Several liberal Democratic members of Congress are claiming that President Obama’s decision to use force against Libyan dictator Muammar Gaddafi requires congressional authorization: A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on […]
Archive | Constitutional Law
Capitol Hill Panel on President Obama’s Decision Not to Defend DOMA
By Ilya Somin on March 15, 2011 10:05 pm in Constitutional Law, Constitutional Theory, Executive Branch, Gay Marriage
This Thursday, I will be taking part in a Federalist Society panel on President Obama’s decision not to defend DOMA in Court. Edward Whelan, President of the Ethics and Public Policy Center and prominent legal blogger for National Review, will be on the panel with me, and my colleague Neomi Rao will moderate. The panel […]
Why Obamacare mandate penalty can’t be a tax
My recent op-ed in the Orange County Register explains why. In short, the statute says it’s a “penalty,” not a tax, and United States v. Sonzinsky teaches that courts should not speculate that something which Congress calls a “tax” is really a “penalty”–or vice versa. Besides that, it’s not a consitutional tax because: 1. it’s not […]
Wisconsin Senate Does Not Need a 3/5ths Quorum to Pass Much of the Budget Bill
I have a new paper up on SSRN–Super Quorums Under the Wisconsin Constitution–that examines the constitutional three-fifths quorum requirement in Wisconsin. It applies only to particular kinds of fiscal bills, not to all bills that merely have a fiscal impact. Further, it has been interpreted extremely narrowly in the past. Indeed, there is a 1971 […]
Precedent for Presidential Refusal to Defend Statutes the Administration Believes to be Unconstitutional
By Ilya Somin on March 1, 2011 11:39 pm in Constitutional Law, Constitutional Theory, Executive Branch, Gay Marriage
Last week, I defended President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act, on the grounds that the administration has concluded that it is unconstitutional. Although I disagree with some of the administration’s specific legal arguments in this case, I think the president’s duty to defend the Constitution supersedes his […]
The Progressive-Conservative View of Judicial Restraint
By David Bernstein on February 26, 2011 11:50 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
From the U. Va. Fed-Soc blog on the student conference that took place this past weekend: Professor [Jeffrey] Rosen responded with a call to resist Professor Barnett’s libertarian interpretive approach and look to the traditional conservative model of judicial deference to the political process…. Professor Rosen proposed a framework of three divergent “conservative” approaches to […]
Do Presidents Have a Duty to Defend the Constitutionality of Laws they Believe to be Unconstitutional?
By Ilya Somin on February 23, 2011 11:45 pm in Constitutional Law, Constitutional Theory, DOMA, Executive Branch, Gay Marriage
The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that […]
The Compact Clause vs. the Multistate Tobacco Cartel
Over at Balkinization, guest blogger Michael Greve offers an excellent post explaining the Competitive Enterprise Institute’s pending cert. petition in a case challenging the tobacco cartel. In short, the 1998 Master Settlement Agreement for the lawsuits initiated by some state Attorneys General against the largest tobacco companies is a violation of the Compacts Clause. Article […]
Fed. Dist. Ct. enjoins South Dakota ban on concealed carry permits for legal resident aliens
Decision here. Not decided on Second Amendment or other RKBA grounds. Very straightforward application of existing doctrine on equal protection and legal aliens. In short, state (but not federal) discrimination against legal aliens is subject to strict scrutiny. There is an exception for “governmental functions” which involve discretion in self-governance of the polity–such as voting, […]
Waldman versus Waldman
By David Bernstein on February 7, 2011 10:38 pm in Constitutional Law, Health Care, Individual Mandate
Here are opposing views on the whether the Supreme Court should interpret the Constitution to limit government, or should defer to the elected branches. Both are from Michael Waldman of NYU’s Brennan Center. Waldman 1: Ultimately, America has grown stronger when active citizens, organized pressure groups, and accountable politicians wrestle with large policy challenges. The […]
Sandefur v. Amar
By David Bernstein on February 6, 2011 11:45 pm in Constitutional History, Constitutional Law, Health Care
I like and respect Yale Law professor Akhil Amar, but his op-ed on the decision invalidating the Obamacare individual mandate is not exactly his best work. Tim Sandefur has a full critique here, which I generally agree with. But what’s most disappointing about Amar’s piece is its rhetoric, which makes it hard to take his […]
“Health Laws of Every Description”: Obamacare and Original Meaning
By David Kopel on February 4, 2011 6:58 pm in Constitutional History, Constitutional Law, Federalist Society, Health Care, Individual Mandate, Necessary and Proper, Originalism, Supreme Court
Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland. Gibbons is certainly a good foundation for advocates of strong […]
Fisher v. Texas
By David Bernstein on January 20, 2011 9:26 pm in Affirmative Action, Constitutional Law, Racial Discrimination
As Ilya notes below, the Fifth Circuit has upheld the University of Texas’s racial and ethnic preference practices in Fisher v. Texas. There are a number of interesting aspects of Fisher. One is that the University of Texas-Austin had a very “diverse” class without using preferences. Under the university’s previous, race-neutral system, which included the […]
Fifth Circuit Court of Appeals Upholds University of Texas Affirmative Action Admissions Program
By Ilya Somin on January 20, 2011 2:49 am in Academia, Affirmative Action, Constitutional Law, Racial Discrimination
In yesterday’s opinion in Fisher v. Texas, the US Court of Appeals upheld a University of Texas affirmative action program in admissions, applying the Supreme Court’s 2003 decision in Grutter v. Bollinger, which held that racial diversity in higher education is a “compelling state interest” justifying the use of racial preferences to ensure that there […]
AALS Hot Topics Panels I Will be Speaking at this Week
For those who may be interested, I will be speaking at two “Hot Topics” panels at this week’s AALS faculty conference, both on Thursday, January 6. The first will be on “Ideological Diversity and Discrimination in American Law Schools,” along with John McGinnis (Northwestern), Bill Nelson (NYU), James Phillips (UC Berkeley), and panel organizer George […]