The Volokh Conspiracy

A lot of the early press reports on United States v. Jones reports that the Supreme Court held that the government needs a warrant to install a GPS device. But that’s not correct, actually. The Court merely held that the installation of the GPS was a Fourth Amendment “search.” The Court declined to reach when the installation of the device is reasonable or unreasonable. As the opinion explains on page 12 of the slip opinion:

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).

So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”

For the last 40 years, the hornbook law of what amounts to a Fourth Amendment search was that a search occurs when government conduct violates both a subjective expectation of privacy and an objective reasonable expectation of privacy. As of this morning’s decision in Jones, the new doctrine for what is a Fourth Amendment “search” appears to be as follows:

A search occurs either when

(a) A trespassory test is satisfied: (1) a “trespass” occurs, (2) the trespass is onto an enumerated item listed in the Fourth Amendment (“persons, houses, papers, or effects”), and (3) it occurs with the intent “to find something or to obtain information”

or

(b) The Katz test is satisfied: the government conduct violates a subjective expectation of privacy and an objective reasonable expectation of privacy

Today’s majority opinion in Jones announces the trespassory test and applies to to find that the installation of the device with intent to use it was a search. As a result, the Court doesn’t purport to reach the “reasonable expectation of privacy” question. The Court also did not reach when installing a GPS device is a reasonable search, holding that the issue was forfeited because it was not raised below.

UPDATE: At first blush, one question I’m not entirely certain of is what the test is for a trespass. Trespass law has changed over time, and it varies state to state. Civil trespass can be different from criminal trespass. Is the question whether the act would have constituted a trespass at common law, or whether it is a trespass today? Justice Alito’s opinion indicates that he thinks the test is a trespass at common law, but does the majority take a view on that?

In Marbury v. Madison, John Marshall wrote:

The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

Once the Court moves beyond the original meaning of the text to allow Congress to reach activity that is neither “interstate” nor “commerce” (using the Necessary & Proper Clause as its warrant), there still remains the need to establish some limit on these “implied” nontextual powers, lest the national government becomes a government of general powers.  The “express prohibitions” provided by the Bill of Rights don’t count since they equally constrain state governments.  Were these the only constraints on federal power, then the scope of the power of Congress would be exactly the same as the power of states.  And this proposition has always been rejected by the Supreme Court.  As Chief Justice Rehnquist affirmed in Lopez:

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, §8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft (1991). “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”…

So the challenge is to limit, somehow, the scope of the power that lies beyond Congress’s plenary power to “commercce . . . among the several states.”

One possible constraint is political.  But , as John Marshall stated above in Marbury, a “political” constraint which allows the legislative branch to define the limits of its own power is not sufficient.  What is needed is a judicial constraint.  Much more can be said about why political constraints are insufficient, but time and space are limited.  Suffice it to say that, whether or not Marshall (and Rehnquist) are wrong about the need for a judicially-enforced constraint, even the New Deal Court in Wickard declined to adopt “political constaints” as the only constraint on the enumerated powers of Congress.  See Barry Cushman, Rethinking the New Deal Court.

But there are only two types of judicially-enforceable limits.  The first is fact-based.  Examine the “rationality” of a particular measure to see if it is really serving the enumerated power.  This was the method commonly employed by the Supreme Court before the New Deal in both Due Process and Commerce Clause cases, but which the Supreme Court has generally rejected in favor of hypothetical rational basis scrutiny.  The government contends that the power to impose economic mandates on the people is limited by the fact that “health care is different” from other sorts of economic mandates, e.g. a mandate to buy GM cars.  We disagree.  Were this to be a genuine limit, we would be entitled to a hearing to decide this factual question. On remand, the courts would also have to adopt some standard of review to decide whether we or the government were correct in our respective assessments of the facts.  This standard cannot be modern hypothetical rational basis scrutiny, because that would be no scrutiny at all and would fail to provide a judicially-enforceable constraint.  The Justices know this.  While heightened factual scrutiny of the choice of congressional means would not bother me, it runs contrary to the Court’s approach since the New Deal and would surely bother the Justices.

This leaves the approach employed by the Court in Lopez:  identify a judicially-administrable categorical limitation on the implied powers of Congress.   This is my reading of what Justice Rehnquist was attempting to achieve in Lopez: identify a categorical limitation on the implied power of Congress to go beyond the regulation of interstate commerce itself and reach intrastate activity that was not itself “commerce” which would be consistent with prior post-New Deal decisions (“this far”).  So he adopted the nontextual and nonoriginalist distinction between the regulation of intrastate activity that is “economic” (“this far”) but not “noneconomic” (“no farther”) regardless of whether the noneconomic activity could rationally be said, in the aggregate, to substantially affect interstate commerce.

In Raich we asserted that, because Angel Raich’s and Dianne Monson’s activities were noneconomic — no money was being exchanged for marijuana — their conduct fell outside the line the Court had drawn in Lopez and Morrison.  The government contended that Angel’s and Dianne’s activity was “economic” because it substituted for the economic activity of buying marijuana on the market.  Had the Court accepted the position of the government, Raich would have replaced Wickard as the outermost reach of Congressional power and led to an unlimited Commerce Clause/Necessary & Proper Clause power.  As I said during oral argument, every activity, even marital sexual relations, could be construed as “substitute” for something available on the market.

Perhaps sensing this, happily, the Court implicitly rejected the government’s expansive theory, and therefore greatly limited the scope of its holding in Raich, when it held that the production and consumption of a “commodity” was quintessential economic activity, relying on the definition found in a 1966 Webster’s dictionary.  Indeed, by limiting its holding to the particular dictionary definition of “economic” from Webster’s, Raich actually narrowed the scope of Lopez, assuming this was to be the exclusive definition of “economic” that would be employed by the Court in the future.  For example, buying insurance, while broadly “economic” is not the purchase or consumption of a “commodity.”   In this sense, the holding of Raich was limited to a power that had clearly been exercised in the past (“this far”): the power to prohibit the intrastate production and consumption of a commodity.

Justice Scalia’s concurrence in Raich extending the power to reach noneconomic activity when doing so was essential to a broader regulation of interstate commerce, seems more ambitious, which is why the government has relied so heavily upon it throughout this litigation.   Yet I think Justice Scalia was responding to another feature of Raich that was downplayed during the litigation and never explicitly examined.  We were bringing an “as applied” Commerce Clause challenge in which we did not contest the power of Congress to regulate the interstate drug trade.  Neither did we contest the power of Congress to reach the intrastate drug trade in states that had not legalized such trade.  We were attempting to carve out a sub-class of activities from that which Congress was trying to regulate: wholly intrastate cultivation and use of marijuana for medical use as authorized by state law.  Much of oral argument was devoted to defending the cogency of this sub-class.

Although such as applied challenges had been brought before, none had ever succeeded.  I believe that Justice Scalia’s Necessary & Proper Clause focused opinion was his attempt to handle this aspect of the case by explaining why, if Congress could regulate genuinely interstate commerce in intoxicating substances (as we conceded), as part of its broader regulatory scheme, it could also reach this subset of activities that could not feasibly be distinguished from the commerce over which it had control.  For Justice Scalia, the fact that these activities may be noneconomic (not for money) did not make it any less necessary to reach them, or at least so Congress could decide in its discretion.

It remains to be seen whether Justice Scalia will be willing to extend this rationale to a facial challenge to a power to mandate the purchase of insurance by individuals because it is “essential” to the power of Congress to regulate the terms by which insurance companies do business.  This is the government’s contention, but it is a considerable step beyond the problem Justice Scalia was wrestling with in Raich. Recall that, in the facial challenge in Comstock, Justice Scalia joined Justice Thomas’s dissenting opinion in which Justice Thomas reasserted Justice Scalia’s holding in Printz that the means chosen by Congress (commandeering the states) was “improper.”  So Justice Scalia still holds the view that some means of executing the commerce power, while necessary under a rational basis approach, are nevertheless improper.  The question for him is whether his analysis of “necessity” in Raich is similarly qualified by the “impropriety” of the chosen means.

To date, the government has been unable to articulate a “categorical” limitation on the power to mandate that individuals enter into contracts with private parties, yet it has not been bold enough to assert that the only constraint is “political.”  And I do not believe that their “factual” limitation (“health care is different”) will fly.  If the Court does accept this approach, then assuming it also adopts a modern hypothetical rational basis approach, it would effectively be adopting the “political constraints only” position.  Maybe, as in Raich, the Court will simply say that because the “decision” not to buy health insurance is “economic,” as the government urges, it can be reached under Lopez.  But the power to reach economic “decisions” is as capacious as the government’s “substitution” theory in Lopez Raich.  It is a mere fig-leaf to cover the “political constraints only” position that will fool no one if it adopted.  This would not even amount to the “symbolic” federalism reading of Lopez; it would be no federalism at all.  Which, again, is why this case is such a big deal.

Congratulations to Orin on having an article of his, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004), be cited once by the majority and twice by the four-Justice concurrence in the judgment in today’s United States v. Jones Supreme Court decision.

I’m about to head off to teach an 11am class about the reasonable expectation of privacy test, using the case of United States v. Jones as a hypothetical, which means I have some quick reading to do.

Much of the difference of opinion over the constitutionality of the individual insurance mandate turns on a difference of opinion about the appropriate baseline for evaluating Congressional power. For 60 years, law professors taught that Congress had unlimited discretion with respect to using its commerce power to regulate the national economy. They held this view notwithstanding that the Supreme Court had never ennunciated such a position and that we now know that some Justices on the New Deal Court considered doing so in Wickard but declined to pull that trigger. Virtually all “progressive” academics — and many, if not most, “conservatives” whose constitutional views were formed before 1995 — accepted and continue to accept this proposition as the baseline against which Congressional legislation was to be assessed.

Regardless of whether this was ever the baseline accepted by the Supreme Court, in 1995, the Supreme Court arguably (more on this in a moment) rejected it in favor of another: Congress has discretion with respect to all the powers that have been upheld up to that point, but any claim of implied Congressional power beyond that point was constitutionally suspect. Because Congress had never before attempted to regulate wholly intrastate noneconomic activity, a majority of the Court in Lopez and again in Morrison (over the empassioned dissent of those Justices who hewed to the other baseline) said it would not recognize this new extension of power.  Raich can be understood as an effort to restrain Congress from exercising a power it had long used: the power to regulate the intrastate cultivation, possession and distribution of an intoxicating substance.  It can also be understood as an effort to sustain an “as applied” challenge to a facially constitutional exercise of the commerce power, and no such challenge had ever before succeeded.

Since Lopez and Morrison have now become fixed poles of constitutional decision, there are two competing readings of these cases depending on which baseline one holds.  Those who continue to hold the baseline of unlimited Congressional discretion – whose politics can be progressive or conservative – construe Lopez and Morrison as identifying a relatively narrow exception to this power. Since the individual insurance mandate does not clearly fall within this exception, it is therefore deemed by them to be clearly constitutional. This is why, I believe, so many constitutional law professors thought this case was so easy.

In contrast, those who interpret Chief Justice Rehnquist’s opinions in Lopez and Morrison as rejecting that baseline in favor of the position that Congress may go as far as it has gone in the past, but no farther view the mandate quite differently.  Because the power to require all citizens to enter into contracts with private companies is a new or “unprecedented” claim of power, it is at minimum constitutionally suspect and at maximum unconstitutional.  Given the baseline, the burden is on the government to justify this expansion of federal power as both necessary and proper.  As important, there must be some identifiable and judicially administable limit on its exercise.

Ultimately, it will be up to the individual Justices to decide which baseline they wish to employ.  Do Lopez and Morrison represent merely symbolic “sport” cases as so many academics now believe?   Or did these cases (along with cases such as New York, Printz and Alden) establish a post-New Deal baseline (“this far and no farther”) beyond which Congress may not go without meeting a serious burden of justification?  Because this case will tell us which baseline the Roberts Court wishes to affirm for the future, it is both a very big deal and not all that easy to predict simply on the basis of prior cases and doctrines.  If the Roberts Court adopts the first baseline, however, it will not only be repudiating what I believe to be the best reading of the Rehnquist Court’s landmark decisions establishing the so-called New Federalism, it will finally be doing what even the New Deal Court could not bring itself to do.  Regardless of how they eventually rule, one can well understand why the Court would feel the need for 3 days of oral argument to consider this decision.

Interesting column by James Grant on the short but severe post-WWI Depression of 1920-21:

Our Great Recession ended 2½ years ago, according to the official cyclical timekeepers, but you wouldn’t know it by a glance at the news. Zero percent interest rates and $1 trillion in “stimulus” notwithstanding, the U.S. economy can hardly seem to heave itself out of bed in the morning. Now compare this with the first full year of recovery from the ugly depression of 1920-21. In 1922, under the unsung stewardship of the president best remembered for his underlings’ scandals and his own early death in office, the unemployment rate fell from 15.6 percent to 9 percent (on its way to 3.2 percent in 1923), while constant-dollar output leapt by 16 percent. After which the 1920s proverbially roared.

And how did the administration of Warren G. Harding, in conjunction with the Federal Reserve, produce these astonishing results? Why, by raising interest rates, reducing the public debt and balancing the federal budget. Let 21st-century economists rub their eyes in disbelief. Eighteen months after the depression started, it ended.

I’ve been fascinated by the contrast of Harding’s response to the 1920 depression versus Roosevelt’s seemingly-counterproductive response to the Great Depression since I read several discussions a few years back (see here, here, and here).  The problem with macroeconomics, of course, is the paucity of data points and the inability to control for relevant variables.  But it is nevertheless striking to me that discussion always seems to focus on what at first glance appears to be the failed Hoover-Roosevelt response to the Great Depression rather than the apparently effective Harding response to the 1920 Depression.

The only discussions I’ve seen of the 1920 Depression are those that support Harding.  Has anyone written a good response to that story, because what I’ve read seems fairly compelling (at least to the extent that macroeconomics can ever tell a compelling story).

The most recent batch of attacks began Friday, but continued today.

The radical Islamist terror group Boko Haram, believed to have carried out over 500 terror attacks last year, has already claimed responsibility for the violence in Kano. The group, whose name can be translated as “Western education is a sin,” said that the onslaught was a protest against the government’s refusal to release its members from prison.

Trevor Burris responds to my exchange with Orin on applying the state noncommandeering doctrine to mandates that “the people” enter into contractual relations with private companies in Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr.  Here is an excerpt:

I believe Professor Barnett has the right of it, but I do acknowledge Professor Kerr’s concerns. I would like to add something to Professor Barnett’s argument: The individual mandate was passed to avoid the political liability that a taxation-driven scheme would have brought (if you doubt this, read Michael Cannon’s post here). This is constitutionally significant to the anti-commandeering argument.

[snip]

If the federal government is properly understood as resting on dual representative pillars—the people and the states—then either can be commandeered. Although our case law only discusses the impropriety of commandeering state governments, it is fully within a proper understanding of the Constitution that people are equally susceptible to unconstitutional commandeering. It is of no matter that they are commandeered at other times—e.g., jury duty, the draft, etc.—because states are likewise commandeered by the Constitution—e.g., rules on choosing senators, members of Congress, and electors, as well as the prohibitions in Article 1, Section 10. But since, at some fundamental level, commandeering is so repugnant to a limited government empowered by a free people, there has to be some way to determine unconstitutional commandeering.

In order to determine this, I propose that, because we are talking about the people and not the states, we must look to the ways in which commandeering is constitutionally allowed and see if those protections have been avoided in passing the individual mandate. Taxation is a dangerous power, but the Constitution requires that it be above the board so citizens are aware when forced wealth transfers are occurring. For similar reasons, Article 1, Section 9 requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” As Michael Cannon’s post linked above shows, this type of accounting was intentionally avoided by Congress in passing PPACA.

So, I offer to Professor Kerr this principle of decision in the case: THIS IS NOT OKAY. Specifically, when looking to whether or not the people have been commandeered, we look to whether the protections in the Constitution that prevent commandeering have been avoided. One instance in which this would nearly always be the case: the forced purchase of a product from a private entity.

You can read the whole thing here.

A few clarifications of my position.

• In my view, “commandeering” has a much narrower and more specific meaning in the existing doctrine than “commanding.”  It means taking over a power properly exercised by another sovereign.  In New York, the power is that of a State legislature to enact legislation (and the correlative power to decline to exercise this power).  With the mandate it the power of “the people” to consent to enter into contractual relations with a private party (and the correlative power to decline to exercise this power).   Just as state legislatures have their own reserved power to enact statutes, so too do individuals have the reserved power to alter their legal relations with others via contract.  Indeed, as Lon Fuller observed, these powers are very similar.  ”Commandeering” is the coercing of states (or by extension individuals) to exercise their distinct powers in ways desired by Congress.
• For this reason, making you live with a soldier in your home, convicting yourself by your own words, or performing personal services for another, best exemplify the noncommandeering concept.  The power to “take” property for public use, an example I also used in my earlier post, is closer to the power to tax.
• Now, Congress has expressly delegated powers to coerce individuals that it lacks against the States, most importantly the power to tax.  But the (dangerous) power to confiscate property in the form of taxes or by eminent domain is not the same as the power to make someone alter their legal relations with another person, which is what contracts do.
• Congress also has many powers at its disposal to create incentives for states and individuals to exercise their reserved powers in ways that Congress desires, and providing such incentives is not “commandeering” (unless, as per Dole, they cross the line into “coercion”).
• Likewise, as the term appears to be used by the Court, States (and by extension private persons) are not “commandeered” when they are forcibly prevented from exercising their powers, or when they are regulated in the manner of their exercise.   Prohibitions on race and sex discrimination by individuals regulate the manner by which certain activities like operating a restaurant or hotel are to be conducted; these measures do not command that persons enter into the restaurant or hotel business.  The very same line has implicitly been drawn by the Court in applying the noncommandeering doctrine to States, while upholding the power of Congress to regulate the manner by which States engage in economic activity.
• This is all a question of delegated power, not the side constraints of rights.  Congress is claiming an implied power to force people to enter into contracts with private companies.  Is its claim of implied power warranted or not?   The fact that, as Justice Kennedy explained in Bond, the enumeration of delegated Congressional power is a means of protecting liberty does not render it the same type of endeavor as the doctrinal protection of certain “fundamental” rights under the Due Process Clause.   Indeed, the Federalists originally contended that the protection of express rights would be unnecessary at the federal level because of the limited and enumerated delegation of powers in the Constitution.

I think the “commandeering” concept best explains why so many people instinctively find the individual insurance mandate peculiarly offensive, just as it explains why some justices found the State mandates in New York and Printz to be objectionable.  Conversely, those who take a fundamentally different view of the relationship of the individual to the government — or of the States to the federal government — simply do not understand what the fuss is all about.  In this regard, if no other, the debate over the mandate is revealing.

You can read a fuller treatment of the approach in my 2010 law review article, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional.  But since I published that piece, I have had considerable time to give the matter fuller thought, so I might not explain the position precisely the same way today.

Andres Marroquin, a Guatemalan economics blogger I follow with interest, has a new draft paper (co-authored with Julio Cole), “Economical Writing (Or, Think Hemingway).”  It is summarized at Marroquin’s blog post, The Economics of Writing.

Literature [Nobel] laureates tend to use shorter words than laureates in other disciplines, and the difference is statistically significant. These results confirm Salant’s idea that words are a scarce resource and should be used efficiently. This includes using short words instead of longer ones whenever possible. In short, good writing is also “economical writing.” [Table omitted.]

Note that the lowest average word lengths are for the Literature prize. In terms of syllables/word the Literature laureates’ word lengths were, on average, almost 8% shorter than the weighted average for non-Literature laureates, and about 6.6% shorter in terms of characters/word.

Salant (1969) argued that the use of short words is an indication of good writing. We found support for this hypothesis by comparing the banquet speeches of Nobel laureates. To be sure, word length is only one dimension of what makes for “good writing.” But it seems that it is a necessary dimension. Words are a scarce resource and must be used efficiently. This includes using short words rather than longer ones, whenever possible. “Economical” writing might indeed be the key for “good” writing. We leave for debate the different implications of our paper.

I invite readers to consider in the comments whether the method pursued here is suited to the task at hand, or whether it is instead an example of a method gone in search of something to measure, or something again entirely.  Note that this is different from asking whether good writing indeed consistently uses shorter words (the Hemingway or Orwell “plain prose” aesthetic), or whether good writing is much more variable on this metric than one might have guessed (Blaise Cendrars, for example, or Garcia Marquez or Milan Kundera).  Finally, is it true that “words are a scarce resource?”  Don’t the authors mean, rather, that more words are always available and that reader attention is the scarce resource?  (BTW, in posting this, I should ask whether I have been taken in by a parody – someone bidding for an Ignoble Prize?)

Ryan Calo, director for robotics at Stanford Law School’s Center for Internet and Society, has a new, op-ed length essay on the ways in which robots fall in-between regulatory stools as they move from specialized factory or military functions into everyday life.  Who Will Regulate Robots?

Students of this transformative technology should keep their eye on both the claims and disavowals of authority over robots by state and federal agencies. Each hold potential dangers for our civil liberties and for the future of robotics … the mainstreaming of robotics will pose challenges for regulators. Even if it is clear that a given agency should have something to say about a robot, it is not clear exactly what the scope of their authority will be.

The Federal Aviation Administration worries about (and, for now, restricts) the domestic use of drones on the basis of safety. But the agency does not appear to have anything to say about the potential of this technology to infringe upon citizen and consumer privacy. Similarly, the National Highway Safety Traffic Safety Administration thinks about the impact of autonomous vehicles on safety but does not appear to have given any thought to the effects of driveless cars on citizen autonomy—for instance, were law enforcement to claim a right to force an autonomous car to slow down or pull over.

When I first mentioned my interest in robotics and the law beyond the battlefield where I have been studying it for several years, a sophisticated law professor friend asked how there were legal issues beyond tort and products liability.  The rest of the potential issues – intellectual property, etc. – were not particularly special to robots.  Ryan Calo’s scholarship has been central to showing the many ways in which this potentially transformative, but also disruptive, technology raises in its knock-on effects many legal questions.  And as he says, the avowals and disavowals of regulatory authority by existing regulatory agencies over different types and aspects of robotics raise the specter of regulating things we wish were not regulated, but also failing to regulate things we might wish were.  Comments open for this post.

A North Carolina statute, § 163-274(a)(6), makes it a misdemeanor “to discharge or threaten to discharge from employment … any legally qualified voter on account of any vote such voter may cast or consider or intend to cast.” North Carolina employment law also generally makes it civilly actionable to fire an employee “in contravention of express policy declarations contained in the North Carolina General Statutes,” which I suspect means that actions that violate this criminal statute would probably also be tortious.

Say that a private employer in North Carolina fires an employee for expressing support for a candidate or a proposed constitutional amendment that the employer views as highly reprehensible. Say, for instance, the employee says “Newt Gingrich is the best presidential candidate out there,” though without an express statement that “I’m going to vote for him,” or “I’m glad that a constitutional proposal to expressly forbid same-sex marriage is finally on the ballot.” And say that the employer then fires the employee based on that statement.

Should that be viewed as discharging the employee “on account of any vote such voter may … consider or intend to cast,” and therefore actionable? Or would it likely be viewed as discharge based on the employee’s pro-candidate speech rather than the employee’s perceived intended future vote, and therefore not actionable? (North Carolina is not one of the 16 states that generally bars private employer discrimination based on an employee’s speech or partisan political activity.) I ask this because I’m finishing up an article that would list the state and local laws that ban private employer discrimination based on speech or certain kinds of political activity, and I’m trying to decide whether to categorize this statute as a possible protection for speech supporting or opposing a candidate or constitutional amendment.

I’m not sure what to make of this, but the ending is good.

Thanks to How Appealing for the link.

That’s the report–but that’s not what the facts seem to indicate as noted by James Taranto:

The interview aired on “Nightline” some 90 minutes after the debate ended, and the bombshell turned out to be a dud. The supposed big revelation–that “he wanted an open marriage,” as she, not he, put it–turned out in context to be trivial.

As Mrs. Gingrich told the story, the then-speaker informed her over the phone that he wanted a divorce. “I said to him, ‘Newt, we’ve been married a long time.’ And he said, ‘Yes. But you want me all to yourself. Callista doesn’t care what I do.’ ”

“What was he saying to you, do you think?” asked interviewer Brian Ross.

Mrs. Gingrich: “Oh, he was asking to have an open marriage and I refused.”

By her account, he first asked for a divorce. She protested, and he made clear that he was unwilling to give up his then-mistress. It’s unclear from Marianne Gingrich’s account whether Mr. Gingrich actually offered to remain married in exchange for tolerance of his infidelity, or if this was merely her inference.

In either case, there is an enormous difference between offering such an arrangement as a “compromise” to a spouse who does not wish to divorce, which is what Mr. Gingrich appears to have done, and flat-out asking for an open marriage. Neither reflects well on him, but the former is within the normal range of cruel and confused behavior during a breakup, whereas the latter is, at least by American standards, deviant.

Note first that Gingrich never proposed having an “open marriage”–that’s the ex’s characterization.  And it doesn’t seem accurate to me either.  It looks like what Gingrich told her is (1) I’m in love with Callista, (2) I would like a divorce, (3) that he was planning on remaining with Callista regardless of whether she granted him a divorce, and (4) it is ambiguous (to me) what “Callista doesn’t care what I do” it could reasonably interpreted that Callista would tolerate infidelity or it could also reasonably interpreted that he was saying that Callista didn’t care whether he got a divorce or remarried (again recall this is the ex’s characterization of a conversation a long time ago and what was actually said between those two meanings would require a lot of nuanced parsing).  One could use a lot of terms to describe that set of facts (none of them flattering) but “he was asking to have an open marriage” isn’t how I would characterize it nor do I think most people would characterize it that way.  Especially because, as Taranto notes, the use of that term in the United States connotes deviancy such as swinging with multiple sex partners, rather than a long-term extra-marital affair.

To which I’ll add that given the facts as they appear to be and that the inflammatory term was provided by the ex, not by Gingrich, I think he was justified to berate John King for giving credence to the story–and I would say the interpretation that he “asked for an open marriage” is so inaccurate to actually be false (although others might disagree).

It should be obvious that I am not defending Gingrich’s behavior but I’ll say that explicitly just to make sure.  I also think that character issues such as this are not necessarily out of bounds for the media because they matter to some voters.  I’m just saying that this is an exceedingly dubious characterization of the story, which is not nearly so deviant as reported.

In his thoughtful post, Orin says he would support striking down the individual insurane mandate on federalism grounds if the Supreme Court provided a “genuinely principled or workable doctrine to justify” its decision. “[I]f we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed. . . .” Of course, he admits that his cross-cutting considerations are “competing” and therefore difficult to satisfy. Indeed, he characterizing satisfying them all as a “pipe dream.”

But I think there is an existing constitutional doctrine already limiting the commerce power of Congress that does satisfy most of Orin’s competing considerations: the doctrine established by the Court in New York v. United States (1992) in an opinion by Justice O’Connor that bars Congress from commandeering state legislatures by mandating that they enact laws.  New York has been widely accepted and applied without raising the sort insuperable line-drawing problems that concern Orin, and the underlying noncommandeering principle has been extended to bar commandeering of state executive branch officials (in Printz v. United States (1997) in an opinion by Justice Scalia) and the state judiciary (in Alden v. Maine (1999) in an opinion by Justice Kennedy). This line of cases is now 20 years old and considered well settled. Congress has been able to legislate quite extensively without running afoul of the prohibition on state mandates (though the Medicaid requirements of the Affordable Care Act are now testing the boundaries of this structural constraint). So the noncommandeering principle as applied to states seems to satisfy Orin’s Burkean concerns.

Notice that, in each of these cases, the Congress was purporting to exercise its power to regulate interstate commerce under the Commerce Clause, and the Court did not question that this was indeed the legitimate end or purpose of the challenged legislation. What was at issue was the means that Congress used to effectuate this end. In Printz, the government justified its choice of means under the Necessary and Proper Clause. Writing for the Court, Justice Scalia did not question the measure’s necessity, but concluded that the means employed was “improper.” In this respect, Justice Scalia’s decision in Printz is quite different than his concurring opinion in Raich that solely concerned the necessity of the prohibition of home-grown marijuana in states that authorized its possession and use. In Raich, no one questioned the propriety of the means that Congress had used to effectuate its commerce power. Furthermore, in none of these noncommandeering cases was this restriction on the propriety of the means chosen to effectuate the commerce power based on the protection of “liberty” in Due Process Clause of the Fifth Amendment. Instead, it was based on the “structural” principle of limited state sovereignty that the Court concluded was presupposed by the Tenth and Eleventh Amendments. While states may be regulated in how they conduct their affairs by, for example, barring them from engaging in racial or sex discrimination, and they may be barred from certain activities altogether, they may not be “mandated” to enact legislation, or enforce federal law.

Of course the obvious objection to applying the noncommandeering doctrine in the ACA challenge is not Burkean, but legal:  it is individuals and not the states who are being commandeered by the Affordable Care Act, so the existing noncommandeering doctrine does not apply. Yet the principal textual basis for the decisions in New York and Printz was the Tenth Amendment that reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Tenth Amendment, therefore, protects popular as well as state sovereignty. Indeed, it protects them equally. (The Virginia legislature initially refused to ratify the Tenth Amendment precisely for this reason.)  Requiring citizens to “consent” to contracts is very much the same as requiring states to enact legislation. As the famed contracts scholar Lon Fuller wrote, the “power of the individual to effect changes in his legal relations with others [by entering contracts] is comparable to the power of a legislature. It is, in fact, only a kind of political prejudice which causes us to use the word ‘law’ in one case and not in the other. . . .”

The principle that the people may not be commandeered is reflected in several other constitutional provisions. The Third Amendment bars the commandeering of the people’s houses to quarter the military during peacetime. (“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”) The Fifth Amendment bars the commandeering of private property. (“nor shall private property be taken for public use, without just compensation.”) The Fifth Amendment also stipulates that no person “shall be compelled in any criminal case to be a witness against himself.” And the Thirteenth Amendment bars the commandeering of a person’s labor by private parties or by the government itself (“Neither slavery nor involuntary servitude . . . shall exist within the United States”).

Of course like every legal principle, there are exceptions to the noncommandeering principle. Soldiers may be quartered in private homes in wartime if authorized by law. Private property may be taken “for public use” provided “just compensation” is made.  Involuntary servitude may be imposed “as a punishment for crime whereof the party shall have been duly convicted.” In addition, the people may be “commandeered” by the federal government to serve in the military, to file federal tax returns, to serve on juries in federal court, and to serve on a posse comitatus.  The first of these exceptions, however, was expressly grounded on what the Supreme Court characterized as “the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation. . . .” Likewise, the other duties can be considered duties of citizens owed to the government itself.  Moreover, none of these duties of citizenship have ever been associated with the commerce power.

While the existence of exceptions does make line drawing more difficult, this is pervasive in all of law. And the historical exceptions to the principle against commandeering the people are all specifically or narrowly defined and deeply rooted in the nation’s traditions, which is exactly the “conservative” criteria by which the Supreme Court defines exceptions to legislative powers on behalf of individual liberty under the Due Process Clause. So the relevant question is whether a duty of citizenship to buy private insurance is deeply rooted in the nation’s tradition? Or more broadly, is there “a supreme and noble duty” of American citizenship to do anything that Congress in its discretion deems it necessary to its regulation of interstate commerce?  Analyzing a claimed “duty” of citizenship the way the Supreme Court now analyzes claims of liberty would yield a ready answer.

Of course, although the noncommandeering principle is based on both the text of the Constitution (as just described), its application in this case would be “novel.” But this is due entirely to the novelty of the individual insurance mandate. Simply because the mandate is literally unprecedented, so too would be any doctrine directly addressing it, however fundamental the principle being effectuated. Printz too considered a “novel” claim of power to control state executives, requiring the identification of a new rule of law. Yet, as Justice Scalia wrote, “if . . .earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was thought not to exist.”

Barring the government from commandeering the people by imposing economic mandates upon them would not affect any other law ever enacted by Congress because such mandates are unknown in our history. Such a ruling would not bar Congress from using its tax powers when it has the political will to do so (subject, of course, to whatever doctrines now limit that power).  Such a ruling would not bar states from exercising such a power if it was authorized by a state’s constitution (subject, of course, to other constitutional limitations on state powers). Such a ruling would only require the conclusion that, just as the Constitution did not delegate to Congress the power to commandeer state legislatures as a means of exercising its commerce power, neither did it delegate the power to commander the people as a whole to enter into contractual relations with private companies.  In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.

I’m pleased to report that my colleagues in the Mayer Brown LLP Supreme Court and Appellate Practice Group — with which I’m a part-part-part-part-time Academic Affiliate — were named one of the Appellate Groups of the Year by Law360.com. It’s a very well-deserved and hard-earned honor. [UPDATE: I'm afraid I originally erred by saying we were named the one such group -- a Mayer colleague just noted to me that we shared the honor (which is indeed titled "Appellate Group of the Year") with Jones Day, O'Melveny, Greenberg Traurig, Gibson Dunn, and Proskauer Rose. My apologies for the mistake.]

Forget Newt’s problems; the real GOP scandal is Grover’s.

I, for one, think Orin’s post below on Golan v. Holder is pretty funny. The Pacific Legal Foundation’s Tim Sandefur, however, is not amused and offers a substantive response here.

Pardon the parochial posting, but I wanted to congratulate two recent graduates of GW Law (where I teach) for accepting offers to clerk for Justices at the United States Supreme Court starting this coming summer. Mark Taticchi ’10 will be clerking for Justice Kennedy, and Ryan Watson ’07 will be clerking for Justice Alito. In the last six years, since the beginning of the Roberts Court, GW Law grads have obtained clerkships from each of the five Republican-appointed Justices.

You’re no doubt familiar with this Term’s Supreme Court case involving a constitutional challenge to an “unprecedented” recent federal law. According to the challengers, the new statute exceeds Congress’s Article I power. Although Congress had long regulated the relevant kind of activity for economic reasons, for the first time it tried something new. Specifically, It tried to force people who were outside the zone of that activity to come back into it and face regulation (and potential penalties) under federal law.

According to the challengers, this unprecedented step simply goes to far and exceeds Congress’s limited powers. Once people are in the zone of freedom outside the scope of federal power, they argued, Congress cannot take the unprecedented step of forcing them back into being regulated by federal law.

Initially, this argument struck many as unlikely to succeed. But prompted in part by the advocacy of a prominent law professor, it became seen by some as serious and mainstream. To be sure, there were precedents that pointed the other way. Indeed, the law professor had himself argued a prior case that raised some similar issues a few years ago, and in that case the Supreme Court had rejected the challenge. But the challengers had a way of reading that earlier precedent (and others) in a way that they felt supported their claim and opened the door this time. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.

That’s the case, anyway. I’m sure you’re all familiar with it. Now let me make a prediction. This coming summer, looking back on the current Supreme Court Term, analysts will report that the Supreme Court rejected the challenge and upheld the law as within Congress’s power. According to the Court’s decision, Article I “empowers Congress to determine the . . . regimes that, overall, in that body’s judgment, will serve the ends” of Article I’s grants of power. Nothing in the text of Article I suggests the distinction that the challengers attempted to draw, the Court will note. And the challenge therefore was doomed under the rational basis test: Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result. The majority opinion will conclude:

[This statute] lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not.

Two Justices will dissent, one of which is Justice Alito.

How can I be so confident in my prediction? Because the Supreme Court handed down its decision on Wednesday, in Golan v. Holder.

I’ll be speaking at Temple Law School about Rehabilitating Lochner tomorrow at noon, with commentary from Professor Robert Reinstein. The announcement is here. The event is free and open to the public, and according to the announcement, there will be “Free Jimmy Johns.”

Today’s U.S. Google query page has the name blacked out, and a line under the search bar that says, “Tell Congress: Please don’t censor the web!.” I suspect that it makes this among the most widely seen political ads/editorials/statements in American history, at least setting aside statements carried in standard mainstream media programming on historic occasions. Does anyone have a good sense of the number of Americans who use Google on an average day?

The Supreme Court has handed down its opinion in Golan v. Holder, holding Congress has the authority to restore copyrights in this country that had had lapsed. The vote was 6-2, with a majority opinion by Justice Ginsburg. A very quick skim suggests it is largely a replay of Eldred v. Ashcroft from 2003.

All electronic devices must be turned off prior to takeoff. If you fly anywhere, you’ve almost certainly heard this message. This requirement was adopted for passenger safety, right? Perhaps. Some electronic devices, phones in particular, can cause problems with the plane’s equipment. But the rule applies across the board, even to iPads in “airplane mode” and Kindles. Does this make sense? Apparently not, as there is no technical or scientific basis for the ban on Kindles during takeoff. Nick Bilton explains:

I’ve spoken with the F.A.A., American Airlines, Boeing and several others trying to find answers. Each has given me a radically different rationale that contradicts the others. The F.A.A. admits that its reasons have nothing to do with the undivided attention of passengers or the fear of Kindles flying out of passengers’ hands in case there is turbulence. That leaves us with the danger of electrical emissions.

And what are the electrical emissions of a Kindle?

When EMT Labs put an Amazon Kindle through a number of tests, the company consistently found that this e-reader emitted less than 30 microvolts per meter when in use. That’s only 0.00003 of a volt.

“The power coming off a Kindle is completely minuscule and can’t do anything to interfere with a plane,” said Jay Gandhi, chief executive of EMT Labs, after going over the results of the test. “It’s so low that it just isn’t sending out any real interference.”

But one Kindle isn’t sending out a lot of electrical emissions. But surely a plane’s cabin with dozens or even hundreds will? That’s what both the F.A.A. and American Airlines asserted when I asked why pilots in the cockpit could use iPads, but the people back in coach could not. Yet that’s not right either.

It turns out the Kindle puts off about the same amount of electrical emissions as a portable shaver — and under the FAAs rules those are allowed during takeoff. So what explains the Kindle ban? According to one expert quoted by Bilton: “agency inertia and paranoia.”

I just learned this word a few days ago, so I thought I’d pass it along. What does it mean?