Archive | April, 2012

Professor Dorf Takes Jeffrey Toobin Back to School

In a recent column, Jeffrey Toobin of The New Yorker criticized Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit for a footnote in his Seven-Sky v. Holder opinion noting that “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”  Eugene posted about Toobin’s essay here.

The New Yorker has just published a letter by Professor Michael Dorf, a noted constitutional law professor at Cornell taking Toobin to task.  Professor Dorf wrote:

Jeffrey Toobin takes Judge Brett M. Kavanaugh to task for attributing to the President the power not to enforce a federal statute, even if the courts have upheld it (Comment, March 26th). Citing the 1803 landmark case of Marbury v. Madison, Toobin asserts categorically that this “is not how it works.” He thus overlooks a long-standing debate about the scope of judicial precedent. Thomas Jefferson declined to enforce the Sedition Act, on the ground that it violated the First Amendment, even though the courts were prepared to uphold the Act. Abraham Lincoln, in his first Inaugural Address, suggested that the Supreme Court’s infamous Dred Scott decision might not be binding beyond the parties to the case. And President Obama has declined to defend the Defense of Marriage Act, on the ground that it is discriminatory. Whatever one thinks of these and other assertions of Presidential non-enforcement power, Judge Kavanaugh did not invent the idea. I share Toobin’s view that the health-care law is valid, but I see no need to accuse a federal appeals-court judge of misunderstanding lessons that he learned in his first week of law school.


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Federalism, Freedom, and the Individual Mandate

Defenders of the individual mandate often argue that the concerns about individual liberty raised by the mandate’s opponent’s are overblown, because most of the latter concede that the Constitution allows state governments to impose similar mandates. A health insurance mandate imposed by a state such as Massachusetts seems no less oppressive than one adopted by the federal government. University of San Diego lawprof Michael Ramsey recently posted a good response to such claims:

[Joey] Fishkin has it wrong to say that denying federal power while recognizing state power is “pure federalism, drained of all libertarian talk of personal freedom.” To the contrary, it is worse for personal freedom for the federal government to impose the mandate (or make you eat your broccoli) than for states to do it. As Kennedy put it for the Court in United States v. Bond, “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power….”

[F]ederalism creates a market for government, in which dissatisfied “customers” can “vote with their feet…..” That in turn preserves individual liberty, not just because people actually do move to avoid oppressive regulation (though they do), but more fundamentally because states and local governments understand that people can move. States are less oppressive, not necessarily because they are closer to the people, but because people have options and states know it. As Kennedy also wrote in Bond, quoting Justice O’Connor in the earlier case Gregory v. Ashcroft, federalism “makes government ‘more responsive by putting the States in competition for a mobile citizenry.’”

Of course, to an extent there are alternatives to the U.S. national government as


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Greek Court Dismisses Defamation-of-Nation Claims Against German Magazine

The AP reports:

A Greek court dismissed defamation charges Tuesday against a German magazine that had illustrated an article on Greece’s economic crisis with a doctored photo of the Venus de Milo statue [draped in a Greek flag and raising her middle finger].

The 2010 Focus magazine article, headlined “Cheats in the European family,” appeared after Greece admitted it had falsified data to hide its acute economic woes, problems that ignited the whole European debt crisis.

A Greek prosecutor had charged the magazine with defamation and insulting a national symbol ….

But the Athens court ruled that Focus had referred to acts by Greek politicians and not the country’s population in general….

There is apparently a separate case progressing against six other employees of the magazine. […]

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More on the Obamacare/Gitmo Parallel

In a post published last week on the oral arguments in the health care case, I wrote:

If the Court does end up striking down the mandate, this will be the second consecutive presidency in which the Supreme Court imposed significant limits on the primary agenda of the sitting President in ways that were unexpected based on precedents at the time the President acted. Last time around, it was President Bush and the War on Terror. The President relied on precedents like Johnson v. Eisentrager in setting up Gitmo. But when the Court was called on to review this key aspect of the President’s strategy for the War on Terror, the Court maneuvered around Eisentrager and imposed new limits on the executive branch in cases like Rasul v. Bush and Boumediene v. Bush. The President’s opponents heralded the Court’s new decisions as the restoration of the rule of law and the application of profound constitutional principle. Meanwhile, the President’s allies condemned the decisions as the products of unbridled judicial activism from a political court. If the mandate gets struck down, we’ll get a replay with the politics reversed. Just substitute Obama for Bush, health care reform for the War on Terror, the individual mandate for Gitmo, and Wickard for Eisentrager.

I think there’s a lot in the comparison, in part because the debate over both policies boils down to judicial deference versus constitutional norms seen as embedded in the text. In the case of Gitmo, the text was the habeas clause, and the norm was that the Great Writ must guarantee judicial review of detention. In the case of the health care litigation, the text is the commerce clause, and the norm is that the federal government must be a government of limited powers. In both cases, the opposing side […]

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President Obama’s Comment About The Health Care Case

In a press conference today with the President of Mexico and the Prime Minister of Canada, President Obama was asked the following question by a reporter:

After last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who’ve become insured as a result of the law?

President Obama responded, in relevant part:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.
. . .
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Taken in context, President Obama’s statement strikes me as pretty much what you’d expect a politician to say in such circumstances. He’s confident that his side will win because he has the precedents on his side. He’s confident his side […]

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President Obama versus the Constitution

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every


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The Ethics of Advocacy Blogging

Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of Prawfsblawg suggests that such advocacy blogging (at least by legal academics) is unethical.

In one sense, all blogging that expresses a position on a controversial issue is “shaping the narrative.” Whenever I write a post on a disputed issue, whether it be the individual mandate or the politics of The Hunger Games, part of my purpose is to persuade readers that I’m right and competing views wrong. I don’t think there is anything unethical about engaging in such efforts at persuasion. Indeed, they are part of what makes blogging – including blogging by academic experts – a useful enterprise.

At the same time, Horwitz is right to suggest that it is wrong for an academic to publicly “assert… with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence” for the purpose of influencing public opinion. Doing so attaches the veneer of academic respectability to an opinion that isn’t actually backed by the scholar’s expert judgment.

As I said in my previous post on this subject, I don’t think this is what most of the liberal commentators who claimed that the mandate was an easy case actually did. I believe that they meant what they said and said what they meant.

And, for what it is worth, I myself have never said anything in a VC post that I didn’t actually believe at the time I said it. Can I definitively prove that? Obviously not. I’m the […]

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The President vs. the Court

At a joint press conference today with President Calderon of Mexico, and Prime Minister Harper of Canada, President Obama was asked whether, in light last week’s oral arguments, he was concerned the Supreme Court might strike down the individual mandate or other portions of his health care reform law.  According to the White House transcript, he responded:

With respect to health care, I’m actually — continue to be confident that the Supreme Court will uphold the law.  And the reason is because, in accordance with precedent out there, it’s constitutional.  That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important — because I watched some of the commentary last week — to remind people that this is not an abstract argument.  People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions. . . .

And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.  So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this.  And I hope that’s not forgotten in this political debate.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.  And I’d just remind conservative commentators that for years what we’ve


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Scholar-Bloggers as Secret Advocates

Over at Prawfs, Paul Horwitz has a provocative post criticizing lawprofs who have commented on the health care cases as advocates without saying so — and specifically, lawprofs who have been formally writing as scholars but really writing as advocates with a goal of “shaping the narrative” of opinion on the constitutional challenge to the mandate:

[T]here is . . . something wrong about yoking one’s reputation as a scholar and expert to the non-scholarly end of “shaping the narrative.” I’m not accusing anyone of doing this last week, although frankly it seems pretty evident to me that it happened and has happened before. And, clearly, not everyone believes there is something wrong with doing so. But I think there are good reasons to be disturbed by such conduct.

Does that mean no scholar is permitted to try to “shape the narrative” through blogging and other commentary, or that there’s something wrong with having a normative legal or political view about such cases and sharing them? Of course not. But it does say something about how one ought to do so consistently with one’s obligations as a scholar. The basic principle, it seems to me, is that your message, and the purpose of your message, should be clear. Someone who writes that current law clearly means X should mean what he or she says; “shaping the narrative” is no defense to asserting with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence. But one can always make clear, implicitly or explicitly, “This is my view of what the law should be, not what it clearly is under current law,” that one is urging a particular result rather than offering an impartial analysis of the issues, and so on.

I can think of


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District Court Upholds Illinois Total Ban on Carrying Guns

Illinois basically bans private citizens from carrying guns outside the home in any way that’s useful for immediate self-defense. Shepard v. Madigan (S.D. Ill. Mar. 30, 2012), has just upheld this ban; other courts, in California, Illinois, Maryland, and Massachusetts have done the same, though the federal district courts in Maryland and North Carolina, as well as an appellate court in Puerto Rico have held the opposite.

The district court reasoned that even a total ban on carrying guns for self-defense outside the home should be judged under “intermediate scrutiny,” and the ban passes because “[t]he State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm.”

Two thoughts about the decision:

1. The court doesn’t discuss whether — as the Maryland federal district court recently suggested — intermediate scrutiny can only be satisfied by regulations of the carrying of guns outside the home, rather than by total prohibitions. To quote, the Maryland district court,

A law that burdens the exercise of an enumerated constitutional right by simply making that right more difficult to exercise cannot be considered “reasonably adapted” to a government interest, no matter how substantial that interest may be. Maryland’s goal of “minimizing the proliferation of handguns among those who do not have a demonstrated need for them” is not a permissible method of preventing crime or ensuring public safety; it burdens the right too broadly. Those who drafted and ratified the Second Amendment surely knew that the right they were enshrining carried a risk of misuse, and states have considerable latitude to channel the exercise of the right in


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Louisiana Legislature Considering Strengthening the State Right to Keep and Bear Arms Provision

The provision now reads, “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person”; SB 303 would propose a constitutional amendment that would instead say,

The right of each citizen to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction shall be subject to strict scrutiny.

For more on what “strict scrutiny” might mean in this context, and on other possible constitutional tests, see Eugene Volokh, Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA Law Review 1443 (2009). Thanks to Bill Rafferty (Gavel to Gavel) for the pointer. […]

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Ninth Circuit Rejects Constitutional Challenge to California’s Anti-Race/Sex-Preferences Initiative (Prop. 209)

Coalition to Defend Affirmative Action v. Brown (9th Cir. Apr. 2, 2012) has just rejected a constitutional challenge to California’s ban on race and sex preferences and discrimination in public employment, education, and contracting; the panel followed as binding precedent Coalition for Economic Equality v. Wilson (9th Cir. 1997), which rejected a similar challenge, and rejected the plaintiffs’ proposed distinctions between the two cases. A Sixth Circuit decision, Coalition to Defend Affirmative Action v. Regents (6th Cir. 2011), had struck down a similar Michigan law on the same grounds urged by the plaintiffs here; that decision, though, has been vacated and is now being reheard en banc by the Sixth Circuit. For more on the underlying legal arguments, please see the 1997 Ninth Circuit decision and the Sixth Circuit panel opinion.

I should note that I was one of the legal advisors to the Prop. 209 campaign, and helped draft the initiative (which is now Cal. Const. art. I, § 31). Congratulations to my friends at the Pacific Legal Foundation on the victory. […]

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New Draft Article, “The Mosaic Theory of the Fourth Amendment”

I have just posted a new draft article, The Mosaic Theory of the Fourth Amendment, which is forthcoming in the Michigan Law Review. Here’s the abstract:

In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.

I have a few weeks to work on the article before I submit a version to editors to begin the formal editing process, so comments are very welcome. (That’s especially true because this article was written in the brief window after Jones was handed down before the March submission season, so it is less set than most articles might be at this stage.) There is no need to catch typos or anything like that, as the editors will look for […]

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Employers Asking for Facebook Login Information of Employees and Job Applicants?

Apparently this has begun to happen recently, and i was on C-Span’s Washington Journal program this morning to discuss it.

Washington Journal callers sometimes have pretty off-the-wall questions, and the first call at 3:55 managed to veer from Facebook login information to the military industrial complex. (Note pretend sipping of coffee at that point to avoid cracking a smile on camera.) […]

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