Hunting for “Three Coequal Branches”

This is a longer-than-average post about why we think that the Constitution establishes three equal branches.  As I’ve explained in some earlier posts, the text does not support that proposition, and at the Founding it’s hard to find anyone who said that the three branches were equal.  The Fourteenth Amendment also refutes that claim by reinforcing Congress’s position as the superior branch (more on that in a separate post).

What’s really surprising about my research thus far is the paucity of authorities that say that we have three equal branches.  Here’s what I’ve found so far (though, of course, the work goes on, the cause still lives, and the dream shall never die).

1.  Andrew Jackson appears to have invented the idea that we have three coequal branches.  (Take that–those who want him off the $20 bill.)  He made this argument in his Protest against the Senate Censure Resolution that attacked his withdrawal of deposits from the National Bank as unconstitutional.  Nobody, though, appears to have relied on his assertion afterwards, and no President made a similar claim until the 1950s.

2.  In 1864, the Supreme Court stated in dicta:  “It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government.”  Nobody cited this statement afterwards either (as far as I can tell).

Maybe that was because there were some major problems with the Court’s claim (in an opinion by Chief Justice Taney).  First, the Court was at the low ebb of its authority at that point (during the Civil War), and so its statement about coequality seems self-serving.  Second, the Fourteenth Amendment undercut the assertion that the Court was equal in title to Congress, as I’ll explain tomorrow.


3.  In Marshall Field & Co. v. Clark (1892), Justice Harlan wrote for the Court in a case where the issue was whether an Act of Congress was, in fact, an Act of Congress.  (In other words, did the same bill pass both houses of Congress?)  Harlan said:  “The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.”

This line was cited in two other opinions by Harlan, and my tentative conclusion is that he just cared about a lot about this idea, as he also wrote in 1911 that:  “The illustrious men who laid the foundations of our institutions deemed no part of the national Constitution of more consequence or more essential to the permanency of our form of government than the provisions under which were distributed the powers of government among three separate, equal, and co-ordinate departments,—legislative, executive, and judicial.”

Anyway, more work to be done.





The Guarantee Clause

Some attention is being given (or should be) to Footnote 3 of the Court’s opinion in the Arizona redistricting case, which states:

The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus, by reserving for themselves the power to adopt laws and to veto measures passed by elected representatives, is one this Court has ranked a nonjusticiable political matter. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (rejecting challenge to referendum mounted under Article IV, §4’s undertaking by the United States to “guarantee to every State in th[e] Union a Repub­ lican Form of Government”). But see New York v. United States, 505 U. S. 144, 185 (1992) (“[P]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions.”).

Why add the “But See” cite?  Because the Court wants to invite litigants to try out a Guarantee Clause claim somewhere?  Maybe in a voting rights case?


FAN 66.1 (First Amendment News) The Indecency Wars Continue — WDBJ TV opposes $325K fine proposed by FCC

The enormous fine proposed by the FCC is also an extraordinary burden on protected speech. The FCC’s largest base fine for other types of violations by broadcasters is $10,000. — Jeffrey A. Marks, President & General Manager of WDBJ

* *  * * 

Travis LeBlanc, chief of the FCC’s enforcement bureau, said that the agency’s action “sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching.” (Variety, March 23, 2015)

Yesterday lawyers for WDBJ Television filed an Opposition to a FCC Notice of Apparent Liability (NAL) against the station. The 55-page opposition was filed by Jack N. Goodman and Robert Corn-Revere. The case is titled In the Matter of WDBJ Television, Inc. (files #s: EB-IHD-14-00016819 & EB-12-IH-1363).

UnknownThe proposed FCC fine stemmed from a July 12, 2012 WDBJ newscast concerning a Roanoke County controversy over a former adult film star who had joined the local volunteer rescue squad. WDBJ covered the story and the dispute over the firing of a female volunteer. Parts of WDBJ’s story were illustrated from materials taken from the Internet, including some from an adult-film website.  “Due to equipment limitations,” Goodman and Corn-Revere argue, “station personnel were unable to see the full screen of the online material, and the eventual broadcast briefly displayed a small image of an erect penis at the extreme margin of the screen. The image appeared for 2.7 seconds during a three minute and ten second story, covered only 1.7 percent of screen at the far right edge, and prompted an immediate response from WDBJ once it became aware of the mishap.”

In response, on March 23, 2015 the FCC issued a NAL and a proposed fine of $325,000 — the maximum amount permissible under the Broadcast Decency Enforcement Act.

Dennis Wharton, spokesman for the National Assn. of Broadcasters, said, “NAB is disappointed with today’s remarkably punitive indecency fine proposed against WDBJ. Schurz Communications apologized for the fleeting image, which was clearly unintended. This unprecedented fine against a family-owned broadcaster with a demonstrated commitment to serving communities is wholly unwarranted.”  (VarietyMarch 23, 2015)

WDBJ’s lawyers contend that the FCC’s NAL “rests on incorrect factual premises” and that the Commission “misapplied its indecency standard to the WDBJ newscast.” As to the latter point, they make three basic arguments:

  1. “The newscast was not graphic and explicit under Commission precedent”
  2. “The broadcast did not dwell on or repeat sexual material,” and
  3. “The broadcast did not seek to pander or titillate.”
Jack N. Goodman

Jack N. Goodman

Goodman and Corn-Revere also maintain that the FCC “lacks a constitutionally sound test for indecency.” In this regard, they offer three basic arguments:

  1. “The Supreme Court neither upheld nor ratified the FCC’s indecency policy” (“The constitutional questions left open in Fox must be addressed.”)
  2. “Devising a constitutional policy to regulate broadcast indecency requires great restraint” (The FCC must adhere to the First Amendment” and “Pacifica’s restrained enforcement approach is constitutionally required.”) and
  3. “As applied to WDBJ, the proposed fine violates the First Amendment.”
Robert Corn-Revere

Robert Corn-Revere

Additionally, Goodman and Corn-Revere contend that the FCC’s NAL “articulates an erroneous and unconstitutional standard for willfulness. On this point they contend that the FCC’s NAL is unlawful insofar as it “proposes to penalize WDBJ for an alleged indecency violation that was neither ‘willful” nor ‘repeated,’ as required by 47 U.S.C.  503 (b)(1).”

Finally, they argue that even if the Commission “could find that WDBJ violated the indecency policy, the proposed [fine] should be vastly reduced.” Here Goodman and Corn-Revere maintain that the FCC’s NAL “sets out various reasons — many of which are incorrect — for a [maximum fine], but utterly fails to explain why it is appropriate to impose a [fine] more than forty-six times the base amount for the inadvertent inclusion in a news program of a depiction of a sexual organ for less than three seconds.” As for the enhanced fines allowed for under the Broadcast Decency Enforcement Act of 2005, they argue that “Congress did not attempt to establish [the $325,000 fine] as the minimum or even the expected [fine], or to indicate any intent to override the Commission’s normal decision with respect to the amount of a [fine] in any particular case.”


Undue Burden and Federalism

Before saying more on the cases just decided, I want to throw out an observation about the Texas abortion regulations that were stayed by the Court yesterday.

Suppose that Rhode Island put strict limitations on abortions.  If that statute were challenged under the “undue burden” standard set forth in Casey, one response could go something like this.  “Hey, all of our neighboring state have broad access to abortion.  We’re tiny, and so getting from Providence to another state takes hardly any time or cost.  Therefore, no undue burden is being imposed.

Does this argument work?  The reason I ask is that in Texas the opposite is true.  It’s a huge state, many of the neighboring states do not have broad abortion access, and thus it would be costly and time-consuming to go elsewhere for an abortion.  Thus, you could say that an undue burden is being imposed.  If this is so, though, then wouldn’t you have to say that small states with a pro-choice neighbor would have greater leeway to restrict abortion than large states?


FAN 66 (First Amendment News) Another money-is-speech controversy — Court agrees to hear public employee union free-speech case

As this case came to us, the principal question it presented was whether to overrule Abood: The petitioners devoted the lion’s share of their briefing and argument to urging us to overturn that nearly 40-year-old precedent . . . . Today’s majority cannot resist taking potshots at Abood, but it ignores the petitioners’ invitation to depart from principles of stare decisis. And the essential work in the majority’s opinion comes from its extended (though mistaken) distinction of Abood, not from its gratuitous dicta critiquing Abood’s foundations. That is to the good—or at least better than it might be. The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision. Justice Elena Kagan, dissenting in Harris v. Quinn (2014)

Rebecca Friedrichs (credit: Greg Schneider, AP)

Rebecca Friedrichs (credit: Greg Schneider, AP)

Before this Term came to its end, the Court agreed to hear Friedrichs v. California Teachers Association, et al. The issues in the case are:

  1. Whether in light of Harris v. Quinn (2014) Abood v. Detroit Board of Education (1977) should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and
  2. whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

A three-judge panel of the Ninth Circuit summarily affirmed the District Court’s ruling against the Petitioners and their First Amendment claims. Acting on behalf of Rebecca Friedrichs and others, the Center for Individual Rights thereafter petitioned the Supreme Court to hear the case, which the Justices agreed to do yesterday. Relying on the First Amendment, that suit challenged California’s “agency shop” laws, which require public employees to pay union dues as a condition of employment.

Michael Carvin, lead counsel for Petitioners

Michael Carvin, lead counsel for Petitioners

“At the center of the test case before the Court,” wrote SCOTUSblog’s Lyle Dennisotn, “is a practice that labor unions consider essential to their very survival: the ability to draw some financial support from all workers in a unit covered by a union contract, whether they belong to the union or not. Because unions have a binding legal duty to act in the interest of all workers included in the unit, the labor organizations want to collect fees even from ‘free riders,’ as they call non-union workers. . . . [T]he Abood decision,” he added, “is the direct target of the new Friedrichs case.  The lawyers who developed that case contend that everything a public-employee union does is an attempt to influence public policy, so non-union members should not have to pay any fees to support the union, if they have a personal objection.”

By much the same logic, if the Court declines to rule in their favor on the first issue, Petitioners also argue that non-union public employees should not be required to pay fees to support union collective bargaining activity unless they expressly opt in to do so (an not the other way around).

Effectively, such a decision would convert the twenty-six states that now require union membership into open-shop states.Center for Individual Rights

Counsel: Michael Carvin filed the petition for certiorari (see here re Reply Brief). Jeremiah Collins filed a brief in opposition on behalf of the California Teachers Association. California’s Attorney General, Kamala Harris, filed a brief on behalf of the Respondents (see here re Reply Brief).

Looking Back to Harris v. Quinn (2014)

Before joining the Georgetown Law faculty Neal Kumar Katyal was one of the lawyers on the Petitioners’ merits brief in Harris. Before that he was one of the lawyers for the Petitioner in Knox v. Service Employees Int’l Union, Local 1000 (2012) (see brief here). 

→ Mr. Carvin had also filed an amicus brief in Harris v. Quinn in which he argued that Abood should be overruled. Among others, a contrary position was advanced in an amicus brief filed in Harris on behalf of labor law professors (Professor Charlotte Garden, counsel of record). 

In Friedrichs amicus briefs were in filed in support of the Petitioners  by the Cato Institute, Constitutional Law Professors, Pacific Legal Foundation, Michigan and Eight other States, and the National Right to Work Legal Defense Fund, among others.

Rebecca Friedrichs

Americans of all political preferences would rise up against such tyranny if their rights were squelched by corporations, yet teachers unions have been legally trampling the free-speech rights of teachers throughout our nation for decades through forced dues used to fund their one-sided political agendas. This practice is unconscionable; especially considering that unions are tax-free “corporations” who long ago abandoned the individual rights and desires of their members. — RF, “Teachers stand against tyranny,” Orange County Register, February 16, 2014

 SCOTUSblog Symposium on Harris v. Quinn (contributors: Catherine Fisk, Tom McCarthy, Samuel Gedge, Charlotte Garden, Terry Pell, Jason Walta, Samuel Bagenstos, and John Eastman).

Washington State High Court: First Amendment protects profanity against police Read More


Death Penalty Free Riding

With the constitutional debate on the death penalty now back on, I want to make an observation about that punishment that flows from the recently completed Boston Marathon bomber trial.

It seems to me that the DOJ’s decision to seek the death penalty in a state that does not have capital punishment sets a precedent that could undermine that regime nationwide.  Suppose you’re in a state that is thinking about getting rid of the death penalty.  A good reply to that idea is that every once in a while there is a really heinous crime that merits a death sentence.  (The alleged killer in Charleston comes to mind.  So does Timothy McVeigh).

Not a problem, an abolitionist can say.  The DOJ will seek the death penalty in such a case.  In a really terrible crime, some ground of federal jurisdiction can be found.  In effect, states can just free ride on the federal government for “the worst of the worst” cases.”  No need to  maintain the expense of state death row, post-conviction review, or an execution method.

Not all states will feel this way, of course.  Some will say that the DOJ will not seek the death penalty often enough.  Or they might say that there can be horrible killers who would not trigger federal jurisdiction somehow.  My point, though, is that many states that have the death penalty but use it rarely might conclude that the DOJ can be safely entrusted with this discretion.  I wonder if we will see that argument made more often in the coming years.



The Arizona Legislature Case

I was surprised by the outcome, the reasoning in the opinion, and that there were two votes (from Scalia and Thomas) to dismiss the suit for lack of standing.  In the end, I wonder if the Court should have just said “no standing” and left the status quo in place (in other words, the result would have been the same without needing to reach the merits).

UPDATE:  After reading the opinions again, I’m persuaded by the argument that there was no standing and that the Court should not have reached the merits.


Revisiting Capital Punishment

I want to go through the opinions on the three-drug protocol more carefully, but I will say that I’m not persuaded (and never have been) that the death penalty is unconstitutional across the board.  Whether the states or the federal government should choose to have the death penalty is a different matter, but I think Justice Scalia has the better of the constitutional argument with Justice Breyer.

I wonder if this means that Breyer and Ginsburg, like Brennan and Marshall before them, will dissent in every new death penalty case.  Or is there a distinction between asking for briefing (as they did today) and actually taking the position that the death penalty is unlawful?


Same-Sex Marriage Whoppers

Let’s turn to the same-sex marriage decision.  I’ll have a separate post on the Court’s opinion later.  Basically, my thought is that it reads like a lot of Justice Kennedy’s decisions, unfortunately.

With respect to the dissents, I want to make two points.  The first is that the Chief Justice’s dissent is greatly weakened by its cliched use of Lochner.  It’s as if he decided to repeat what he learned about the case in law school thirty-five years ago and thought that was a winner.  It’s not.  His story is riddled with historical inaccuracies (I’m sure David Bernstein will have more to say about that) and that charge no longer packs a wallop anyway.

Second, Justice Scalia’s dissent loses much of his credibility when he says at the outset that he personally does not care whether same-sex marriage is legal or not (as a policy matter).  I don’t believe that, and I think that few who read the opinion do.  Moreover, I find his speeches about the Justices usurping democracy to be getting rather tiresome.  He reminds me of a coach that the players no longer listen to.