Author: Darren Hutchinson


The Census and “Illegal Aliens”

The Los Angeles Times has published an op-ed that criticizes the inclusion of undocumented individuals in Census data and the subsequent usage of this data to allocate House seats.  The authors, Richard Greener and George Kenney, contend that allocating House seats based on data that include nonvoting undocumented individuals unfairly privileges states with higher percentages of undocumented persons.  Greener and Kenney liken this situation to the benefit Southern states gained in Congress from the counting of slaves and then freed blacks — despite their inability to vote.  They argue that the allocation of House seats should rest only on numbers of “citizens,” rather than “illegal aliens.” 

There are several problems with the authors’ reasoning. First, they seem to conflate that status of “noncitizen” with “illegal alien,” even though legal aliens are also noncitizens.  It is unclear why they focused only on the supposed unfairness of counting illegal aliens when legal residents would present similar issues (e.g., they cannot vote).

Furthermore, as other commentators have argued, the Constitution seems to resolve this matter.  The Fourteenth Amendment states that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”  The Constitution requires an allocation based on “the whole number of persons,” not “citizens.”

Finally, other nonvoting groups impact the allocation of representatives, but the authors seem unconcerned with these populations.  For example, in many states, felons are permanently disenfranchised.  In addition, some states have relatively younger populations than others.


“Deal” Reached on Don’t Ask, Don’t Tell

President Obama has experienced conflict with some LGBT rights advocates who contend that he has moved sluggishly on the issue of Don’t Ask, Don’t Tell.  DADT requires the discharge of known “homosexuals” from the military.

During his presidential campaign, Obama promised to repeal the ban, and since his election, social movement organizations have pushed him on this issue.  In order to appease liberal advocates of LGBT rights, President Obama first promised that he would start looking into the issue of lifting the ban last year. Earlier this year, Secretary of Defense Robert Gates announced a formal “study” of the impact of lifting the ban.  The results of the study are due in December.

Representative Patrick Murphy and Senator Lieberman, however, introduced bills to repeal DADT. These bills conflict with the Obama’s “measured” approach.  Yesterday, several media outlets reported that Obama reached a compromise with Murphy, Lieberman and LGBT rights organizations.  Under the deal, Murphy and Lieberman would amend their bills to provide that DADT would remain the law until such time that the Defense Department completes its review, determines that a repeal of DADT will not impact military readiness or recruitment, and promulgates regulations on the issue. 

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The New Line-Item Veto Proposal: Constitutional But Weak?

Yesterday, President Obama sent Congress a proposal to enact the Reduce Unnecessary Spending Act of 2010.  The bill would authorize the president to request that Congress rescind items of newly enacted budget authority. Congress would then accept or reject the proposed rescission in a vote by both houses.

Because the bill would not give the president the authority to make actual changes to legislation, it does not seem to present any constitutional problems. This fact, however, might also make the measure a weak weapon against spending. The same Congress that passed the funding measure would then have to decide whether it approves the original legislation or it agrees with the president that the rescission should take place. Although I can imagine certain circumstances where a president could prevail, in most circumstances, I could easily see Congress simply affirming the original funding.


Another Opinion: US v. Comstock

The Supreme Court has held that Congress can empower district courts to order the civil commitment of mentally ill, sexually dangerous offenders beyond their criminal sentences.  The Court held that the Necessary and Proper Clause validates the statutory provision, which the Court links to various federal regulatory interests, including the mental health of inmates and the safety of communities where inmates are released.  The ruling does not consider claims that the law could violate the Due Process Clause.

Predictably, the liberal justices joined Breyer’s majority opinion, but Chief Justice Roberts did also. Justice Alito joined Kennedy’s concurrence.  Only Scalia and Thomas dissented; the dissent offers quite a narrow vision of federal power (one that even Alito and Roberts could not accept).


Courting Kennedy

[Note: This essay is cross-published on the blog Dissenting Justice.]

President Obama and other supporters of Elena Kagan have argued that she has the capacity to form coalitions with conservatives, especially Justice Anthony Kennedy — the Supreme Court’s lone swing vote. There are a number of underlying assumptions to this argument, including that Kennedy’s opinions are malleable on a significant number of issues and that a colleague on the bench can push him on those malleable questions.

There is certainly some legitimacy to these assumptions. Political scientists who research the Court have found that ideological moderates are among the most malleable members of the bench. Furthermore, Sandra Day O’Connor and David Souter most likely influenced Kennedy in the influential case Planned Parenthood v. Casey, which upheld Roe v. Wade— even as it opened the door to far more intrusive regulations of abortion. These observations, however, do not demonstrate that Kagan or any other future justice can wield influence upon Kennedy (or other conservatives).

First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O’Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy’s vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against “partial-birth” abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy’s own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy’s opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can “flip” Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the “best argument” combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that “conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room.” Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.

Note: Other legal commentators have made similar arguments. See:

Is Kennedy Easily Manipulated

Asking “Who can sway Kennedy?” is no way to pick Justice Stevens’ replacement.


Elena Kagan to Receive Nomination

According to several news reports, President Obama will nominate Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens.  Because Kagan lacks a long paper trail of academic writings, it is difficult to predict her judicial philosophy.  From a political perspective, this could potentially help Obama avoid a long confirmation battle. Nevertheless, some critics who want to preserve the ideological makeup of the Supreme Court, believe that Kagan could actually push the Court rightward.  If these arguments take hold, then Kagan could face serious questions about her ideology and judicial philosophy from both liberals and conservatives.


President Obama Criticizes Conservative “Judicial Activism”

During a recent interview, President Obama discussed the Supreme Court appointments process, and he offered a critique of conservative judicial activism.  Specifically, President Obama argued that:

It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.  And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.

 What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.  And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.

And so I’m not looking at this particular judicial nomination through that prism alone, but I think it is important for us to understand that judicial — the concept of judicial restraint cuts both ways.  And the core understanding of judicial restraint is, is that generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, et cetera, that the administrative process that goes with it is afforded some deference as long as core constitutional values are observed.

 President Obama correctly states that judicial activism is typically associated with liberal judges.  Many liberal constitutional law scholars, however, have accused conservative judges of being too invasive.    Indeed, both liberal and conservative judges have ignored public opinion and the desires of the political branches — starting with the anti-regulatory rulings of the Lochner and New Deal era, the criminal procedure rulings of the Warren Court, and the assault on civil rights during the Rehnquist Court.   Commentators across the political spectrum, however, most often use the term “judicial activism” to condemn opinions that they find disagreeable.

 Obama’s analysis raises two interesting issues.  First, it is unclear what rulings he believes were excessive or “activist” during the “’60s and ‘70s.” Conservatives have tossed the activism charge around loosely in order to disparage the Warren Court’s protection of individual liberty and equality. Many of these arguments, however, are inaccurate because from the perspective of national public opinion, the Court’s civil rights rulings enjoyed majoritarian support.  Also, the Court did not act vigorously on matters like school desegregation or voting rights until Congress passed comprehensive legislation addressing these concerns.

 On other issues, like criminal procedure, that lacked public support, one could make a sound argument that the political process should not enjoy deferential judicial review.  Although conservatives and liberals may debate the meaning of the procedural rights protected by the Bill of Rights and the Due Process Clause, these are certainly “core constitutional values.”  

Obama’s comments also raise the issue of how the Court should interpret the Constitution.  He argues that the Court should extend deference to the political branches so long as they respect constitutional limits. But reasonable jurists can (and often) disagree on the meaning of the Constitution.  In fact, the judicial activism rhetoric often masks underlying disagreement over judicial elaboration of constitutional values. 

I suspect that Obama offered these comments in order to shape the terms of the debate of his next Supreme Court nomination. If so, the confirmation hearings could cover far more interesting terrain than the last round.