NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Thursday, February 24, 2011 ::
Executive branch will not defend DOMA
Constitutional: The presumption that the Executive will defend all federal statutes against constitutional attack is not conclusive, but it is very high. To reach for my stock example of a plainly unconstitutional statute: if Congress had passed, and the previous President had signed (or if Congress had enacted over the present President's veto) a law that says "The Presbyterian Church of America is hereby established as the national church of the United States," I trust and assume that no President would allow his DOJ to defend it. But it would normally take a case of unconstitutionality that clear to overcome the presumption of Congressional constitutional propriety under which the Executive operates.
DOMA, both as policy and as to its constitutionality, is "controversial." That fact alone is enough to take it out of the category of the "clearly unconstitutional" and establish a duty in the Executive Branch to take care that it be faithfully executed. The alternative is to allow the Executive, through DOJ, to become a non-Article III reviewing court, a sort of Executive Council of Review, with the branch of government that has the "take care" duty fulfilling that duty only when it is independently convinced, de novo, of a federal law's constitutionality. That is not the Constitution we have.
Political: Why would the Obama Administration, already under fire for neither doing or saying anything while Libya crumbles and the fate of Gadhafi, one of the most prolific post-WWII political criminals, is up for grabs, make a decision like this at a time like this? He must be in such trouble with "the base" that he can -- must -- ignore world-shaping events, and take risks with the national electorate at the same time (no way his switch on DOMA helps him nationally), in order to placate and energize them. And also to prepare the rest of us for his full embrace of same-sex marriage, since no one really believes he's "struggling" with it, unless you mean "struggling" with his pollsters to find the right time to make the big announcement.
:: David M. Wagner 12:34 PM [+] ::
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:: Thursday, February 17, 2011 ::
Beginning to think that acc. to SCOTUS, the US Courts of Appeals are the only thing that turn Administrative Law, once a nice neighborhood of American law, into more or less of a plague spot. #Vermont Yankee #Pension Benefit Guarantee Corp. v. LTC
:: David M. Wagner 1:30 PM [+] ::
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:: Saturday, February 12, 2011 ::
Latest Cooley Law School Rankings Achieve New Heights of Intellectual Dishonesty By Elie Mystal
LOL. Cooley is a nice school for our denies.
:: David M. Wagner 4:03 PM [+] ::
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:: Wednesday, February 09, 2011 ::
Scalia, Obamacare, and the Necessary & Proper Clause
Robert Verbruggen has an interesting piece at NRO today arguing: in the Obamacare-a-geddon case that's presumably coming, don't worry about Kennedy, worry about Scalia: he's the one who has accepted, in detail, an expansive interpretation of the Necessary and Proper Clause, a clause that, though not itself an enumerated power of Congress, expands the powers that are enumerated, both in Art. I Sec. 8 and elsewhere. Verbruggen is of course referring to Scalia's concurrence in Gonzales v. Raich.
It's true that Justice Scalia is in some ways a conservative version of a New Deal Justice. He is very much like Justice Frankfurter (except for the Establishment Clause, but very much including the Free Exercise Clause); and course his views on substantive due process are on a wavelength with Justice Black's (with whom he would, again, differ on the Establishment Clause).
But, as I told Lindsay Bachman, my former student who called my attention to the Verbruggen piece, Scalia also joined in then-CJ Rehnquist's highly non-New-Deal-ish opinion for the Court in Lopez, discovering for the first time since 1935 an outer limit to the Congress's Commerce Clause power and finding the a federal statute banning "possession" of a gun near a school to be beyond it. The N&P Clause did not save that statute. Is Obamacare more like this, or more like Gonzales v. Raich, in which Scalia concurred separately, over O'Connor and Thomas dissents, in a holding that -- given the undisputed validity of the federal Controlled Substances Act -- the N&P Clause meant that no constitutional violation occurred when the feds denied Californians the benefit of a state-enacted exemption for medicinal marijuana.
Here's what I think Verbruggen' piece understates: in Raich, California (through a handful of its citizens, who were consumin', in reliance on a state medical marijuana law) was asserting a constitutionally required exemption from a concededly valid federal law. We know from Smith what Scalia thinks of judicially managed exemptions from concededly valid laws! (For drug-war sceptics: keep in mind that in Raich, the constitutionality of the Controlled Substances Act was not even drawn into question. And, policy to one side, I don't fancy the plaintiffs' chances if they had tried to persuade the Court to strike it down!)
It seems to me that whereas state-applicable prohibitions on m.j. in Raich were found by the Court to be a part of a federal regulatory scheme that was not itself challenged, Scalia could conclude, as he did, that application of prohibitions in all the states equally was a policy that was linked to the Controlled Substances Act by the N&P Clause. But with Obamacare, the individual mandate is not just a part of the plan -- it virtually is the plan. Congress designed it that way, by deliberately leaving out severability. This probably makes its case much more like Lopez than like Raich.
:: David M. Wagner 9:44 PM [+] ::
...
Leroy Rountree Hassell, Chief Justice of Virginia, 55, RIP -- a devastating loss to Virginia, and in particular to Regent University School of Law
:: David M. Wagner 3:27 PM [+] ::
...
Constitutional: The presumption that the Executive will defend all federal statutes against constitutional attack is not conclusive, but it is very high. To reach for my stock example of a plainly unconstitutional statute: if Congress had passed, and the previous President had signed (or if Congress had enacted over the present President's veto) a law that says "The Presbyterian Church of America is hereby established as the national church of the United States," I trust and assume that no President would allow his DOJ to defend it. But it would normally take a case of unconstitutionality that clear to overcome the presumption of Congressional constitutional propriety under which the Executive operates.
DOMA, both as policy and as to its constitutionality, is "controversial." That fact alone is enough to take it out of the category of the "clearly unconstitutional" and establish a duty in the Executive Branch to take care that it be faithfully executed. The alternative is to allow the Executive, through DOJ, to become a non-Article III reviewing court, a sort of Executive Council of Review, with the branch of government that has the "take care" duty fulfilling that duty only when it is independently convinced, de novo, of a federal law's constitutionality. That is not the Constitution we have.
Political: Why would the Obama Administration, already under fire for neither doing or saying anything while Libya crumbles and the fate of Gadhafi, one of the most prolific post-WWII political criminals, is up for grabs, make a decision like this at a time like this? He must be in such trouble with "the base" that he can -- must -- ignore world-shaping events, and take risks with the national electorate at the same time (no way his switch on DOMA helps him nationally), in order to placate and energize them. And also to prepare the rest of us for his full embrace of same-sex marriage, since no one really believes he's "struggling" with it, unless you mean "struggling" with his pollsters to find the right time to make the big announcement.
:: David M. Wagner 12:34 PM [+] ::
...
Beginning to think that acc. to SCOTUS, the US Courts of Appeals are the only thing that turn Administrative Law, once a nice neighborhood of American law, into more or less of a plague spot. #Vermont Yankee #Pension Benefit Guarantee Corp. v. LTC
:: David M. Wagner 1:30 PM [+] ::
...
Latest Cooley Law School Rankings Achieve New Heights of Intellectual Dishonesty By Elie Mystal
LOL. Cooley is a nice school for our denies.:: David M. Wagner 4:03 PM [+] ::
...
Robert Verbruggen has an interesting piece at NRO today arguing: in the Obamacare-a-geddon case that's presumably coming, don't worry about Kennedy, worry about Scalia: he's the one who has accepted, in detail, an expansive interpretation of the Necessary and Proper Clause, a clause that, though not itself an enumerated power of Congress, expands the powers that are enumerated, both in Art. I Sec. 8 and elsewhere. Verbruggen is of course referring to Scalia's concurrence in Gonzales v. Raich.
It's true that Justice Scalia is in some ways a conservative version of a New Deal Justice. He is very much like Justice Frankfurter (except for the Establishment Clause, but very much including the Free Exercise Clause); and course his views on substantive due process are on a wavelength with Justice Black's (with whom he would, again, differ on the Establishment Clause).
But, as I told Lindsay Bachman, my former student who called my attention to the Verbruggen piece, Scalia also joined in then-CJ Rehnquist's highly non-New-Deal-ish opinion for the Court in Lopez, discovering for the first time since 1935 an outer limit to the Congress's Commerce Clause power and finding the a federal statute banning "possession" of a gun near a school to be beyond it. The N&P Clause did not save that statute. Is Obamacare more like this, or more like Gonzales v. Raich, in which Scalia concurred separately, over O'Connor and Thomas dissents, in a holding that -- given the undisputed validity of the federal Controlled Substances Act -- the N&P Clause meant that no constitutional violation occurred when the feds denied Californians the benefit of a state-enacted exemption for medicinal marijuana.
Here's what I think Verbruggen' piece understates: in Raich, California (through a handful of its citizens, who were consumin', in reliance on a state medical marijuana law) was asserting a constitutionally required exemption from a concededly valid federal law. We know from Smith what Scalia thinks of judicially managed exemptions from concededly valid laws! (For drug-war sceptics: keep in mind that in Raich, the constitutionality of the Controlled Substances Act was not even drawn into question. And, policy to one side, I don't fancy the plaintiffs' chances if they had tried to persuade the Court to strike it down!)
It seems to me that whereas state-applicable prohibitions on m.j. in Raich were found by the Court to be a part of a federal regulatory scheme that was not itself challenged, Scalia could conclude, as he did, that application of prohibitions in all the states equally was a policy that was linked to the Controlled Substances Act by the N&P Clause. But with Obamacare, the individual mandate is not just a part of the plan -- it virtually is the plan. Congress designed it that way, by deliberately leaving out severability. This probably makes its case much more like Lopez than like Raich.
:: David M. Wagner 9:44 PM [+] ::
...
:: David M. Wagner 3:27 PM [+] ::
...
