Judicial challenges to Texas' education funding system

Texas has been front and center - not always in a good way - regarding the constitutionality of education policy.

For consideration:

1973 - San Antonio Independent School District v. Rodriquez.
1981 - Plyler v. Doe.
1991 - Edgewood v Kirby.
2015 - Morath et al v. Texas Taxpayer and Student Fairness Coalition et al.

Texas is refusing to grant birth certificates to the children of illegal immigrants . . .

. . . and this will almost certainly be the next fight between Texas and the national government. Something else you can lay at the feet of the 14th Amendment. It also highlights conflicts between counties in the state and the state government.

For detail on the overall story click here:

- Children of Immigrants Denied Citizenship.
- Lawsuit: U.S. Citizen Children Denied Birth Certificates in Texas.

For background on the process since the lawsuit click on these. They are in roughly chronological order, elaboration to follow:

May 26 - Serna v Texas Department of Health Services filed.
July 22 - State Seeks to Dismiss Lawsuit Over Birth Certificates.
July 22 - Motion for dismissal filed.
July 23 - Texas Fights Suit After Denying Birth Certificates To Children Of Illegal Immigrants.

July 29 - Legal Experts Question State's Immunity Claim.
August 5 - Dallas County Drawn Into Birth Certificate Debate.
August 6 - County Judge Asks State to Resolve Birth Certificate Issue. 

August 25 - Mexican Government Files Brief in Birth Certificate Case.
September 3 - Judge Will Hear Birth Certificate Case Next Month.
October 2 - Judge Presses State on Birth Certificate Denials.
October 16 - Judge Denies Emergency Relief in Birth Certificate Case.

Texas refuses to issue birth certificates to children of undocumented immigrants

More conflict between Texas and the national government. And its a neat way to deal with the issue of birthright citizenship - not birth certificate, no citizenship. It also involves a lawsuit that could easily wind up in the Supreme Court allowing it to rule on whether birthright citizenship applies to the children of illegal immigrants.

- From the Texas Observer:

For nearly 150 years, the United States, under the 14th Amendment, has recognized people born here as citizens, regardless of whether their parents were citizens.

But Texas has other plans. In the last year, the state has refused to issue birth certificates to children who were born in Texas to undocumented parents. In May, four women filed a civil rights lawsuit against the Texas Department of State Health Services alleging constitutional discrimination and interference in the federal government’s authority over immigration.

- From NPR: Texas Fights Suit After Denying Birth Certificates To Children Of Illegal Immigrants.

An interesting immigration case is winding its way through a federal court in Austin, Texas: A group of mothers has filed suit against the chief of the state's Department of State Health Services Vital Statistics Unit, because it has refused to give their U.S.-born children birth certificates.

The issue here is not whether or not these children are U.S. citizens. They are and that's made plain by the 14th Amendment of the Constitution, which says most people born in the U.S. are automatically citizens.

The issue in this case is what kinds of identification Texas can demand of their undocumented immigrant parents to issue a birth certificate.

According to the complaint, Texas is refusing most forms of ID that undocumented immigrants would have access to. In one case, for example, the Vital Statistics office refused to a accept a matrícula or an ID card issued by a local Mexican consulate.

Under state law, Texas can also refuse to accept a foreign passport, unless it "bears a current U.S. visa."

The mothers claim that the state is discriminating against them because of their "immigration status and national origin."

On Wednesday, Texas Attorney General Ken Paxton asked a federal judge to dismiss the case, arguing that the federal judiciary did not have jurisdiction over this matter, because the state enjoys immunity and this involves state, not federal law.

What does "subject to the jurisdiction thereof" mean?

It's the qualifier in the opening sentence of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

The Federalist Blog explains what it means.

- Click here for the post.

It's worth reading in full, but this captures the basic argument:

Because the purpose of the Fourteenth Amendments first section was to end the denial of those fundamental rights that belong to all citizens by virtue of their citizenship under Article IV, Sec. II of the U.S. Constitution was imperative to first define citizenship of the United States. Otherwise, a State could refuse to recognize newly emancipated slaves as citizens by withholding the right to sue, make contracts, due process, purchase property, etc. Therefore, the Fourteenth Amendment acts to recognize all persons as citizens who do not owe allegiance to some other government when naturalized or born.

The last sentence is the kicker, and it applies to - for example - children born of foreign ambassadors and to members of an invading army. Not only are they not allegiant to the United States, they are not subject to its rules - though that's probably more true of the diplomats. Those who argue that the children of illegal immigrants should not be covered under 14th Amendment raise the question of allegiance, but there still remains the question of whether they are subject to the laws of the state. They are. So that complicates things.

A few facts related to birthright citizenship

As mentioned below, Donald Trump issued a position paper on immigration reform - click here for it - where he calls for, among many other things, and end to "birthright citizenship." Here's the text:

End birthright citizenship. This remains the biggest magnet for illegal immigration. By a 2:1 margin, voters say it’s the wrong policy, including Harry Reid who said “no sane country” would give automatic citizenship to the children of illegal immigrants.

As with most of what Mr. Trump says, its kicked up a dust storm which will apply to a few subjects we will cover in both 2305 and 2306 - anything related to the 14th Amendment really. Just so we know, this is the problematic part of the 14th Amendment - and it just happens to start the thing:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

It goes on to require the states to treat people equally before the law, but we will touch on that later this semester. Rather than link to the news stories regarding the controversy, it might be better to be clear about the controversies associated with the it. The Wikipedia on Birthright Citizenship in the United States is worth a look partially because it details what does and does not qualify one to be a citizen of the United States - besides being born in the US to two citizen parents - that's the easy way. The most helpful primer I've found is an NPR piece called 3 Things You Should Know About Birthright Citizenship.

- Click here for it.

It also links to a great piece written by the Congressional Research Service detailing issues associated with birthright citizenship.

- Click here for it.

Some highlights from the story - and things to tuck away for future lectures. I'll post a few related items separately.

1 - There are two types of birthright citizenship: one based on place of birth, one based on the citizenship of the parents. British common law - which governed the colonies - used the former. Meaning that the type if citizenship stated in the 14th Amendment has historical roots.

2 - Until the 14th Amendment, the states determined who was and was not a citizen. The U.S. Constitution mentions, but does not define citizenship, or its requirements. It makes no requirement on the part of the states either and would not until the 14th Amendment.

3 - The 14th Amendment was written to overturn the Dred Scott decision which denied citizenship to African Americans whether slave or free. They were also unable to take cases to court - which kicked Scott's lawsuit to the curb. It is commonly argued to be one of the key precursors to the Civil War.
- Wikipedia: Scott v. Sandford.

4 - The 14th Amendment was ratified in large part to over turn Scott v Sandford. It was ratified in 1868 and is a companion to the 13th and 15th Amendments, which were ratified in 1865 and 1870 respectively. All three significantly expanded the powers of the national government over the states - which is a topic we hit in various parts of both 2305 and 2306. One of these powers involved the national government telling the states who gets to be a citizen. This ties the concept of national citizenship with the concept of state citizenship.
- Wikipedia: Reconstruction Amendments.

5 - The Supreme Court first ruled on the meaning of the 14th Amendment in the case of US v Ark, which applied the language to a man born in San Francisco from Chinese parent, left the country and then was denied the ability to return. The Supreme Court ruled that he was a citizen based on its reading of the language of the amendment and that he had the right to return.
- Wikipedia: United States v. Wong Kim Ark.

6 - Birthright citizenship based on birthplace is very common in the counties of the western hemisphere while blood relationship is generally required in the rest of the world. The argument is that the people that live in the nations of the west are largely immigrant and are based on shared values. Older nations can trace themselves to shared ethnicity.

Oral arguments on same sex marriage bans heard in the Supreme Court.

We spent the early part of this week covering this in both 2305 and 2306, since it applies in different ways to each class. In 2305 - civil rights, the equal protection clause and the Supreme Court. In 2306 - federalism.

The case was Obergefell v. Hodges, and it forced the court to address two questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

As we discussed, this provides the court the first opportunity to consider whether the 14th amendment's equal protection clause applies to sexual orientation. They have yet to consider this issue. The states - including Texas - argue that they have the right to discriminate in this matter because the states have a legitimate interest in promoting pro-creation, among other things.

Commentators inferred from the questions asked that the judges were split on whether this was an appropriate reason to do.

For additional info:

- Audio of the arguments can be found here.
- Transcript for the argument in question 1 here.
- Transcript for the argument in question 2 here.
- The Wikipedia page.
- The Dangers of a Constitutional 'Right to Dignity'.
- The Here and Now of Same-Sex Marriage.
- Same-sex marriage is back in the Supreme Court. Here's what a ruling will mean.

The DOJ report on the Ferguson, Missouri Police Department.

The equal protection clause, along with the rest of the 14th Amendment, allows the national government the opportunity to review a variety of actions on the part of state and local governments.

Using the that authority, the Justice Department issued a report detailing such violations by the police department of Ferguson, Missouri.

- Remarks by the Attorney General.
- The DOJ Report.

Here's media coverage.

- Ferguson Police Routinely Violate Rights of Blacks, Justice Dept. Finds.
- Justice Department: Ferguson Police Biased Against Blacks, Scornful of Constitutional Rights.

Moore v. Dempsey and mobocracy

Mini 3's should prepare for finals questions related to the relative pros and cons of different systems of government (principally autocracy, oligarchy, and democracy). I pull a lot of material from the opening set of slides - Why do I have to take this class? You can expect to see maybe 5 - 10 finals questions from that set of slides.

As you'll note, the biggest suspicion the framers of the Constitution had about democracies was that they tended to turn into mobocracy - the fancy term is ochlocracy. The term is obviously biased. Who wants to be ruled by a mob? It can also refer to rule by a mass of people. The framers argued that these forms of government were unstable, and could lead to tyranny of the majority. A close reading of their comments reveals that they were also worried the democracies that were developing in the states under the Articles of Confederation were undermining their power.

One of their concerns was that an uneducated population could be persuaded to become violent by a demagogue - "a political leader in a democracy who appeals to the emotions, fears, prejudices, and ignorance of the lower classes in order to gain power and promote political motives." This could create the instability that could not only spell the end of the democratic republic they sought to establish, but also allow a numeric majority the ability to dominate a numeric minority.

This points out a tension between majority rules and minority rights that I try to highlight in key section of the class - it plays a key role in the design and role of the courts as well as the nature of the Bill of Rights.

Aside from pointing your attention in this direction, I'm writing this because as I was working on the notes for the Supreme Court and stumbled across the court case of Moore v. Dempsey which involves accusations that an Arkansas mob was preventing the criminal justice system from working in the neutral fashion we expect it to.

It seems to me to be a good example of mobocracy in action

Here are links for background on the case

- Moore v. Dempsey.
- Elaine Race Riot.
- Sharecropping.
- Progressive Farmers and Household Union of America.
- Robert L. Hill.

The incident appears to have begun when a group of African American sharecroppers met in order to develop a strategy for addressing grievances they had against the landlords they worked for. The meeting was interrupted by a group of white men, shots were exchanged (it was uncertain who shot first) and one of the white men was killed.

The links can give you detail on what happened next (lots of violence), but one of the eventual results was a trial process dominated by the majority white population. The rights of the African American defendants were not recognized, which raised issues that ultimately led the case to the U.S. Supreme Court.

The justices would rule that the national government had the power to compel state courts to provide due process guarantees for criminal defendants, especially if the process was tainted by the a dominant mob.

Click here for the decision.

From ScotusBlog: Court denies gun rights cases (UPDATED)

ScotusBlog's Lyle Dennison tries to explain why the Supreme Court decided to not hear the Second Amendment cases we've been discussing in class - the ones that were intended to get the court to expand the right to keep and bear arms for self defense outside the home.

Remember that two of these cases involved expanding access to guns to 18, 19 and 20 year olds. The court apparently see no reason to even consider the argument. I'm not sure whether this should be considered a statement about attitudes towards the Second Amendment or the Fourteenth Amendment's applicability to age discrimination. Clearly the young can still be discriminated against when it comes to gun purchases - as it can with alcohol purchases.

- Click here for the article.

The Supreme Court refused on Monday, as it has done repeatedly in recent years, to settle the issue of whether Second Amendment rights to have a gun extend beyond the home. The Court, without comment, denied three new petitions — two filed by the National Rifle Association — seeking clarification on the scope of an individual’s right to have a gun for personal self-defense. In other orders, the Court did not accept any new cases for review, although it did hold over a number of cases it had examined for potential review.

Since the Court first ruled nearly six years ago that the Second Amendment protects a personal right to have a gun, it has issued only one further ruling — expanding that right so that it applies nationwide, to state and local gun control laws, as well as to federal laws. But, without exception, the Justices have turned aside every potential sequel, essentially leaving it to lower courts to continue to sort out variations on the right.
One thing seemed clear from the denial of review of two of the new cases, the NRA’s challenges: the Court is not, as yet, ready to stop lower courts from creating an entirely new group in society with less than full gun rights. In those cases, it was youths aged eighteen to twenty years old.

One petition — NRA v. Bureau of Alcohol, Tobacco and Firearms — was a challenge to the part of a 1968 law barring licensed gun dealers from selling handguns to those in that age bracket. The other case — NRA v. McCraw — was a challenge to a series of Texas laws that generally barred individuals in that age bracket from qualifying for a license to carry a handgun in public, outside the home.

In separate rulings in those cases, the U.S. Court of Appeals for the Fifth Circuit raised doubts about whether individuals in that age group are entitled to any protection under the Second Amendment, on the theory that the Supreme Court had upheld gun rights only for “responsible” individuals.

While the Supreme Court’s denial of review of those petitions was not explained, it cannot be said for sure that it agreed with the lower court’s view, but that view does prevail for the time being.

The third Second Amendment case denied review on Monday was Lane v. Holder, an attempt to get the Court to clarify when gun purchasers have a legal right (“standing,” in a technical sense) to go to court to challenge federal restrictions on gun buying. At issue is a provision of a 1968 law barring all interstate sales of guns except through federally licensed gun dealers, and whether purchasers can sue to challenge that limitation.

Attorney General Eic Holder announces that the federal government will begin treating same sex and heterosexual couples the same

This development applies to a variety of topics we cover in 2305. One is civil rights, because it involves equal protection before the law as stated in the 14th Amendment. Another is the Supreme Court since it is up to the court to determine what the equal protection applies to and if this includes sexual orientation, which it did so in United States v. Windsor. And another is the separated powers and checks and balances since the executive branch is essentially responding to the implications of United States v. Windsor, a major court case of last year that gave some recognition to same sex marriages. Finally, this also applies to the bureaucracy's rule-making power. The Justice Department seems to be making these decisions on its own, based on the authority already granted to it.  There's also an element of interest group and electoral politics thrown into the mix.

Here's background from the New York Times:

The federal government will soon treat married same-sex couples the same as heterosexual couples when they file for bankruptcy, testify in court or visit family in prison.

Attorney General Eric H. Holder Jr. was preparing to issue policies aimed at eliminating the distinction between same-sex and opposite-sex married couples in the federal criminal justice system, according to a speech given at a Saturday event organized by a prominent gay-rights group.

“In every courthouse, in every proceeding and in every place where a member of the Department of Justice stands on behalf of the United States, they will strive to ensure that same-sex marriages receive the same privileges, protections and rights as opposite-sex marriages,” Mr. Holder’s said.

The changes were set in motion last year when the Supreme Court declared it unconstitutional to refuse federal benefits to married same-sex couples, a ruling that Mr. Holder supported.

Gay-rights advocates welcomed the changes but had hoped Mr. Holder would use his address before the Human Rights Campaign to announce that the president would sign an order prohibiting federal contractors from discriminating based on sexual orientation.

ScotusBlog provides more detail about the rationale behind the decision:

This effort, he told a dinner gathering of the Human Rights Campaign, a gay rights advocacy group, is intended “to give real meaning” to the Supreme Court’s decision last June in United States v. Windsor, striking down a part of the federal Defense of Marriage Act that denied federal marital benefits to legally married same-sex couples.

He did not spell out in full all of the measures his department will take, but did provide a few details on these initiatives:

** Each spouse in a same-sex marriage will gain the right in civil and criminal cases in court to decline to give testimony against the other spouse — the so-called “marital privilege” that is an exception to compelled testimony. That will apply even in states that would not extend the same right to same-sex couples under state law.

** In bankruptcy cases, same-sex couples will be allowed to file jointly for relief from their debts, some debts owed by one spouse or former spouse to another will not be nullified (“discharged,” in legal terms), and domestic support obligations — such as alimony owed to a former spouse — will have to be paid.

** Inmates in federal prisons who are married to a same-sex spouse will have equal rights and privileges, including visitation rights, inmate furloughs to be with a spouse during “a crisis,” a right of a spouse to be escorted to the funeral of an inmate spouse who dies, protection for letters and other communications between spouses, and early release of an inmate from a sentence or a reduction in sentence to allow the inmate to be with a spouse who has become incapacitated.

** If a benefits program is run by the Justice Department — for example, compensation for a spouse’s exposure to radiation and for the loss of a spouse during the terrorist attacks of September 11, 2001 — same-sex couples will become entitled to those benefits.

** If spouse is or was as a police officer, firefighter, or other public safety officer and is killed or gravely injured in the line of duty, the surviving spouse will receive death benefits if the spouse dies and will receive educational benefits.

It does not appear that any of those guarantees of rights or benefits would add to what married same-sex couples had won in the Supreme Court’s Windsor decision, because the part of that law struck down by the Court imposed a ban on equality for same-sex couples in every federal program or activity.

But the new moves by Holder, and similar equality initiatives that a spreading variety of federal agencies have already adopted, are designed to translate that sweeping Court victory into everyday reality.

What does the 14th Amendment say about public debt and why?

We already spent time in 2305 discussing Section One of the 14th Amendment - which established national citizenship and contains the equal protection clause among other things - but Section Four contains language which might apply to the current standoff:

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Why is it here? It has to do with the politics following the Civil War once the southern states were allowed to send representatives back to Congress. What consequences would follow?

The threat of debt default and its impact on national security was very much on the minds of those who drafted the Fourteenth Amendment to the Constitution. The historian Franklin Noll has explained how representatives of the former Confederate states, now back in Congress, were highly disinclined to tax their constituents to pay the debts of the Civil War’s victors – the Confederate debt was repudiated, only the Union debt was repaid. Consequently, the threat of default was a very real one in the immediate postwar period.

From the abstract of Noll's article:

From 1865 to 1870, a crisis atmosphere hovered around the issue of the massive public debt created during the recently concluded Civil War, leading, in part, to the passage of a Constitutional Amendment ensuring the “validity of the public debt.” However, the Civil War debt crisis was not a financial one, but a political one. The Republican and Democratic Parties took concerns over the public debt and magnified them into panics so that they could serve political ends — there was never any real danger that the United States would default on its debt for financial reasons. There were, in fact, three interrelated crises generated during the period: a repudiation crisis (grounded upon fears of the cancellation of the war debt), a repayment crisis (arising from calls to repay the debt in depreciated currency), and a refunding crisis (stemming from a concern of a run on the Treasury). The end of the Civil War debt crisis came only when there was no more political advantage to be gained from exploiting the issue of the public debt.

From the Atlantic: If Congress Won't Raise the Debt Ceiling, Obama Will Be Forced to Break the Law

A look ahead at the looming fight over raising the debt ceiling.

Regardless of how the current shutdown crisis ends, it seems there will be a second debt-ceiling crisis two weeks from now. And the questions are flying again: Is the debt-ceiling statute unconstitutional? Can Obama “invoke” Section Four of the Fourteenth Amendment and assert authority to breach the debt ceiling to pay “the public debt of the United States, authorized by law”? Or can one party, decisively defeated in a nationwide election and controlling only the lower house of the legislature, threaten the full faith and credit of the United states — and the health of the world economy — in pursuit of its short-term partisan advantage?

The Supreme Court narrows the meaning of "supervisor"

Which makes it more difficult for harrassed employees to sue for discrimination.

In two decisions issued on Monday, the Supreme Court effectively made it harder for workers to prove that they had suffered employment discrimination.

One ruling narrows the definition of what constitutes a supervisor in racial and sexual harassment cases, while the other adopts a tougher standard for workers to prove that they had faced illegal retaliation for complaining about employment discrimination.

In both cases, the rulings were decided by a 5-to-4 majority, with the dissenting justices, the court’s four most liberal members, calling on Congress to fix what they said were overly restrictive rulings.

In Vance v. Ball State University, in which an African-American worker accused her supervisor of racial harassment, the court held that the person she accused was a co-worker and not a supervisor — a distinction that requires a higher burden of proof for the plaintiff’s employer to be found liable.

The majority decision, written by Justice Samuel A. Alito Jr., rejected the definition of “supervisor” advanced by the Equal Employment Opportunity Commission as someone authorized to take “tangible employment actions” or direct the employee’s daily work activities.

Click here for ScotusBlog material on Vance v. Ball State University.

From the Huffington Post: North Carolina May Declare Official State Religion Under New Bill

Never mind that Establishment Clause, or the 14th Amendment.

From Bruce Bartlett: The Politics of the 14th Amendment and the Debt Limit

The 14th Amendment contains language that some argue secures the national debt from political gamesmanship - the sort of thing that happens when battles over raising the debt ceiling arise. The full faith and credit of the US is paramount. But some argue that is not the case. Mr. Bartlett tries to debunk that argument by reviewing the history of Section 4 of the 14th Amendment. He argues that this provides a constitutional safeguard for debt service:

The purpose of the debt provision of the 14th Amendment was to say that national debt was beyond the realm of politics. In the words Jack Balkin, a Yale law professor: “It was stated in broad terms in order to prevent future majorities in Congress from repudiating the federal debt to gain political advantage, to seek political revenge or to try to disavow previous financial obligations because of changed policy priorities.”

Republican threats to hold the debt limit hostage to their agenda today present precisely the sort of political situation contemplated by the authors of the 14th Amendment.

US to hit debt ceiling New Year's Eve

From the Washington Post:

The U.S. government will hit the $16.4 trillion federal debt limit on Monday and turn to “extraordinary measures” to continue borrowing, the Treasury Department said Wednesday, beginning a countdown until Congress either passes legislation to allow for more borrowing or the government defaults on its debt.

Treasury Secretary Timothy F. Geithner said in a letter to senior lawmakers that the Treasury would begin to undertake “extraordinary measures” in order to forestall default. Geithner said the measures could create about $200 billion in additional funding available to the government – giving Congress two months before it must raise the debt limit.

More from The Hill:

Under normal conditions, that would buy policymakers about two months to haggle over the debt limit before an increase would be required, Geithner said. The last time the government reached its debt limit, in May 2011, Treasury’s measures delayed the need for a debt-ceiling increase until August.

But the uncertain fate of the nation's tax and spending policies in the talks over the fiscal cliff has clouded Treasury’s calculations, Geithner said.
If policymakers do not strike a deal and the U.S. goes over the fiscal cliff, the combination of tax hikes and spending cuts is expected to push the U.S. economy into a recession.

Going over the cliff would actually buy Congress more time to strike a debt-limit deal, since the increased revenue and reduced spending would reduce the need for the government to borrow funds, Geithner said.

Lawmakers will get a more precise timeline on the debt limit once the policy outlook clears, Geithner said.

Click here for some Q and A about the debt ceiling, which is defined as the: statutory limit on the amount of U.S federal debt held by the public and the government's own accounts. The debt ceiling became law with the Second Liberty Bond Act of 1917, which helped finance the United States' entry into World War I.
The Congressional Research Service provides a nice history of the debt ceiling - a shorter one can be found here. Click here for the Wikipedia page about the most recent debt ceiling  crisis in 2011.

In recent years, fights over spending in general have been waged over the level of the debt ceiling. It has been seen by some as another tool for restraining spending. Others argue that not raising the debt ceiling undermines the ability of the federal government to meet obligations that it has already committed itself to when it adopts a budget.

This has led to an argument that the the debt ceiling is unconstitutional because it violates the 14th Amendment's requirement that the credit of the US be maintained. The Obama Administration reportedly does not buy this argument.

Is the debt ceiling unconstitutional?

As we come close - again - to the debt ceiling, questions are being raised - again - about whether the debt ceiling is constitutional. Can Congress - after it has authorized spending - refuse to provide those funds?

Here's an argument that they cannot, and that doing so violates the 14th Amendment, but the issue gets complicated:

Section 4 of the Fourteenth Amendment provides that "the validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." Its purpose was to prevent Southern Congressmen and Senators from trying to hold payment of the nation's debts hostage in order to get their way on Reconstruction policies. The point of Section 4 was to put this sort of hostage-taking beyond ordinary politics. The framers of the 14th amendment did not want future politicians to threaten to destroy the country's finances by refusing to pay the country's debts in order to win political concessions from their opponents. After all, once politicians did so successfully, they would try it over and over again and it would become a normal feature of politics. That is precisely what we are seeing now.

If Congressional Republicans are threatening to let the nation to default on its debts if Obama doesn't agree to their demands, they are violating the Constitution. And the president should call them out for such an outrageous demand. But does that mean that the president can raise the debt ceiling himself to remedy the violation?

Not so fast. Article I, section 8 of the Constitution gives Congress, not the president, the authority to borrow on the credit of the United States. Even so, under section 4 of the Fourteenth Amendment the president has an independent constitutional obligation not to allow the validity of the debt of the United States to be put into question. That means, at the very least, that the president must make sure that interest payments continue on existing federal bonds and similar obligations. He must assure bondholders that they will continue to get paid even after the debt ceiling is reached.

If the president follows his constitutional obligations, then some government operations will not get funded because payments to the bondholders must come first. That means a partial government shutdown, with more and more of the government closed as the president continues to pay the bondholders. 

Was the 14th Amendment meant to be color-blind?

Here's a great argument that it was not, and that legislation passed around the time the 14th Amendment was ratified - the 1866 Freedmen's Bureau Act - explicitly intended to provide extra opportunities to the recently freed slaves. This might potentially buttress arguments in favor of affirmative action today.

The author points out that this is an originalist argument, which conservatives tend to employ in other areas, but not here. The author thinks the conservatives are mimicking the liberal tendency to read the Constitution in moral terms, which allows for flexibility in interpretation.

Can anyone explain "congruent and proportional" to me?

A good question from a 2301 student wrestling with this week's question on Coleman v. Maryland. The plurality decision in the case refers to this rule in its decision that Coleman's suit against Maryland - in federal courts - could not go forward. I'll try to provide a reasonable answer below. I also advise that you read the following article in the NYT for background.

First, "congruent" means the same as, and "proportional" means corresponding to. Here's a specific definition of the test from Wikipedia: "all legislation enacted under section 5 of the Fourteenth Amendment must be "congruent and proportional" to the unconstitutional harm it seeks to remedy." Congress can't create a right and use its enforcement powers to impose it on the states. Remember that the 14th Amendment provides the national government the ability to negate state actions that deny equal protection to "persons within its jurisdiction." Section 5 states the following: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." For more info here read: Congressional Power of Enforcement.

As I understand it, the congruent and proportional test is a way to determine what enforecement mechanisms are and are not appropriate. Recently, it has been used often to determine whether civil remedies (lawsuits against the states in federal courts) are appropriate given the violation claimed by a litigant. Was someone denied a constitutional right - if so the suit goes forward - if not the suit is denied. So this test is tightly connected to the question of state sovereign immunity.

The lawsuit under review in US v. Morrison failed the test and was denied, but those reviewed in Tennessee v. Lane and Nevada v. Hibbs passed it, so they were upheld.


Second, this is an example of test that the Supreme Court establishes from time to time to not only justify a specific decision, but to it in a way that provides a (possible) guideline for future courts to rule on similiar cases. Other examples include the separate but equal doctrine, and the Lemon Test. If you feel ambitious you may want to read through this argument that the court is increasingly reluctant to establish such tests, and a comment here.

Third, the congruent and proportional test was established in the case of City of Boerne v. Flores. As it turns out - fortuitously - Boerne was a reaction to the passage of the Religious Freedom Restoration Act, which itself was passed in reaction to the Smith case we discussed earlier regarding peyote. This was the subject of a previous written assignment as you well know (or should know). RFRA attempted to revive a still different test - the Sherbert Test - which among other things stated that a compelling state interest must be furthered whenever a sincere religious belief is violated by the government.

The decision in Smith changed this rule and made religious liberty subject to generally applicable laws. In RFRA, Congress attempted to revive the more stringent standard, but the Boerne case allowed the court to strike that down - and in doing so they reminded Congress that the power to interpret the Constitution belongs to the court.


Finally, this test is controversial. Not everyone on the Supreme Court abides by it, or has the same attitude towards what rights may or may not exist beyond those that are clearly listed in the Constitution. In this case the question has to do with the extent of gender discrimination. This is a topic I hope 2301s are very familiar with by now.

I hope this review helps. Don't get too bogged down in this nuance as you complete the assignment.

Feeling ambitious? Read this: Congruence and Proportionality for Congressional Enforcement Powers: Cosmetic Change or Velvet Revolution?

What Is The Basis For Corporate Personhood?

An interview from NPR on how corporations came to be considered "persons" under the law.

A snippet - note that the idea comes from the equal protection clause of the 14th Amendment:

WITT: Well, the law has treated corporations as what some lawyers call metaphysical persons. That is, they're persons for some purposes and they're not persons for others.

BLOCK: What sorts of purposes then would apply here?

WITT: Well, for example, a corporation can be prosecuted for a crime, which is something that usually only persons can be prosecuted for. But on the other hand, corporations get rights. They get rights to contract. They can't marry or run for office or vote, but they can speak. Things like that.

BLOCK: The legal doctrine, as I understand, it goes back to a Supreme Court case. It's in the late 19th century, Santa Clara County v. Southern Pacific Railroad. What was that case about essentially?

WITT: So, this is a case where the Occupy Wall Street protestors have distorted the details, but they really have it right in spirit. That was a case in which the Southern Pacific Railroad was protesting taxes that had been placed on it by California and by counties in California. And in that case, the chief justice of the United States Supreme Court, Morrison Waite, stood up in January of 1886 and said what pretty much everybody in the courthouse thought, which was that corporations were persons for the purposes of the 14th Amendment.

BLOCK: The 14th Amendment dating from right after the Civil War, the Equal Protection Clause is what we're talking about.

WITT: Yeah, the Equal Protection Clause applies to all persons. It provides that all persons have a right to equal protection under the laws. And that question wasn't controversial at the time. What mattered, really, was what happened later.
- More about the case in question: Santa Clara County v. Southern Pacific Railroad.
- Corporate personhood.