Tag Archives: SCOTUS

And the funniest guy on the Supreme Court is…


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All work and no play makes Jack a dull boy. And Chief Justice Roberts has taken that to heart.

On Monday, while the Supreme Court was taking oral arguments and handing down opinions, the Chief took several opportunities to poke fun and to shoot off a witty question.

After handing down a unanimous opinion rejecting AT&T’s argument that because corporations can be considered persons for free speech purposes, they can also be considered to have privacy rights like persons, too, Roberts, writing for the Court, took AT&T to task, denying that corporations have anything like “personal privacy” for purposes of FOIA (Freedom of Information Act). As reported by Slate writer Dahlia Lithwick, the Chief had started during oral arguments for the case:

[T]he chief spent the better part of the hour poking fun at AT&T’s claim that the adjective personal means the same thing as the noun person, such that the statute’s treatment of corporations as “persons” means that corporations are also somehow capable of getting “personal.” As he explained at argument, that claim makes no sense. “I tried to sit down and come up with other examples where the adjective was very different from the root noun,” he observed at the time. “It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn’t have much to do with craftSquirrelsquirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different.”

It didn’t stop at oral arguments, either. The opinion took a jab, too.

“The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.”

Catch the article, including when Justice Scalia got into the act, too, over at Slate.com.

APROPOS: court artist Art Lien added a few extra flourishes to his work on Monday to accentuate the lighter mood, drawing Justice Scalia as a cat and Chief Justice Roberts with a cob of corn in his hand.

Will Justice Roberts skip the State of the Union?

Remember when President Obama took a shot at the Supreme Court during last year’s State of the Union address?

Go here to watch a short clip of it if you don’t.

President Obama (aka POTUS) chided the Supreme Court for their ruling in Citizens United, which overturned aspects of then current campaign finance law, specifically cutting off the shackles on corporations to allow them to spend money independently in candidate elections. He said:

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said. “Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

Justice Alito, as you can see in the video above, shook his head and mouthed what is widely believed to be “Not true, not true…”

Whether it was “not true” has been debated much since; the question remains: will more members of the Supreme Court (SCOTUS, if you didn’t catch it yet) skip this year?

Traditionally, the court maintains an aura of non-partisanship. It’s job is to interpret the law against the constitution, not to play a partisan role in making the law. This isn’t to say that the members of the court don’t lean one way or the other. But their job is not a partisan one.

When the President takes partisan cheap shots at the Justices of the Supreme Court, to their face, there isn’t much a Justice can do while maintaining his or her dignity. Justice Alito has already stated that he will join Justice Thomas  and Justice Scalia in skipping this year’s event; will Justice Roberts avoid it, as well?

Tune in tonight at 7 PM MST, 9 PM EST, to find out.

Chamber of Commerce v. Whiting before the Supremes

Remember this one? This case deals with series of laws passed in Arizona in response to the failure of the federal government to enforce federal immigration laws. As summarized by the ACLU in September:

As part of a comprehensive overhaul of the immigration laws, Congress adopted a series of carefully calibrated measures, beginning in the mid-1980s, to enforce the federal bar on hiring unauthorized immigrant workers while preserving the civil rights of immigrant and minority communities. Unsatisfied with these efforts, Arizona adopted its own law imposing far more severe sanctions on employers who hire workers that Arizona believes are unauthorized to work, and requiring employers to participate in a federal employment verification program that the federal government chose not to make mandatory.

The question of the case is whether Arizona has the power to enact certain laws through the “licensing” provision of the federal law. Yesterday, the Supreme Court held oral arguments on the case (a transcript is here).

As Josh Blackman notes, Justice Scalia went straight to the licensing issue during the arguments and “remarked that the “through licensing” provision is really the only avenue the federal government left open for the states to deal with immigration.” Because no one thought, when Congress enacted the federal law, that the federal government would fail to enforce the law, Arizona was left with only limited means of remedy.

JUSTICE SCALIA: That would be remarkable
only because nobody would think that with this scheme in place, the Federal Government would not enforce it. Of course no one would have expected that. But what Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other States are in serious trouble financially and for other reasons because of — of unrestrained immigration. And therefore, they had to take this very massive — I agree this step is massive, and one wouldn’t have expected it to occur under this statute, but expectations change when the Federal Government has — has simply not enforced the immigration restrictions.

The Justices proceeded to debate, and discuss, the meaning of the word “licensing” and whether this really was the only outlet for Arizona to act. Check out a good summary and a few choice clips from the transcript at Josh Blackman’s blog.

Overall, prognosticators seem to think that the Justices leaned towards Arizona, predicting a 5-3 win for the state. Justice Kagan was not on the bench for the arguments.

Justice Kennedy, consistently a swing vote on the court, remarked that the state’s position–requiring that the voluntary federal E Verify program be mandatory–seemed to be at odds with federal policy. “You’re making it mandatory.  That is almost a classic example of doing something inconsistent with the federal requirement.”

Apropos: at least one of the Justices  did not seemed concerned with the licensing issue. Justice Sotomayor seemed more concerned with the issue of federal preemption. (She also made a faux pas when she referred to “illegal aliens,” quickly correcting herself with “undocumented aliens,” as she had used in previous opinions.)

“Don’t create a passive President”: Looking at “Signing Unconstitutional Laws” by William Baude (part 3, Conclusion)

President George W. Bush signs the reauthoriza...

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Part three of my look at William Baude’s “Signing Unconstitutional Laws” (86 Ind. L. J. (forthcoming 2011))… today we are looking at the risks associated with signing unconstitutional laws.

What are the risks? Even if, enlightened as he may be, the President signs the law with no intention of acting or executing it, there is no promise that the law will not be acted on by others, future Presidents, private actors, or perhaps the judiciary. Once on the books, Baude says, it is “a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” (Korematsu v. United States, 323 U.S. 214 (1944) (Jackson, J., dissenting). Baude cites the examples of Miranda v. Arizona (384 U.S. 436 (1966)) and Amore v. Novarro (Amore v. Novarro, ___ F.3d ___ (No. 08-3150) (2d Cir., June 22, 2010))  for examples where courts followed their own reading of the law “on the books,” regardless of the perception and belief of the President on the law’s constitutionality. So signing a law, however much the President does not believe it unconstitutional, presents very real risks of future violations of the Constitution by signing the law.

Risks aside, when is a bill unconstitutional? Is it even a problem if the bill goes into statute unconstitutional?

There are situations, Baude argues, where there are constitutional obligations on the President to sign and enact a bill, however unconstitutional. In reality, there is no conflict between a law’s passage, its subsequent ruling as unconstitutional, and its remaining “on the books.”  The statutes affected in United States v. Eichman (496 U.S. 310 (1990)) (overturning flag burning prohibitions) and United States v. Booker (543 U.S. 220 (2005)) (holding statutes on sentencing guidelines to be unconstitutional) are both still “on the books” in the federal statutes, despite Supreme Court action to overturn their constitutionality.  Indeed, Baude states that there really is no problem with passage of a law that may later, in different situations, be found to have unconstitutional applicability.  He is merely putting the question of constitutionality aside until a later day.

And this is where we get to “signing statements.”  Signing statements are the President’s way of making known his views on the law he is signing. It allows the President to warn parties about his view of how the law is to be or should be executed, especially within the executive branch. For this reason, Baude seems to suggest that a signing statement allows the President the flexibility to sign a bill that has parts both constitutional and unconstitutional.  In essence, as Baude summarizes, it is as if a President were saying:

“[N]ow, to be clear, Chapter Two of this law is unconstitutional, and I am signing it only because I am confident that I and my successors will never enforce it, and the courts would disregard it in the unlikely event that it was enforced. Moreover, I am only willing to take the risk of placing it on the books because Chapter One does something very important—indeed, it helps me fulfill some of my other constitutional duties.” “now, to be clear, Chapter Two of this law is unconstitutional, and I am signing it only because I am confident that I and my successors will never enforce it, and the courts would disregard it in the unlikely event that it was enforced. Moreover, I am only willing to take the risk of placing it on the books because Chapter One does something very important—indeed, it helps me fulfill some of my other constitutional duties.”

At this point, Baude begins to shift to evaluating the Constitutional obligations–the duties–under which the President works when he evaluates whether to sign a bill, some of which duties may even require the President to sign a bill he deems to contain unconstitutional aspects. “Our Constitution is mostly a charter of structural rules and negative liberties,” he says, generally limiting government, but not requiring it to affirmatively take action, with some exceptions, including bills that may be necessary to preserve and protect the Constitution itself.

This is not the same thing as suggesting that it is okay to violate the Constitution in times of great necessity. Remember, there is no don’t-sign-unconstitutional-bills-clause, so signing an unconstitutional bill does not violate the Constitution per se. The point of this analysis is to explain why a sensible President would ever have a constitutional reason to sign an unconstitutional bill, especially in light of the constitutional risks entailed by doing so.


  • The Voting Rights Act in 1970.  In addition to extending the soon to lapse voting rights established by the Voting Rights Act of 1965, which had been intended to force the states to comply with the 15th Amendment, the Voting Rights Act of 1970 forced states to change the minimum voting age from 21 to 18 in not only congressional elections, which Congress could do under its Article I authority, but also for all state elections, something that Article I did not grant Congress authority to do. President Nixon recognized this, and he tried, unsuccessfully to convince Congress to amend the bill.

When the Voting Rights Act of 1970 was passed by both Houses of Congress, it thus contained a number of provisions enforcing the Fifteenth Amendment, and a voting-age provision that exceeded Congress’s enumerated powers. With no line-item veto, the President had to either sign it into law and thus put his name to a provision that he thought violated the Constitution, or veto it and thus permit violations of the constitutional rights of thousands of black voters.

President Nixon signed it, anyway, the Supreme Court struck down the unconstitutional portion, and the next year an amendment to the Constitution was passed solving the problem. “President Nixon is an unlikely exemplar of presidential constitutionalism, but this time he nailed it.”

  • President George W. Bush in 2001 signed intelligence appropriations bills that he felt contained provisions requiring more executive reporting to Congress than he thought proper.  Article IV grants that the federal government must “guarantee to every State . . . a Republican Form of Government and . . . protect each of them against Invasion.”  A positive affirmation of Presidential duty, this requires protection of a state’s security from invasion and guarantee of a republican form of government. “If the law is signed, an unconstitutional provision might be enforced in the future. If the law is not signed, an invasion might succeed or a republican government might be overthrown.”  Therefore, the President signed the intelligence appropriations bill because he felt that his duty to protect the country outweighed the potentially unconstitutional reporting requirement to sit, ignored, in the Statutes at Large.

    Other appropriations bills he signed through this period included similar reporting requirements that he thought unconstitutional and that he similarly pushed to the wayside. Whether he was correct as to the level of risk to national security, President Bush was correct, by Baude’s measure, to balance the importance of the law for upholding his constitutional duties against the risk of putting the unconstitutional provisions on the books.

  • 1867 Army Appropriations Act.  President Andrew Johnson signed it in spite of his belief that it “deprive[d] the President of his constitutional functions as Commander in Chief” and “denie[d] to ten States . . . their constitutional right to protect themselves.”  He used his other executive powers to mitigate what he saw as the unconstitutionality of Reconstruction. (See Joshua Chafetz, Impeachment and Assassination 95 Minn. L. Rev. (forthcoming 2010) at 55, available at http://ssrn.com/abstract=1568950.)

With the assumption that there are laws that a President must, categorically, veto, what kind of criteria exists for a President to justify signing a law containing unconstitutional provisions?  Baude suggests that such a law must be partially constitutional and partly required by the President’s duties.  He must consider the size of the risk and the magnitude and importance of the possible violations. It’s a dynamic analysis, and in the end, regardless of the choice to sign or veto, the President must be prepared to mitigate the results.  His is the duty to uphold the Constitution, first and foremost.

In conclusion, Baude quotes the always memorable Justice Scalia: “The Constitution . . . is not an all-purpose tool for judicial construction of a perfect world.”  And, to take the inverse, Baude warns us not to underestimate the Constitution, either: “We must be just as wary of the reverse–assuming that yesterday’s formalisms are inadequate for today’s government.”

It’s an interesting proposition, and perhaps one that bears consideration.  The President has obligations, as well as his often recited limits.

There is also a broader lesson about what we remember and what we forget. We are all too eager to remember the long list of things the President must not do. We more easily forget that there are many things that he must do, and even more after the Reconstruction amendments. Our Constitution does not create a passive President. We should not make him into one.

Give Iowa a try…

Map of USA with Iowa highlighted
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Iowa judges are under attack for unpopular rulings that have permitted gay marriage in their state.  Unhappy about the rulings, and displeased that so few could overturn the will of the people, activists are looking to check the power of the judges by way of the ballot box. From the Wall Street Journal

[T]his year, conservatives in Iowa are waging a campaign to vote out of office three supreme court judges, who joined a ruling last year that Iowa’s law barring the recognition of same-sex marriage is unconstitutional.

This isn’t the first time I’ve noted the action of one piece of our political “family” (executive, legislative, and judicial) acting against another to check its power.  Our constitution was written in such a way as to disperse power and spread it out, limiting the ability of any one group to tyrannize another. In this case, we see the people, the legislative function by which laws are usually made, acting to check the power of the judiciary.

Judges are intended to be independent so as to be free from political pressure.  This is to enable them to make decisions that are based solidly in the law and the constitution and to act as a restraint against the power of the majority to protect minorities.  However, even this power can be checked. Even when Supreme Court of the United States finds that a law of Congress is misbegotten and unconstitutional, the right to amend the constitution, however high that bar has been set, is still available .

On the state level, because justices are often selected by the executive, they usually have to stand for a “confirmation” vote periodically in order to retain their office.  Usually, because of the low levels of interest in the predominantly mundane work of the courts, few voters follow or even care about confirmation of a judge, and voter turnouts are often low.  In Iowa, voter anger is seeing to assuring that changes.

“We need to vote them off the bench to send a message across Iowa that we, the people, still have the power,” said Bob Vander Plaats, a Republican state politician who is leading the campaign. “Not only will it send a message here in Iowa, but it will send a message in California, in Arizona and across the country.”

The effort in Iowa, the Post reports, worries gay rights advocates and legal experts who say it is wrong to punish judges for unpopular decisions. But on the flip side, campaign advocates say they are simply exercising their democratic right to rein in a judiciary that has overstepped its authority.

Vander Plaats announced this month the creation of Iowa for Freedom, which has rented office space and hired six full-time staff members, who plan to wage a political campaign replete with mailers, phone calls and door-knocking, according to the Post.

While the judges have not, yet, said anything in their own defense, this does raise the question of independence of the judiciary.  Can a judiciary that must cater to the winds of political whim ever be completely, to say nothing of partially, independent and objective sufficient to provide a fair trial?  How can a judge provide a fair trial when he, or she, knows that the parties before them may, or likely will, work to support or oppose their next election?  The result would be that the politically and financially powerful will end up winning their cases, while minorities and poor will lose.

On the other hand, there must be some check against the power of the judiciary to set policy from the bench.  If the judiciary, by one decision, can change a law established by the will of the people, what does it matter that the people have spoken or that the legislature has acted?