Author: Gerard Magliocca


Terrorism and the Supreme Court

One consequence of the the 9/11 attacks was a greater awareness of continuity-in-government issues.  There was an effort (now moribund) to amend the Constitution and provide for the appointment of House members in case a large number of them were killed in an attack on the Capitol. Under current law, members of the House who die cannot be replaced until an election is held, and there would be a substantial problem if the House could not muster a quorum while the special election of, say, two-thirds of the House was complete. (Indeed, this proposed amendment was the subject of my very first post on CoOp.)

Nobody, though, has thought much about what would happen if someone bombed the Supreme Court and took out most of the Justices.  Here the issue is not the time it would take to nominate and confirm replacements.  Cases can be held over until a full bench is present. Instead, the problem would be that such an event would give the President an unprecedented (at least since George Washington) opportunity to stack the Court.  I would hope that an informal arrangement would be made in that dreadful circumstance to say that the party affiliation of the new Justices would match what was there prior to the bombing.  Perhaps there should be some thought to establishing a provision (not unlike the Twenty-Fifth Amendment) that would formalize that idea.


Fourth Circuit Opinion on the Individual Mandate

The wire services are reporting that the Fourth Circuit has rejected the challenge to the individual mandate on standing grounds.  I will add a link when one becomes available.

UPDATE:  There are two opinions.  Here and here.

UPDATE #2:  I will have more to say about these decisions later, but I would draw your attention to a few points.

1.  The Court’s holding that Anti-Tax Injunction Act prohibits the exercise of federal jurisdiction to enjoin the individual mandate prior to 2014 is consistent with an argument that I have made in many posts; namely, that courts should not and cannot reach the merits of this case for a long time.

2.  The concurring opinion in Liberty University takes the view that (if the merits are reached), then the individual mandate is a valid exercise of Congress’s taxing power.  This is the first judge who has accepted that claim.

3.  The dissenting judge in Liberty University argues that compelled purchases of goods are within Congress’s Commerce Clause power.  I think this is the most robust statement in favor of Congress in any of the opinions handed down thus far.


LL.M. Roadmap: An International Student’s Guide to U.S. Law School Programs

I’m pleased to announce that my colleague George Edwards has a new book coming out that will be really useful for foreign students who are thinking about or are in an LL.M program.  The release date is next week, and George will be having an event at Harvard Law School on September 16th to mark the book’s publication. We focus on J.D. students when we think about the costs and benefits of legal education, but LL.M students are a significant part of many law schools and they need the kind of guidance that this book provides.


Here’s One Solution to the Post Office’s Problems

From the New York Times:

“Noting that some great books have been written based on letters sent by the Founding Fathers and by soldiers, Senator Claire McCaskill, Democrat of Missouri, urged the postmaster general to run an advertising campaign urging Americans to send more letters to each other.

‘There is something special about receiving a piece of first-class mail, knowing that it comes from someone you care about,’ she said. ‘I really believe that if someone would begin to market the value of sending a written letter to someone you love, you might be surprised what it will do for your Christmas season.'”

Sigh . . .


John Bingham on the Promise of America

I haven’t done a Bingham post lately (I’m up to 1850 in the biography, when he was a thirty-five year old lawyer still in private practice). One early clue about Bingham’s constitutional thinking is in a speech he gave at his alma mater, Franklin College, in 1851. For those of you who are Lincoln fans, it’s the equivalent of “Honest Abe’s” 1838 Lyceum Address. Anyway, here is a quote that I love from that speech:

“When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.”



The Post Office

One of the most eye-opening experiences that I had as a lawyer was when I worked on the postal rate administrative process.  Hundreds of hours spent by many organizations writing briefs to the Postal Rate Commission arguing why the price of stamps should go up two cents instead of three cents.  If you want to convert someone into a libertarian, this is excellent shock therapy.

As the Post Office is now on the brink of insolvency, it’s worth thinking about what should be done with the mail service. One approach involves slimming down its costs.  For example, we could close post offices, reduce the salaries of employees, and abolish Saturday delivery. (Raising stamp costs will probably just drive more business to FedEx and UPS, but maybe I’m wrong about that.) Another thought is that we should turn the Post Office into something that only delivers mail to rural or hard-to-reach places where private mail service would be costly for the poor. It would still lose money, but it would lose a lot less money.  Everyone else would have to rely on private firms for mail.  Folks involved in direct mail (catalogs, advertisements, etc.) would hate this change, but they are currently being subsidized for no good reason by taxpayers through cheap postage.

The problem, of course, is that the Post Office employs a lot of people, and thus a broad restructuring of the service would be very painful.  Unfortunately, I don’t think there is a way to make the service profitable.



Introducing Guest Blogger Josh Chafetz

I am pleased to welcome Professor Josh Chafetz of Cornell Law School, who will be joining us this month.  Professor Chafetz is the leading scholar on parliamentary procedure in the United States (in my humble opinion) and is also making significant contributions in other areas of constitutional law.

Prior to joining Cornell in 2008, Josh got his B.A. from Yale, was a Rhodes Scholar, returned to Yale for his J.D, and then clerked for Judge Guido Calabresi on the Second Circuit. Professor Chafetz’s book on Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, was published by Yale University Press in 2007. His articles have appeared in the Yale Law Journal, the University of Chicago Law Review, the University of Pennsylvania Law Review,and the Duke Law Journal.

We look forward to your posts!


Justice by Designation

I was listening to a discussion on NPR about Supreme Court recusal practices, and the point was made (as it frequently is when this topic is raised) that the Justices must adopt narrower recusal standards than other judges because nobody can replace a missing Justice.  Now there is a proposal by Senator Leahy to make senior Justices eligible to sit on Supreme Court cases in place of a recused Justice, but that is problematic because the pool of senior Justices capable of hearing cases is usually so small and the ideological views within that pool will be well-known to litigants who want to game the system.

This leads to wonder whether we should say that when a Justice is recused then any federal circuit judge can be tapped to “sit by designation” on the Supreme Court.  After all, we let federal district judges sit by designation in the circuits all the time.  This could be subject to some limits (only active judges, or not judges from the federal circuit whose ruling is being reviewed), the most of important of which is that the selection should be random instead of under the control of the Chief Justice. I think the judicial system might be improved if the Justices were subject to the same recusal standards that other judges follow and if there was an occasional “special guest star” appearance by other judges on the Court.