From the Washington Post: Former top diplomats, tech giants blast immigration order as court showdown looms

More pushback against the president's immigration order.

- Click here for the article.

Fresh challenges to President Trump’s court-frozen immigration order took shape Monday with two former secretaries of state claiming the White House was undermining national security and nearly 100 Silicon Valley tech companies arguing it will keep the best minds from coming to America.

The powerful new voices were added with another legal showdown coming as early as Monday. The suspension of the order, meanwhile, has allowed those previously banned more time to try to reach the United States.

. . . A decision Sunday by the U.S. Court of Appeals for the 9th Circuit preserved a lower judge’s order to temporarily halt the ban — and based on a schedule the court outlined, the stop will remain in place at least until sometime on Monday. The Justice Department said it would not elevate the dispute to the Supreme Court before that.

. . . Hours earlier, a host of technology giants — including Apple, Facebook, Google, Microsoft, Netflix, Twitter, Uber — were part of a “friend of the court” legal brief by 97 companies opposing the Trump administration’s immigration order.

The brief claimed the order was a “significant departure” from U.S. immigration policies and “makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees.

. . . Vice President Pence said Sunday on NBC’s “Meet The Press” that White House officials felt that Trump was “operating within his authority as president, both under the Constitution and under clear statutory law.” Legal analysts have said the president has broad authority to set immigration policy, although civil liberties advocates have countered that the order essentially amounts to a discriminatory ban on Muslims that has no real national security purpose.

“We’re very confident that we’re going to prevail,” Pence said. “We’ll accomplish the stay and will win the case on the merits. But again, the focus here is on the safety and security of the American people.”

From the Chicago Tribune: Court says Consumer Financial Protection Bureau is unconstitutional

It's organization violates the separation of powers.

- Click here for the article.

A U.S. consumer watchdog agency that helped unravel the Wells Fargo & Co. scandal has an unconstitutional structure because it gives too much power to its director, a federal appeals court ruled Tuesday.

The court said the way that the Consumer Financial Protection Bureau is organized violates the Constitution’s separation of powers because it limits the president’s ability to remove the agency’s director, currently Richard Cordray, a Democrat and former Ohio attorney general.

The ruling, if upheld, would curtail the authority of an agency that has been opposed by the banking industry and some Republican critics.

They view the CFPB — established as part of the Dodd-Frank reforms after the financial crisis of 2008 and 2009 — as a thorn in the side of the industry and one that has overreached in its regulation of consumer financial matters.

“This is a good day for democracy, economic freedom, due process and the Constitution,” Rep. Jeb Hensarling, R-Texas, chairman of the House Financial Services Committee, said in a statement.

The law now states that the bureau’s director can be removed only “for cause,” such as neglect of duty. The court said that conflicted with the Constitution, which allows the president to remove executives for any reason.

Hensarling has proposed overhauling Dodd-Frank, including replacing the CFPB’s single director with a bipartisan, five-member commission. On Tuesday he called the CFPB “arguably the most powerful and least accountable Washington bureaucracy in American history.”

But consumer advocates and some top Democrats decried the court’s ruling, saying it opened the door to the prospect that the CFPB’s efforts could be weakened under increased political pressure from the White House and Congress.

The law creating the CFPB “carefully struck a balance between protecting the consumer bureau from politics and the (financial) industry’s political allies while ensuring it was accountable and had effective oversight,” said Dennis Kelleher, president of the consumer advocacy group Better Markets.

The court’s ruling is “damaging to American consumers” and “it’s going to embolden the industry that’s been trying to kill” the agency, Kelleher said.

The CFPB said it disagreed with the ruling by the three-judge panel of the U.S. Court of Appeals for the District of Columbia, and asserted that the ruling would not slow its efforts to investigate wrongdoing and seek enforcement actions.

- Click here for more from the ABA Journal.
- Click here for the decision.

A Matter of Interpretation: Federal Courts and the Law Antonin Scalia

One article on Scalia argues that this book marks "the high point of his intellectual influence across party lines." I offer it because the link to it in the Princeton University Press contains a statement that seem to succinctly explain his approach to interpreting the Constitution.

- Click here for the link.

We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim--"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal--good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative.

In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals.

From Randy Barnett: The Original Meaning of the Judicial Power

In a 2004 article, Barnett tackles the claims that the framers of the Constitution did not define judicial power to include the power of judicial review. It became common to think that the power originated with John Marshall's decision in Marbury v. Madison. Looking through the history of the time, Barnett argues that an originalist approach to the use of the terms suggests that the intent was for the judiciary to have that power.

Dual credit students might find this to be a helpful look at this approach to constitutional interpretation, and how lawyers and scholars still wrestle with the meaning of the Constitution.

- Click here for the article.

In this article, I intend to lay to rest any doubt that, at the founding, the judicial power of the United States included the power of judicial rzeview. I hope to refute any claims that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual “intentions” of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention and in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress. In short, I shall demonstrate once and for all that the original meaning of the “judicial power” in Article I, includes the power of judicial nullification.at least is.

Regarding Judicial Review

Be up on all your checks and balances - and anything related to the separated powers. Not all the checks and balances are written out in the U.S. Constitution, key among them is judicial review. Since there's a separate section on it, expect a few question related to it and its application.

Some trivia: The Supreme Court found 158 laws unconstitutional between 1803 and 2002. Click here for a list of them all.

I stumbled across a couple items which focus on issues and controversies associated with it judicial review. You might find them helpful as you prep for the final.

- The Supreme Court vs. Congress.

The author points out three categories of cases involving judicial review:

First, the Court has declared many federal laws unconstitutional because they infringe upon individual rights protected by the Constitution, particularly by the First Amendment.

A second category of cases involves the Court's function as arbitrator among the branches of government. One of the key protections of freedom in the Constitution is the structural separation of powers among the three branches. Congress must pass laws, the president must execute them, and the courts must interpret those laws. If one branch encroaches on the authority of others, there is a danger that such encroachment will upset the balance of power between them and increase the possibility of one branch dominating the others.

The third area involves the most questionable use of Supreme Court power. The Court assumes the power to say to Congress, not that it violated anyone's rights or that it passed a law that crossed the line that separated one branch of government from another, but simply that Congress lacked the power to act. States have the power to pass any law they choose (subject to both state and federal constitutional restraints). But when Congress passes a law, it must rely on specific grants of power contained in Article I, Section 8 of the Constitution.

- The Supreme Court and Congress.

This author suggests that laws struck down as unconstitutional are not necessarily completely nullified.

When most Americans read that the Supreme Court has used judicial review to strike down federal legislation, they usually understand the Court’s action as an invalidation of the legislation. In other words, the Court has undone the work of Congress and ended the life of the statute—kaput, poof, and it’s gone. It is not surprising that this would be the common reaction: it is how the Court’s power of judicial review is most commonly taught in high school, college, and even law school classes on the subject. However, what many deem to be conventional wisdom about the death sentence imposed on legislation by judicial review turns out to be false wisdom. The reality is that judicial review does not usually end the life of federal legislation, and Congress often responds to the Court by amending legislation to make it constitutional. This is an important insight into the balance of powers between the Court and Congress because that relationship is nearly always mischaracterized as one in which the Court has the final say over the constitutionality of a statute.

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The Top 21 Sources of Legislative History

This might be of interest to 2305 students since we are now looking at the judiciary and also discussing how the courts go about the business of interpreting the Constitution and statutory law.

One things some judges and justices look to - though some discount it - is legislative history. This helps judges understand what legislators were trying to accomplish when they passed a law they might be reviewing.

The blog of Nicholas J. Wagoner - which appears to be dormant - runs through the top 21 places judges may look to seek out legislative history.

- Click here for a description.

In order of importance they are:

1. Conference Committee Reports
2. Committee Debates and Bill Mark-ups
3. Committee Reports
4. The Status of the Person Speaking—Sponsor, Committee Chairman, Floor Leader, Etc.
5. Accepted and Rejected Amendments
6. Floor Debates
7. Planned Colloquy
8. Transcripts of Discussions at Committee Hearings
9. Prepared Statements on Submission of a Bill, in Committee Hearings, and at the Time of Floor Debates
10. Revised and Amended Statements
11. Actions on and Discussions About Separate Bills on the Same Topic
12. Prior Relevant Administrative Action or Judicial Decisions, with or without Congressional Acknowledgement
13. Executive Branch Messages and Proposals Whether from the President, Cabinet Secretaries, or from Independent Agencies
14. Analysis of Bills by Legislative Counsel
15. Analysis of Bills by Relevant Executive Departments
16. Related Statutes, Provisions, and Terms (click here)
17. Dictionaries (click here)
18. Statements by Executive Branch Administrators (click here)
19. Statements and Submissions by Lobbyists (click here)
20. Subsequent or Prior Unrelated, but Conflicting Legislation (click here)
21. Recorded Votes

From James Q Wilson: American Exceptionalism

From a few years back, a look at how the American constitutional system system impacts governing, and how that contrasts with other nations.

- Click here for the article.

Its worth reading. Here are some nuggets from it.

On the nature of American democracy:

- Democracy, of course, means rule by the people. But the devil is in the details. By one count, the number of democracies quintupled in the second half of the twentieth century, but there are freedom-loving and freedom-disdaining democracies. Fareed Zakaria calls the latter "illiberal democracies." Among them are Kazakhstan, Pakistan, Ukraine, and Venezuela.

The number of democratic regimes has grown rapidly in the last several decades, but what has grown is not like American-style democracy. Though most democracies have certain things in common--popular elections, the rule of law, and rights for minorities--we should never suppose that what we hope will appear in the Middle East and elsewhere will look like American government any more than Britain, France, Germany, India, Japan, or Turkey look like us. Recall that American democracy contains some strikingly undemocratic features, such as an Electoral College, two senators for each state regardless of state populations, and an independent judiciary.

On the consequences of separated powers and winner take all elections:

- America was slow to adopt welfare programs, social security, unemployment insurance, and government supported health care, while Europe adopted these policies rapidly. We have kept our tax rate lower than it is in most of Europe. The central difference is not that Europeans are either smarter or dumber than we, but that a parliamentary system permits temporary popular majorities to make bold changes rather quickly, whereas a presidential system with a powerful, independent, and internally divided Congress requires that big changes undergo lengthy debates and substantive accommodations. On occasion America does act like a parliamentary system, as it did under Franklin Roosevelt during the Great Depression and under Lyndon Johnson when he commanded extraordinary majorities in both houses of Congress.

The system a country uses to elect its rulers also makes a difference. In a recent study, political scientists Torben Iversen and David Soskice have shown that, among 17 large democracies, those that elect their legislators using proportional representation (PR) are three times more likely than those electing them by majority vote to have leftist governments that redistribute income from rich to poor.

On federalism and the states as "laboratories of democracy:"

- When welfare reform began at the national level, it built on new ideas being tried in several states. When limits on aggressive medical malpractice suits began, they came first in states and are only now being considered in Washington. These changes confirm the argument by Justice Louis Brandeis that federalism is valuable because it creates "laboratories of democracy." He was explaining why much good comes from political alternatives. Not only can government choose what to do, people can choose among states where it is done. People who want medical marijuana, tough environmental laws, lenient criminal justice penalties, and alternative life-styles can live in one place; people who prefer the opposites of these can live elsewhere.

On the benefits of not having an established church:

- for most people, religion is a reality, not a dodge. Tocqueville understood that, contrary to the prediction of European philosophers, freedom and enlightenment would not extinguish religious zeal. On the contrary: here freedom largely explains our persistent religiosity.

That is because a nation that never had an established church and did not grant money or privileges to existing churches left religion in the hands of spiritual entrepreneurs. These people were sometimes domestic missionaries and sometimes local citizens eager to create and govern a religious organization. Protestant churches had to compete in a spiritual marketplace, with many new churches emerging every year, people changing their affiliations frequently, and a few mega-churches emerging under the guidance of the most successful ministers. The system of natural liberty that Adam Smith said would benefit the economy has also aided religion.

On the growth of the power of the judiciary:

- . . . it is true that we have, in proportion to our population, three times as many lawyers as does Great Britain and 25 times as many as Japan.

But we are not more litigious because we have more lawyers; we have more lawyers because we are so litigious. Not even the framers of the Constitution anticipated this. As Alexander Hamilton put it in Federalist Number 78, "the judiciary…has no influence over either the sword or the purse, no direction of either the strength or the wealth of the society, and can take no active resolution whatever." As a result, "the judiciary is beyond comparison the weakest of the three departments of power." Things turned out a bit differently than Hamilton supposed. The courts have become immensely powerful for two reasons: the existence of an independent judiciary and the beliefs Americans have about the foundation of their government.

Courts that are independent of the legislative and executive branches will inevitably become the referee that determines when a law or order violates the Constitution. That document did not say this, but it did say that it was the supreme law of the land. That being so, there must be some organization that will defend that claim. Early on, the Supreme Court under the leadership of John Marshall became that entity, and since then no one has doubted it. As the federal government grew in size and authority, more and more issues arose that implicated the Constitution, and so more and more often the Court decided how that document should be read. Since 1789, the Supreme Court has declared more than 160 laws to be unconstitutional.

On what countries can and cannot become democracies:

There are many different kinds of democracy that can be spread, and Americans should never suppose that what may take hold in another country will closely resemble what has grown up here. A few may be illiberal ones, many will be elitist ones, but most will enhance the freedom of their people, change governments peacefully after an election is held, and refrain from the use of force to conquer other nations.

Some Americans are skeptical that democracy can be exported, especially to the Middle East. These countries lack what we had: a successful war against a colonial power, wise statesmen who drafted our Constitution, and a political culture that will sustain democratic authority and protect human freedom. But most nations that have become democracies lack some or all of these traits: there was no revolutionary war, few wise statesmen, and no democratic political culture in France, Germany, Italy, and Japan. England, the nation that became democratic a few decades after the United States was created, did have many helpful precursors: no feudalism, many independent farmers who owned their own land, and an early experience with an independent judiciary. England's former colonies--not only America, but Australia, Canada, India, and New Zealand--became the leading democracies of the world.

But other countries have become democratic despite internal terrorism (France), domestic autocracy (Germany), a weak political culture (Japan), a lack of territorial integrity (Italy) and a Muslim population (Turkey and increasingly Indonesia). The fact that not all democracies (in fact, almost none) will look like ours and that radicalism and despotism will make democratic progress painfully slow in many countries are not arguments against encouraging the spread of democracy; they are only arguments against hoping that our system can be exported intact and that we will see democracy in the most resistant nations in our (or our children's) lifetimes. Though American democracy got off to a good start in 1789, we had to fight a bloody civil war before much more progress could be made.

But we have left a legacy that many people wish to emulate. When people in Lebanon, Jordan, Morocco, and Indonesia are asked whether western-style democracy can work in their countries, the overwhelming majority say "yes.

Planned Parenthood v Abbott

Here's a link to the decision.

Here's the heart of the decision:

No ruling of this court will sway the opinion regarding abortion held by anyone. And, indeed, that is not the role of this court. The court may not and will not decide whether there should be abortions in Texas. This court is charged only with determining whether certain provisions of House Bill 2 are consistent with the Constitution of the United States under existing Supreme Court precedent. 

. . . Three established principles govern this court's consideration of House Bill 2: (1) Before fetal viability, a woman has a right to terminate her pregnancy. (2) A law designed to further the State's interest in fetal life which imposes an undue burden on a woman's decision before fetal viability is unconstitutional. A state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus is an undue burden. (3) After fetal viability, the State, in promoting its interest in the potentiality of human life, may regulate or proscribe abortion, except where it is necessary for the preservation of the life or health of the mother.

Having carefully considered the parties' briefing, stipulations, exhibits, trial testimony, arguments of counsel, and the applicable law3, the court concludes: (1) the act's admitting-privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, and (2) the act's provisions that place restrictions on medication abortions do not place such an obstacle, except when a physician finds such an abortion necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. In so deciding, the court makes the following findings of fact and conclusions of law.

From Texas Tribune: Court Battle Begins Over New Abortion Regulations

For our look at the federal judiciary, in addition to federalism:

Seeking to block the state of Texas from implementing new abortion regulations, plaintiffs representing abortion providers argued Monday in a federal court that the state’s law violates the constitutional right of women to access the procedure. But the state’s attorneys defended Texas’ right to enact laws that advance protections for the life of a fetus.

U.S. District Judge Lee Yeakel, who presided over the hearing, in which arguments are scheduled to wrap up on Tuesday, was clear about what the court's role was. “This court’s job is not to rule on whether women should be allowed abortions,” said Yeakel, “but to rule on whether or not this statute comes within the existing constitutional confine.”

Given the significance of the law, Yeakel said he'd like to make a decision as soon as possible after arguments conclude.

The plaintiffs, who represent the majority of abortion providers in Texas, including four Planned Parenthood affiliates, Whole Woman’s Health and other independent abortion providers, asked the court for a preliminary injunction to block the implementation of two provisions in House Bill 2 that would take effect Oct. 29: a requirement that doctors who perform abortion have active admitting privileges at a hospital within 30 miles of the facility, and that doctors follow the FDA regimen, rather than a commonly used evidenced-based protocol, for drug-induced abortions. The plaintiffs argued that both of these provisions present an undue burden on women attempting to access abortion and are therefore unconstitutional.

The attorney general’s office argued that these provisions were not approved just to protect the safety of the mother. They were also enacted to advance the state’s interest in promoting and protecting fetal life, one state attorney said at the hearing. The burden of proof lies on the plaintiffs, the attorney said, as the U.S. Supreme Court’s ruling in Casey v. Planned Parenthood allows the state to enact laws that advance its interest in protecting fetal life, so long as it does not create an undue burden on the patient. The court could not overturn the provisions in whole, the state’s attorney argued, because a severability clause in the law requires doctors and patients who believe their constitutional rights have been violated by the law to individually seek exclusion from its provisions.

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. 

Does the Supreme Court see the war on terror and Obamacare as essentially the same?

A Washington Post writer thinks so, and suggests that this explains the need for clear limiting principles:

. . . from the Supreme Court’s perspective, they pose practically the same question: How much more authority over individuals can the federal government assume, consistent with the Founders’ notion of limited and enumerated powers?

During the 20th century, the court stretched that concept to accommodate the rise of both a large domestic regulatory and welfare apparatus and of a permanent military and intelligence establishment. That seemed necessary and proper in view of the social problems of a modern urban society and the external threats of Nazism and communism.

In fact, the welfare state and the national security state grew up together. The New Deal’s twin was World War II; the Great Society accompanied the Cold War. The federal government’s expansion has protected us from old age, poverty and external threats — while burdening us with taxes, bureaucracy and a certain amount of official snooping.

The Bush administration took Sept. 11, 2001, as an opportunity to win additional national security powers for the federal government. The Obama administration saw the Great Recession as an opportunity for a New Deal-like expansion of health care and other domestic programs.

Consequently, the court has had to decide whether to allow further growth of the national security state and the welfare state — or to push back, lest these twin leviathans smother individual freedom.

I like the point he is making here, and it fits my approach to looking at the gradual expanse of executive power over American history. As the size of the government increases - meaning the actual physical size of the institutions implementing policies increases - simple votes by the people are insufficient to limit what government's do, and the courts have to step in.

So perhaps the more aggressive approach taken by the court is a necessary response to the increased size of the executive and the real and potential expanse of its powers.

Texas Supreme Court limits the Texas Open Beaches Act

The Texas Open Beaches Act was passed in 1959 and guarantees free public access to beaches along the Gulf of Mexico. It limits the ability of the people to own a beach, which grants the general public access to beaches. But this allows the state to confiscate land when the vegetation line rolls over private property, which sometimes happens after storms and hurricanes.

For the second time, the court has ruled that this law violates private property rights. The case is Severance v. Patterson. The majority decision is here, which was joined by 5 justices, the  other three each wrote a separate dissent here, and here, and here.

At issue is what continued access the public can have to Texas beaches and what power the state and local governments have to not only enforce that access but to engage in cleanup and repairs following storms.

- Supreme Court affirms ruling on Open Beaches Act.
- Court: Public beach easement does not roll.
- High court kills Texas Open Beach Act ‘dead,’ land commissioner says

- http://openbeaches.com/wp/

The case is set to be appealed to the 5th Circuit Court of Appeals, so the story is not final.

Supreme Court to hear Texas redistricting cases tomorrow

ScotusBlog outlines the expected arguments, which will include a challenge to the constitutionality of the Voting Rights Act of 1965.

The three cases under review are Perry v. Perez (11-713), on redistricting the state house, Perry v. Davis (11-714), on redistricting the state senate, and Perry v. Perez (11-715), on redistricting of seats in the U.S. House, expanded for Texas this year from 32 to 36 to account for expanded population in the state since 2000, especially among Hispanics. The dispute revolves around new districts that the state legislature fashioned earlier this year — in May for the two houses of the state legislature, and in June for the U.S. House seats.

Although the cases as they reached the Supreme Court are focused closely on the special requirements imposed on some states — mostly in the South — by Section 5 of the Voting Rights Act of 1965, their implications range well beyond that provision and raise fundamental questions about the division of power between state legislatures and federal courts in the crafting of new districts following each ten-year federal census, and about how far federal courts may go in that process to assure election opportunities for minority races or ethnic groups.

This dispute is, at its core, a fundamental test of historic questions about federalism — that is, the roles of federal vs. state governments in managing election processes.

Does Gingrich have a good point regarding the courts?

Newt Gingrich's recent criticisms of the judiciary have angered some, but Eric Posner thinks he makes a reasonable point. As we continue to wade through the Constitution, its appropriate to wonder who has the last word on the document's meaning. The Constitution itself says nothing about who gets to decide this, though Alexander Hamilton sides with the judiciary on the subject and lays out his argument in Federalist #78.

Give it a read.

Appeals Court Upholds Obama’s Health Care Law

From the NYT:

The Obama administration prevailed in the first appellate review of the 2010 health care law on Wednesday as a three-judge panel from the United States Court of Appeals for the Sixth Circuit held that it was constitutional for Congress to require that Americans obtain health insurance.

The ruling by the Cincinnati court is the first of three opinions to be delivered by separate courts of appeal that heard arguments in the health care litigation in May and June. Opinions are expected soon from panels in both the Fourth Circuit in Richmond, Va., and the Eleventh Circuit in Atlanta.

Lawyers on both sides of the case widely expect the Supreme Court to take one or more of the cases, perhaps as soon as its coming term, which starts in October. The speed of the Sixth Circuit ruling could help insure that timing.
You can read the decision here.

Here's a key part of the story:

The Sixth Circuit majority held that the mandate was “facially constitutional under the Commerce Clause” for two reasons.

“First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce,” Judge Martin wrote. “In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.”

The court directly addressed whether a choice to go without health insurance qualifies as an “activity” that substantially affects interstate commerce, which is the standard set in prior Supreme Court decisions on the breadth of the Commerce Clause.

“The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan,” the opinion stated.

The majority emphasized that the case should not hang on distinctions about whether the failure to purchase insurance should be defined as activity or inactivity, a question the Supreme Court has never considered. “The constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable label,” the judges said.

In his concurrence, Judge Sutton added: “Inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk.” Whether an individual buys an insurance policy or not, the judge wrote, “each requires affirmative choices; one is no less active than the other; and both affect commerce.”

The Fed's Brief Appealing Vinson's Trial Court Decision on Health Care Law

Andrew Cohen, writing in the Atlantic, details how the Justice Departments is preparing its appeal of a trial court judge's decision declaring the Affordable Health Care Act unconstitutional:

The Justice Department's latest appellate brief in the fight over the constitutionality of the Patient Protection and Affordable Care Act is no fur-and-teeth affair. The first half of the 110-page filing, made April Fool's Day at the 11th U.S. Circuit Court of Appeals, reads like a policy paper on health care as much as it does a legal filing. And the second half of the document devotes itself to politely chronicling the number of ways in which the feds believe that U.S. District Judge Roger Vinson got it all wrong in January when he declared the Act unconstitutional in its entirety.

The tone of this document is mellow; the rhetoric far afield from where the ugly political discourse has taken the matter of health care reform (that's probably so, from the White House's perspective, for both legal and political reasons). Anyone who has followed the legal story of the Affordable Care Act, through all its trial court rulings over the past six months, will recognize the major points of contention offered now. But what is striking now is how soft federal lawyers took it with Judge Vinson, the Reagan appointee sitting in senior status in Northern Florida. You can go for pages without so much as a mention of the trial judge who has so forcefully threatened to shut the whole thing down.

Cao v. Federal Election Commission

For 2301 as we dig into elections this week:

From the Washington Post:

The Supreme Court on Monday turned down the Republican National Committee’s latest attempt to knock out long-standing campaign finance restrictions.

Without comment, the justices rejected a challenge from the RNC and former Louisiana congressman Anh “Joseph” Cao that sought to end federal restrictions on how much a political party can spend in direct coordination with a candidate. Cao lost a reelection bid in 2010.

The RNC said the restrictions violate the party’s First Amendment rights, a claim that was turned aside by the U.S. Court of Appeals for the 5th Circuit.

It was one of two challenges the GOP filed after the 2008 elections. The court did not accept either of them.

In June, the justices let stand a lower court’s decision that upheld the constitutionality of the “soft-money ban” in the 2002 McCain-Feingold campaign finance reform act. That law bars national political parties from accepting or spending unregulated campaign cash.
- The National Journal.
- The FEC website.
- ScotusBlog.
- Campaign Legal Center.
- Roll Call.

A Second Federal Judge Finds the Health Care Law Unconstitutional

- Story in the NYT.
- A summary of opinions from the Atlantic Wire.
- Thumbs up from the WSJ.
- Clive Crook: Health Care and the Constitution.
- Garrett Epps: The Vinson Ruling and the Strange Nature of Judicial Review.

The Future of the Commerce Clause

This is a very big deal and I'll integrate it into my discussion of federalism in 2301. It involves potential of challenges to the commerce clause and its impact on federalism. Linda Greenhouse kicked up a discussion of the consequence of the recent Virginia Court ruling on the individual mandate component of the health care law. Will it lead to the narrowing of the commerce clause that New Deal critics have been pursuing for decades?

It has been 15 years since the Rehnquist court began applying the constitutional brakes to assertions of federal power that had seemed unassailable since the New Deal. Its first target was modest, a five-year-old federal statute called the Gun-Free School Zones Act that most people had never heard of, which made it a federal crime to possess a gun within 1,000 feet of a school.

The vote in United States v. Lopez was 5 to 4. Chief Justice William H. Rehnquist wrote the court’s opinion, observing that the Constitution’s commerce clause did not confer on Congress a general police power disconnected from the regulation of economic activity. To uphold this statute, he said, would be to blur the “distinction between what is truly national and what is truly local.” For the first time since 1936, the Supreme Court struck down a federal law as exceeding Congress’s commerce power. In dissent, Justice David H. Souter warned that “it seems fair to ask whether the step taken by the court today does anything but portend a return to the untenable jurisprudence from which the court extricated itself almost 60 years ago.”

Thus began the Rehnquist court’s federalism revolution, a 5-to-4 forced march through the various sources and attributes of Congressional power. The targets included, most notably, Congress’s authority under Section 5 of the 14th Amendment to enact into law its own vision of the guarantees of equal protection and due process when that vision was broader than the court’s own. William Rehnquist had waited a judicial lifetime to assemble a majority that would follow him on such a course. Eleven federal statutes would eventually fall, in whole or part, on federalism grounds in less than a decade before the court, including the chief justice himself, began to blink and the revolution petered out.

Ever since, it has been quite easy to get a good debate going, among people who spend time thinking about such matters, about whether the federalism revolution really had amounted to much beyond the symbolic. True, the court did strike down a provision of one fairly high-profile law, the Violence Against Women Act, under which women could sue their attackers for damages. But no major federal program felt the ax. I had been an early proponent of the view that something big was happening. But in recent years, while still finding the subject of great interest, I was beginning to have my own doubts about what it all had meant.

Until now. In his opinion on Monday striking down the individual mandate of the new health care law, Judge Henry E. Hudson of federal district court in Virginia cited the Lopez case and United States v. Morrison, the Violence Against Women Act decision (also a 5-to-4 Rehnquist majority opinion), more than a dozen times. Judge Hudson deployed the two cases as the major building blocks for his argument that Congress lacked constitutional authority to require individuals either to purchase health insurance or pay a fine to the Internal Revenue Service, a provision the judge said was “neither within the letter nor the spirit of the Constitution.”
She then adds her criticism of the decision which itself has been criticized:

- Ilya Solim.
- Conor Friedersdorf.

Virginia Federal Judge Rules Individual Mandate Unconstitutional

From the NYT:

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.