Archive | Constitutional Law

James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail

The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money

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Schuette v. Coalition to Defend Affirmative Action: Forgetting the Narrative

[See update below.
This term, the Supreme Court will decide Schuette v. Coalition to Defend Affirmative Action. The Sixth Circuit, in an en banc 8-7 opinion, invalidated a Michigan constitutional amendment, passed by referendum, that forbids racial preferences by government institutions, including public universities The court held that the amendment violated the Fourteenth Amendment’s Equal Protection Clause, because it put African American students who wish to lobby for affirmative action university preferences at a structural political disadvantage relative to other students who wish to lobby for other sorts of preferences, such as legacy preferences. The latter students need only go through ordinary legislative or regulatory processes, while the hypothetical black student needs to overturn a constitutional amendment.

There is a lot to criticize in the Schuette opinion, but I wanted to focus on a point that I haven’t seen raised elsewhere, but that I raise in a forthcoming article in the NYU Journal of Law & Liberty, which I will post a link to when its ready. The Sixth Circuit treats affirmative action preferences as if they are designed to benefit African American students, and thus making it more difficult for them to lobby for such preferences puts African Americans, as a class, at a political disadvantage. The problem is that the Sixth Circuit forgot the narrative. While the impetus for affirmative action in higher education among American elites is, in fact, primarily to pursue “social justice” for underrepresented minorities in general and African Americans in particular, the Supreme Court has consistently held that this is an illegal, unconstitutional rationale for affirmative action preferences.

Rather, under governing precedent, any use of race in admissions is subject to strict scrutiny, which could be overcome only if the relevant educational officials have determined that student racial and ethnic diversity “is [...]

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Neomi Rao, Guest-Blogging about Windsor, Dignity, Recognition, and Individual Rights

Prof. Neomi Rao (George Mason) has a very interesting essay on Windsor — one of the same-sex marriage cases — called The Trouble with Dignity and Rights of Recognition [UPDATE: link fixed], and I’m delighted to say that she’ll be guest-blogging about it for the next few days. Here’s a summary of the paper:

In United States v. Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act violated the Fifth Amendment. This Essay examines the unusual right to recognition that forms the basis of the Court’s decision and explains how such dignity rights have a problematic relationship to individual rights and to the structural protections of federalism. A right to recognition, standing alone, has never been part of our constitutional jurisprudence. To the extent that dignitary themes arose in previous cases, they were incidental to the finding of individual rights. I argue that there is good reason why recognition has not been afforded constitutional protection. Claims for recognition are only derivative of individual rights and cannot apply universally. Moreover, the dignity of recognition, because not an individual right, creates an unresolved tension with existing state laws that prohibit same-sex marriage — a tension between the dignity of recognition and the dignity of state sovereignty.

People interested in the subject may also want to read a response to Neomi’s paper, United States v. Windsor and the Role of State Law in Defining Rights Claims, by Prof. Ernie Young (Duke). [...]

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The New York Times Loves Arguendo

A few weeks ago, I posted about Arguendo, a new show by Elevator Repair Service Theater (ERS), which opened last night at the Public Theater in New York City. Arguendo is a sort of topsy-turvy dramatization of the oral argument in Barnes v. Glen Theatre, an important Supreme Court case about nude dancing and the First Amendment. As a board member of ERS and an advisor on this project, I am pleased to report that the New York Times loves the show. Per Ben Brantley this morning: “A cool, obsessive genius animates the ever more fevered proceedings of ‘Arguendo,’ the Elevator Repair Service’s foray into the hallowed mazes of American jurisprudence….” It is, he says, a “wittily inventive” show that “keeps growing richer and more insightful in the remembrance.” The review is here. Details and tickets are available here. [...]

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Conan the Librarian

The Library of Congress’s The Constitution: Analysis & Interpretation — a clause-by-clause treatise summarizing U.S. constitutional law and citing to relevant cases — is now out. (The URL is The PDF is huge; if it’s taking too long for you to load, go here and follow the link you need for the particular Article or Amendment. Thanks to Prof. Seth Tillman for the pointer. [...]

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The Biggest Democracy’s Bigger Death Penalty

India has just sentenced four men to death in the infamous Delhi rape/murder case. India has apparently ended an eight-year moratorium on executions last year, greatly altering the global capital punishment map. At the same time, it also passed a new rape law, which would allow for execution in aggravated cases (not necessarily involving minors) even when no death results. Thus India’s new law goes even beyond what was recently forbidden by the U.S. Supreme Court in Kennedy v. Louisiana.

The problem with determining constitutional law in reference to a “international opinion” and practice is that it keeps changing, and not in a constant direction. In Roper v. Louisiana, the Court famously found the practices of other countries relevant to the constitutionality of the death penalty. A few years later, in Kennedy v. Louisiana, the Court held the death penalty could not be constitutionally applied to child rapists (having given up execution for adult rape a while back).

In Roper, the Court found the countries that had executed juveniles in recent decades to be a motley mix of African and Islamic-law countries. But India is the world’s largest democracy, with Anglo-American legal traditions.

The more interesting point here is not about death penalty jurisprudence per se, but about the underlying assumptions about the reality and inevitability of human moral progress that underpins much of constitutional law’s “evolving consensus” discourse. Unlike in biology, norms and morales can evolve back.

[Of course, the death sentence is far from the end of the line for the Delhi rapists. There will be appeals, pardon requests, and the possibility of a last-minute stay, like the Indian Supreme Court gave this week to a father who beheaded his five daughters in an argument with his two wives.] [...]

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Upcoming Talk on Property Rights at Cato Constitution Day

Next Tuesday, Sept. 17, from 1 PM to 2:15, co-blogger Ken Anderson and I will be taking part in a panel at the Cato Institute’s annual Constitution Day symposium, which will cover the major decisions of the Supreme Court’s 2012-13 term.

My talk will focus on the Court’s important property rights decisions in Koontz v. St. John’s River Water Management District and Arkansas Game and Fish Commission v. United States. I will also briefly cover this case. Ken will cover the Court’s major recent international human rights law decision, Kiobel v. Royal Dutch Shell Petroleum.

Cato Constitution Day will also have panels covering other major recent Supreme Court decisions, including the affirmative action and gay marriage cases.

Free registration for the event is available here. [...]

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The Colorado Recalls Explained

Yesterday voters in Colorado recalled two State Senators. One result was not a surprise, and the other is a shock. Of course the votes are Second Amendment victories for the right to arms, but more fundamentally, they are Fourteenth Amendment victories for Due Process of Law.

Former State Senate President John Morse represented Colorado Springs, plus the somewhat hipster mountain community of Manitou Springs. While El Paso County is strongly Republican, the interior city of Colorado Springs has been center/center-left for years. Senate District 11 was carved to make the election of a Democrat possible, and it worked. Voter registration in SD 11 is about a third, a third, and a third among Democrats, Republicans, and Independents, with Democrats having the largest third and Republicans the smallest. Morse barely won re-election in 2010, and might have lost if not for the presence of a Libertarian on the ballot.

As the conventional wisdom expected, voter turn-out was relatively low. Morse was recalled by  51-49%. The conventional wisdom of Colorado politics had been that Morse would probably lose, but that the election would be tight, and there was a chance that he might win. As things turned out, Republicans turned out greatly in excess of their registration percentage, and that was probably the difference.

Both sides had hard-working GOTV programs, but apparently the Democrats did not succeed in convincing enough of their less-enthusiastic voters to vote. This is in contrast to 2012, when Obama won the district by 21%.

Pueblo, the largest city in southern Colorado, delivered the result that stunned almost everyone. For more than a century, Pueblo has been a Colorado stronghold of working-class union Democrats. Like most of southern Colorado, it has a large Hispanic population. Obama won Senate District 3 by 19% in 2012. In 2010, Democratic Senator [...]

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Former Solicitor General Seth Waxman to Participate in Elevator Repair Service Theater Benefit

Last week, I posted about the excellent avant-garde theatre company Elevator Repair Service and the upcoming world-premiere of their new show, Arguendo, at the Public Theater in New York City. Arguendo is a dramatization of the oral argument of Barnes v. Glen Theatre, an important Supreme Court case about nude dancing and the First Amendment.

As I mentioned in my prior post, there will be a special benefit performance on Sept 17th, followed by a post-show discussion with Amy Adler (NYU Law) and Jeff Toobin (CNN & The New Yorker).

I am now delighted to report that Seth Waxman, superb former Solicitor General of the United States, will also participate in the discussion.

After the discussion, there will be a party at my home.

Details and tickets are available here. [...]

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Additional Thoughts on the Draft Authorization for the Use of Military Force in Syria

Here are a few additional thoughts on the Obama administration’s draft authorization for the use of military force in Syria, beyond those I put forward in my last post.

First, as Jack Goldsmith and others have pointed out, the constraints on presidential power created by the resolution’s limitations on the range of objectives the president can pursue is partially undermined by the fact that the draft allows him to use force whenever “he determines to be necessary and appropriate” in order to achieve those goals. One can argue that the president can potentially use the resolution to justify the use of force against anyone anywhere in the world so long as he says doing so is “necessary and appropriate” for the purpose of combating the threat of Syrian WMDs. For example, he could argue that the resolution authorizes him to attack Russia or Iran on the grounds that their support of Assad has emboldened him and thereby made further use of chemical weapons more likely. At the same time, this is one of those cases where it may be wrong to read legalistic language too literally. In practice, it might be reasonable to read an implicit good faith and proportionality restriction into this language. For example, if it looks like the president is using this authority in a way that is pretextual, the resolution would not authorize that. In addition, regardless of the details of the text, it would be politically difficult for the president to use the resolution to start a massive war after having gotten it passed by telling everyone that he envisions only a very limited resolution. That said, I do think this part of the language is overly broad. If Congress votes to authorize the use of force at all, it should probably delete this [...]

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Thoughts on the Text of the Obama Administration’s Proposed Authorization to Use Military Force in Syria

Co-blogger Dale Carpenter rightly poses the question of what an authorization to use military force in Syria would actually authorize. The Obama Administration has just released the text of its proposed congressional resolution, which might help answer that question. Here is the most important part:


(a) Authorization. — The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to —

(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or

(2) protect the United States and its allies and partners against the threat posed by such weapons.

This wording is narrow in one sense, but very broad in another. It is narrow in so far as the purpose is limited to dealing with chemical weapons and other WMDs, as opposed to pursuing broader objectives such as the overthrow of the Assad regime. It’s broad, however, in the sense that it allows the president to use force against a wide range of possible adversaries, not just Assad and his government. For example, it is certainly broad enough to allow Obama to target the Syrian rebels if he determines that they have chemical weapons or are likely to acquire them soon. The radical Islamist terrorists among the rebels surely qualify as “terrorist groups or other state or non-state actors” that the resolution would allow the president to target if it seems likely that Syrian WMDs [...]

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What Will A Proposed Authorization for Military Force in Syria Authorize?

Now that the president has vowed to seek Congress’s approval even for what he promises will be very limited military action in Syria, an interesting question arises. What will the authorization authorize him to do? 

The president will want an expansive resolution, allowing him maximum flexibility to do what he thinks necessary to accomplish what he determines to be the goals of military action.  Skeptics on the right and left will push for a narrower authorization, carefully circumscribing his authority to a limited response to the use of chemical weapons by Syria.  Some of the issues that may arise relate to the purpose, scope, and duration of the intervention.  Will the authorization state the purposes of the intervention (punishment, deterrence, disabling the regime’s ability to use chemical or other forbidden weapons, protecting civilians, etc.) and then try to limit the authorization to those purposes?  How much flexibility will the president have to respond to unexpected developments, like a post-bombing retaliation by Syria against its neighbors or retaliation by terrorist groups or nations like Iran?  Will the authorization be sunsetted, or will it be temporally open-ended?  Will Congress attempt to select the type or magnitude of force that might be used by, for example, limiting it to air strikes rather than to the introduction of ground troops? 

As we’ve already seen in the run-up to this proposed intervention in Syria, the specter of the Bush era will hang over the debate.  After 9/11 there was some debate over the substance of the eventual Authorization for the Use of Military Force (AUMF).  The Bush administration wanted maximum executive power, including a specific provision authorizing the president to order military force within the United States itself.  While that language was ultimately omitted, the final version of the AUMF opted for breadth:

[T]he President

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Obama Will Seek Congressional Approval for Military Intervention in Syria

President Obama announced today that he will seek congressional approval for US military action against Syria in retaliation for the Assad regime’s use of chemical weapons [BUT SEE IMPORTANT UPDATE BELOW]:

President Barack Obama said that the United States “should take military action against Syrian targets” in a Rose Garden address Saturday. However, he said he would seek congressional authorization when federal lawmakers return from recess.

The president appealed for congressional leaders to consider their responsibilities and values in debating U.S. military action in Syria over its alleged chemical weapons use.”Some things are more important than partisan differences or the politics of the moment,” he said. “Today I’m asking Congress to send a message to the world that we are united as one nation.”

In previous posts (e.g. – here and here), I have argued that congressional approval is constitutionally required for anything more than an extremely small attack. In addition, congressional authorization would strengthen the political support for any intervention, and thereby increase the chances of success. So I very much welcome Obama’s decision to seek congressional authorization. This wise decision stands in sharp contrast with the administration’s approach to the Libya intervention in 2011, where Obama violated both the Constitution and the 1973 War Powers Act by failing to secure congressional authorization.

If Obama fails to get congressional authorization, that might damage US credibility. Obama would then have to retreat from his threat that the use of chemical weapons by Assad crosses e a “red line” that would result in military retaliation. But, as Charles Krauthammer suggests, such a setback would be less harmful than a small-scale strike that fails to achieve any real benefit because it is not enough to deter Assad from future atrocities or accomplish any other worthwhile goal.

Republican senators John McCain [...]

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VA Must Extend Benefits to Married Same-Sex Couples, District Court Says

In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status.  So far, in contrast to their almost open resistance to Lawrence v. Texas, lower federal courts are also reading the decision expansively.  Today, a district court in California granted summary judgment to a married lesbian veteran who was denied added disability benefits that would have been available if she had been married to a man, even though the denial did not rest on DOMA.  The brief opinion is here

The Department of Veterans Affairs had taken the position that Windsor struck down only DOMA, not the specific provision of federal law under which veterans’ benefits are determined and that independently defined a “spouse” as “a person of the opposite sex.”  38 U.S.C. Section 101 (c) .  The law stood, said the VA, until Congress changed it or a court struck it down as unconstitutional.  (The Bi-Partisan Legal Advisory Group withdrew its defense of litigation like this after Windsor.)

The district judge determined that, in light of Windsor, Title 38’s limitation of benefits to opposite-sex spouses was not rationally related to the federal government’s interests in promoting gender equality, expanding veterans’ benefits, ensuring that servicemembers reach their maximum potential, promoting unit readiness and cohesion, or enhancing recruiting and retention. 

Quite aside from its significance on the issue of same-sex marriage, one consequence of Windsor could be that federal courts are gradually accepting heightened scrutiny when it comes to discrimination against homosexuals.  A second possibility is that, apart from increased skepticism of anti-gay discrimination, Windsor will lead to a further erosion [...]

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Obama May Plan Only a Very Limited Intervention in Syria

In reaction to Britain’s refusal to take part in military operations against the Syria government, Obama administration officials are saying that the operation they plan is so limited that they won’t need much allied support:

President Barack Obama is prepared to act without Britain, officials said, noting that unlike U.S. involvement in the 2011 military operation in Libya, the options under consideration in Syria are smaller-scale and wouldn’t require a coalition to be effective.

“Here, what’s being contemplated is of such a limited and narrow nature that it’s not as if there’s a similar imperative for bringing in different capabilities from different countries,” a senior administration official said. “We believe it’s important that there be diplomatic support from key allies, and we think we’re getting that.”

If the operation is “limited and narrow” enough, it could obviate not only the need for British support, but also the constitutional requirement of congressional authorization, which only applies to offensive action large-scale enough to qualify as a “war” (setting aside the difficult question of the exact point at which a military engagement becomes big enough to be a “war.”) The problem is that a very small-scale action might not actually be enough to accomplish anything – especially if Assad and his government know in advance that a small-scale attack is all they have to worry about. If Assad believes that using chemical weapons and killing large numbers of civilians are necessary for him to stay in power, he’s unlikely to stop just because we hit him with a minor attack that he knows will soon end. If, on the other hand, Obama intends to launch a larger offensive should the small one fail, then both proper constitutional authorization and allied support would be desirable.

It’s hard for me to say whether [...]

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