Author: Gerard Magliocca


If You Think Political Rhetoric is Tough Now . . .

Consider the close of Thaddeus Stevens’ speech on the articles of impeachment against Andrew Johnson:

“Unfortunate man, thus surrounded, hampered, tangled in the meshes of his own wickedness–unfortunate, unhappy man, behold your doom.”

Sounds to me like a great tagline for a negative campaign ad.


Can 50 Million Frenchmen Be Irrational?

Let me ask the following question.  Has there ever been a policy enacted by Congress and by the overwhelming majority of the states that was held unconstitutional because it lacked a rational basis?  I’m sure that the answer is no (though if there is an example, I’d like to hear about it).

This, in a nutshell, states my problem with recent cases analyzing DOMA and Proposition 8.  In my opinion, these courts applied heightened scrutiny even as they said that they were applying rational basis.  If intermediate scrutiny is the correct standard of review for distinctions based on sexual orientation, then I think that the conclusion that DOMA and Prop 8 are invalid would follow.  Under rational basis, I do not see how that conclusion can be correct.

Where are these District Courts getting their confused approach?  The answer is the Supreme Court.  Lawrence and Romer (especially Romer) did the same thing.  They said that they were applying rational basis, but the analysis in those cases does not look like rational basis at all.  In those decisions, though, the gap between reality and the formalities was not so great.  Romer, after all, involved a provision in a single state (Colorado) that was unusual.  Likewise, Lawrence involved a policy that was embraced by only a handful of states.  Accordingly, in both instances one could plausibly say that that the holding was sound under rational basis review.

The same-sex marriage cases cannot be concealed by this smokescreen.  The Justices will have to decide whether sexual orientation is a suspect classification.  And in my view, they will do so (or, more accurately, Justice Kennedy will).


Reading Recommendations

I want to highlight two terrific new pieces of scholarship that you should check out.  I read them on my trip.

The first one is A Structural Vision of Habeas Corpus by Eve Brensike Primus.  Here is the abstract:

For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants’ federal rights. Indeed, many states systematically violate criminal defendants’ federal rights with impunity. This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when a state routinely violates its criminal defendants’ federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.

The second one is Impeached:  The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy by David O. Stewart.  It’s a blow-by-blow account that is full of fascinating details that I’m finding really useful as part of my Bingham research.  The discussion of the bribes that were used to buy Johnson’s acquittal is especially fun.


Birthright Citizenship

I just got back from a trip to the Middle East that included Petra. The old knight that guards the Holy Grail is a big fan of the blog.  (“You have chosen wisely.”)  I find that these sorts of vacations are essential if you want to keep on writing and thinking clearly.  It’s a bit like the Monty Python sketch about “Confuse-a-Cat” — the best way to get out of a rut is by turning things upside down for a week or so.

I see that while I was away there was a renewed call for legislation that would eliminate birthright citizenship for children born here to illegal immigrants.  As I explained in this article, such a law would almost certainly be unconstitutional.  On the other hand, there is no Supreme Court holding on the question (Wong Ark Kim — an 1898 decision — gets close, but it can be distinguished if you try hard enough), and it is inevitable that the issue will be litigated either though a federal citizenship repeal or via a state statute denying birth certificates to these children.


The Inactivity Principle

Yesterday I read the briefs in Virginia v Sebelius, which is the most developed lawsuit challenging the constitutionality of the individual health insurance mandate.  I was struck by two aspects of the arguments made in those briefs.

First, the case boils down to whether there is a meaningful distinction between congressional regulation of commercial activity and inactivity.  Coercing people without private insurance to buy some fits well within the “substantial effects” test of the Commerce Clause and the relevant principles governing the taxing power.  Nevertheless, opponents say that these doctrines all presuppose that the objects of the regulation are or would like to participate in the relevant market. Making the unwilling buy a product or enter a market, they contend, is unprecedented and should be deemed out-of-bounds as an infringement of individual liberty.

How should this argument be assessed?  It is easy as pie for lawyers or philosophers to explain why there is no moral or practical difference between activity and inactivity.  For example, one could say that people without health insurance are participants in the market because they exacerbate the adverse selection effect and drive up costs.  On the other hand, the law makes distinctions between action and inaction all the time.  Active euthanasia and passive euthanasia are treated differently.  State inaction can lead to the same harmful effects as state action, but the former is generally not a problem while the latter is.  Thus, I’m not sure why that distinction should be excluded from the commerce and taxing area (or from health care specifically).

One possible response is that there are areas where Congress can “draft” citizens into action.  Military conscription and jury service are two examples.  In these cases, though, one could say that there are specific textual provisions involved or that there is a long tradition of congressional authority in the area.  Neither is true for health care.  Turning this around, however, one could also say that what links these compulsive powers is that they are core elements of citizenship.

Is health care a core element of citizenship?  Well, the statute passed this year is certainly trying to make it so, and there is some support for that view among the public.  This is why the results of the 2010 and 2012 elections matter.  They will either lend credence to this position or not, which in turn will influence how the courts view the inactivity principle.


The Spending Power

As part of my draft paper on “Federal Remedies for Dysfunctional States,” I thought I’d pose the following hypothetical. Suppose that a state goes to Congress for a federal bailout.  Congress responds that the money will be provided on condition that the Governor resign.  (And let’s say there are some findings made that the Governor is corrupt/inept/a spendthift, etc.) Would this be constitutional?

One answer is yes because the state is free to refuse the money.  Under that theory, there could never be an unconstitutional exercise of the Spending Power.  Another answer, following South Dakota v. Dole, is that there must be a sufficient link between the spending and the condition to uphold Congress’s decision.  (So it would depend on the nature of the factual findings).  Finally, one could say that nullifying a state election (even through a carrot) violates the Tenth Amendment in the absence of a declaration that the state is no longer “republican” under the Guarantee Clause.

What do you think?


A Troll, Not an Ent

I read the other day that NTP, which won a $612.5 million settlement from Research in Motion a few years ago, has now sued Apple and several other smartphone makers on a similar patent infringement theory.  These defendants may decide to settle as well, but I hope that they don’t.  NTP is the poster child for opportunistic patent litigation, and it’s about time that somebody stands up and exposes the firm for the troll that it is.  (Granted, it’s not my money at stake, but I can still exhort from the sidelines.)  For my own take on the troll issue, which still holds up pretty well three years later, look here.


The Gold Clause Cases–Part II

Last week I talked about the prelude to the Supreme Court’s decisions upholding Congress’s abolition of the gold standard in 1933.  The stakes in those cases were incredibly high, as demonstrated by the President’s decision to deliver a radio address in the event of an adverse outcome announcing that he would not comply.  The Court responded with its own unprecedented act.  On two consecutive Fridays while the cases were under consideration, the Court issued a statement saying that the opinion would NOT be forthcoming on the following Monday.  That has never happened since.  As for the opinions themselves . . .

The case that gave the Justices the greatest difficulty was Perry v. United States, which assessed the validity of suspending the gold clauses in federal bonds.  Chief Justice Hughes wrote for a 5-4 majority, in an opinion that Henry Hart called one of the most baffling ever issued by the Court.  Hughes held that Congress lacked the power to change the mode of payment in government bonds, but that the bondholder had no remedy.  That was because gold was withdrawn from circulation by other statutes enacted in 1933 and 1934, and therefore the bondholder could not have actually used the gold he would have received.  The fact that the value of the bond would have been greater was deemed irrelevant.

If this “you have a right but no remedy” dodge sounds familiar, that’s because the Court often uses it to get out a jam.  Marbury is one example.  So was Ex Parte McCardle.  The Justices were unhappy with what Congress had done in repudiating its debts, but reluctantly concluded that they could not risk the institutional damage that would result from that conclusion. It’s what I called a “white flag” opinion in a prior post.

As I’ll explain in a post tomorrow, I’m trying to figure out whether this is how the individual mandate litigation will play out when it reaches the Court.


Seventh Circuit Nominee

I was pleased to learn that the President has nominated Victoria Nourse, a distinguished legal historian at the University of Wisconsin, for a seat on the Seventh Circuit.  Based on my interaction with her at a conference last year and on what I’ve seen of her written work, I think this is an excellent choice.