Archive | State Constitutional Law

Right to Physician-Assisted Suicide for “Mentally-Competent, Terminally-Ill Individual[s]”

A New Mexico trial court in today’s Morris v. Brandenberg (N.M. Dist. Ct. Jan. 13, 2014) holds that the New Mexico Constitution protects such an unenumerated right, though the U.S. Constitution does not. Not clear what the New Mexico appellate courts will do with this, though. […]

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The Obamacare Fix’s Legality, State Law and Standing

I have a piece in POLITICO discussing the constitutional problems with the ObamaCare fix, which have been previewed here before. One aspect is whether state officials can ignore ObamaCare and instead apply “The Fix.” Regardless of the discretion President Obama has, state officials do not have enforcement discretion over federal law. It is just supreme, and even if the president ignores it, state officials can not.

Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.

But many parts of Obamacare do have to be applied by states, the traditional front lines of insurance regulation. States, however, lack “enforcement discretion” when it comes to ignoring federal law, even when the president thinks it would be a good idea. As the president has often reminded us, the ACA is “the law of the land,” and remains so after the fix.

The Constitution’s Supremacy Clause makes federal law—not presidential policies— binding on the states. So what’s a state insurance commissioner to do? Federal law requires health plans to have a mandatory level of “minimum coverage.” Thus it is not clear how a state insurance commissioner can authorize a plan that violates federal law.

But state officials may encounter the ACA in different ways. In some states, it will have the general preemptive force of federal law. So states that authorize non-compliant plans pursuant to the Fix would be in conflict with federal law.

A more interesting scenario involves states that have passed “conforming legislation” to “domesticate” the ACA to make it more convenient to enforce. In such states, the ACA is both federal and state law, and at the […]

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San Diego’s Recall Election and California Constitution Art. 3, Sec. 3.5

San Diego’s mayor, Bob Filner, has been accused of widespread sexual harassment (and even assault). He is the subject of a recall petition, and today marks the official beginning of the signature-gathering period. But San Diego’s laws governing recall are both somewhat confusingly-written, and remarkably stringent. The city attorney has already issued three legal opinions clarifying various aspects of the recall procedure:

1, declaring unconstitutional a legal requirement that voters can only vote for a replacement candidate if they voted on the recall question.

2, concluding that it is permissible to have multiple recall petitions circulating until a special election is scheduled, despite a confusingly-worded provision that led some to believe that a failed petition immunized the candidate from further recall efforts.

3, declaring unconstitutional a requirement that petition circulators be state residents.

And the Recall Elections Blog describes San Diego’s law as “a disaster, and it many ways it ranks among the worst recall laws in the country, if not the globe.” But there may be yet an additional lurking “disaster” in California law, which I have not yet seen discussed.

Article 3, Section 3.5(a) of the California Constitution says:

An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
(b) To declare a statute unconstitutional;

In 2004, the California Supreme Court noted that it was an open question whether this provision applies to local executive branch officials, but if it does, then it creates problems for the recall — it would mean that the city ought to be enforcing the unconstitutional voting requirement, and more importantly, the residency […]

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Louisiana amendment to strengthen right to arms, on November ballot

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “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 […]

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In Minnesota, We Shall Overcome

Last night the Minnesota legislature capped a three-week end-of-session effort to ban same-sex marriage.  The state senate approved the amendment on May 11.  It then went to the state house of representatives. In the end, the vote was 70-62 in favor, two more than the 68 needed for passage onto the ballot.  Sixty-eight Republicans (the exact number needed) and two Democrats voted for it.  Four Republicans voted against it, putting their legislative careers on the line, as did 58 Democrats, some of whom represent socially conservative districts. 

The debate lasted more than five hours. You can watch it here, beginning at the 22:30 mark.  (In the background you can hear the chants and songs of hundreds of amendment opponents outside the chamber.)  But debate really isn’t the word for it. As happened in the committee hearings prior to the floor votes, no amendment supporters other than the sponsor spoke up in favor of it.  Even he offered no substantive defense of it, saying only that the people should be allowed to decide the issue.  They sat there, said nothing, and voted “yes.”  There was political calculation in that silence, to be sure, but having talked with many legislators I also know there was some shame in it. 

On the other side, there was a speech by first-term Rep. John Kriesel (R-Cottage Grove), a war hero, that should be remembered when the history of the same-sex marriage movement is finally written. It’s the “Hell No” speech, and can be found here.

During the debate, amendment opponents sang, chanted, and watched the proceedings on monitors.  They sang songs like Amazing Grace, This Land Is Your Land, the National Anthem, and most memorably for me, We Shall Overcome.  Below was the first rendition of many last night.  Forgive the shaky video, […]

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