 4th Am doesn't like warrants: they were get-out-of-jail-free cards. Or rather, get-out-of-civil-liability-free cards.

So the two parts of the 4th Am -- the no-unreasonable searches part, and the no-warrants part -- are indeed linked, but our Supreme Court has linked them in a way that turns the amendment on its head. In no particular order, it has made two moves: it has made 4th Am "reasonableness" a matter of law for federal judges, rather than a matter of fact for juries; and it has transformed warrants from despised devices of tyranny into beloved guarantees of liberty: just get a warrant and everything's fine.

Except a rigidly enforced "warrant requirement" regime doesn't correspond to realities of law-enforcement life. So, having invented the warrant requirement, the Court has had to invent further legal fictions to keep the first one going: so we have an array of "exceptions to the warrant requirement," including the catch-all, "exigent circumstances," which boils down to "whenever police really need one." For reasons we have now seen, the warrant requirement is a fiction, so it stands to reason that further fictions are necessary to make it work in the real world. But then those supporting fictions need further supporting fictions, lest they go too far in weakening the warrant requirement fiction: hence, the "police-created exigency exception" to the "exigigent circumstances exception" to the "warrant requirement."

Yes, a lot more confusion than doing what the 4th Am originally commanded: make (federal) officers answerable to local juries, not to federal judges, for the reasonableness of their conduct; and view warrants not as the touchstone of "reasonableness" but as disfavored permission-slips for the breaking of otherwise-applicable law.

Yes, I know it's a long way from here to there. We've created mountainous doctrines of official immunity for police officers' conduct. We can't just flip a switch and return to an originalist 4th Am regime. But what looks better, that -- or Kentucky v. King? Would you at least be interested in measures that might lower the barriers to a new 4th Am originalism? More qualifications of police immunity, for instance? Laws against police interference with citizen filming? Etc.

Now, as to Justice Ginsburg's solo dissent. It may be wise policy, but it doesn't get to the root. I reproduce here her first two paragraphs:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.

The Fourth Amendment guarantees to the people “[t]he right . . . to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search, the Amendment further instructs, shall issue only upon a showing of “probable cause” to believe criminal activity is afoot. These complementary provisions are designed to ensure that police will seek the authorization of a neutral magistrate before undertaking a search or seizure. Exceptions to the warrant requirement, this Court has explained, must be “few in number and carefully delineated,” if the main rule is to remain hardy. United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297, 318 (1972); see Kyllo v. United States, 533 U. S. 27, 31 (2001).

[Ellipses in original] Her courtesy in citing a Scalia opinion (Kyllo) is noteworthy. Beyond praise is her avoidance of a split infinitive in her first sentence. Most legal writers would have said "to routinely dishonor" and been done with it, claiming that in legal writing infinitives simply must be split sometimes, assuming they've even heard of the rule against doing so. Besides Justice Ginsburg, the only Justice who routinely avoids them is Justice Scalia. This may be, like their shared love of opera, evidence of their shared roots in the immigrant, work-hard-get-good-grades culture of ethnic, outer-borough New York City.

But she does not achieve escape velocity from the 4th Am standard model's gravitational pull. Not her fault: what lawyer in his (sorry, RBG!) right mind would argue, in a brief, what Amar does in his scholarship and I've just done on this blog? To see how Ginsburg does not do it, notice that she uses the conventional term "warrant requirement" in her first paragraph. If I'm right, then saying "warrant requirement" re the 4th Am is like saying "coercion requirement" re the 5th. Le sigh.

She gets a little closer in the second graf where the calls the two parts of the amendment "comlementary" and notes the second part's restrictions on the issuance of warrants. But this turns out to be in the context of insisting on the narrowness of exceptions to the "warrant requirement." If one is going to continue believing in the "warrant requirement," then I suppose believing in its narrowness is the best way to remain faithful to the amendment's purpose. Just as I believe that if you've jumped off the Empire State Building, grabbing a passing horizontal flagpole may be your best way to break momentum. Neither is very promising.

:: David Wagner 12:41 PM [+] ::
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