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Tag: "constitutional interpretation"

The War on Drugs and the Bill of Rights

[ 38 ] May 20, 2011 |

I have an article up at the Prospect putting this week’s diminution of Fourth Amendment rights in context:

That the other eight justices signed on to the majority opinion shows how bipartisan a cause the war on drugs has become. It is especially disappointing that President Barack Obama’s two appointees — Justices Elena Kagan and Sonia Sotomayor — joined the majority to dilute Fourth Amendment protections. It is too early to fully evaluate either justice, but their decision in King vindicates progressives who felt that Obama squandered an opportunity to install committed civil libertarians on the Court. Ginsburg, 78 and in poor health, is the only justice on the Court with a strong commitment to civil liberties, and given the likely configuration of the Senate even if Obama wins re-election, it will be difficult to replace her.


As with the broader drug war, civil-liberties violations have a disparate impact in terms of race and class. It is generally not wealthy white suburbanites who have to worry about being stopped and frisked on the streets or having their doors broken down. Like the grotesquely harsh sentencing disparity between powder and crack cocaine possession, this erosion of Fourth Amendment rights has persisted because wealthy people are largely insulated from its effects.

All of these civil-liberties violations might be more tolerable if they were part of a valuable and effective policy. But while the drug war has been successful at locking up huge numbers of people (especially young African American men), it’s done little to reduce drug use. Alas, the drug war has been far more effective in curbing our civil liberties.


The War on Drugs v. the Constitution

[ 66 ] May 17, 2011 |

Under the Fourth Amendment, searches of a person’s home are presumed to require a valid warrant unless there are “exigent circumstances.” The Supreme Court has also, logically enough, held that these exigent circumstances generally cannot be created by the police’s own behavior. The War (On Some Classes of People Who Use Some) Drugs, however, is where the Bill of Rights goes to die. So, yesterday, the Supreme Court upheld a warrantless search of a home in which the police had time to obtain a warrant, but created their own “exigent circumstances” by following a suspect into his apartment complex and smelling marijuana. Nor surprisingly, the opinion overruling those Trotskyites at the the Supreme Court of Kentucky was written by “Strip Seach” Sam Alito. Dismayingly, and demonstrating again that the Supreme Court essentially lacks a real liberal wing, the decision was 8-1, with both of Obama’s appointees in the majority. Ruth Bader Ginsburg, adding to the case that she should stay on as long as she damned well pleases, dissented:

The question presented: May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.


That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Ante , at 8. Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.


How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?

The key problem with the case, as Ginsburg convincingly argues, is that it’s the latest example of the drift of the exigency exception away from actual emergencies and toward the mere convenience of the police. If the police have time to obtain a warrant and there isn’t an actual emergency, they should be required to obtain one. But when security in the home faces the War (On Some Classes of People Who Use Some) Drugs, it generally loses.

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The “But You Need To Strike Down Something!” Argument Against the ACA

[ 51 ] May 13, 2011 |

In comments, I think Pithlord gets at what legal arguments about the ACA ultimately boil down to: “In the real world, if courts never enforce a standard, then it isn’t real.” The commerce clause compels the Supreme Court to strike down something, so even if the arguments for doing so are notably bad, why not the ACA? In his brilliant decimation of arguments that the ACA is unconstitutional, Andrew Koppelman reports a colleague describing it this way: “(1) There must be some limit on federal power; (2) I can’t think of another one; and therefore, (3) the limit must preclude the individual mandate.” Section III of Koppelman’s paper is a good response to this argument, but to me there are two especially obvious reasons to reject it:

  1. U.S. v. Lopez Fortunately, we already have a precedent that sets limits on the commerce powers of the federal government.   And because the law struck down was actually very marginal to the modern federal regulatory state — the law in question didn’t directly regulate the economy, it wasn’t essential to a broader regulatory scheme, and there was no reason to believe (and no attempt by Congress to show) that the states were incompetent to deal with the problem — it didn’t logically threaten New Deal and Great Society programs that only a tiny fringe believes to be unconstitutional.   Because the individual mandate meets all of the crucial conditions that the Gun-Free School Zones Act didn’t, it would lie around like a loaded weapon whenever someone wanted to challenge a federal program and be incapable of principled application, leading to all kinds of crank District Court judges throwing out random parts of the U.S. Code that they don’t like and possibly being upheld in some cases by cranks higher up the appellate chain.   So, in other words, striking down the ACA solves a non-existent “problem” by creating what to any non-libertarian are very serious problems.
  2. Gonzales v. Raich Not only does striking down the ACA to send a message solve an imaginary problem, there was a much better recent candidate if one is so inclined, and the resolution of that case should make the constitutionality of the ACA a no-brainer.   To be clear, I think Raich was correct and would have joined the majority, but if you wanted to send some kind of symbolic message this case would have been a much better vehicle.   In terms of the conditions discussed above, the case for prosecuting people growing medical marijuana is weaker than the case for the legality of the mandate — in particular, since nobody disputes that people could have been prosecuted for selling marijuana to people without a prescription, there wasn’t the same free-rider problem that exists with medical insurance markets.   In addition, like Wickard this case reveals the silliness of the “activity/inactivity” distinction.   What made Raich’s actions subject to federal jurisdiction was not the “activity” of growing marijuana (which is in itself a state matter) but the “inactivity” of not buying it from the national market.    For Kennedy and Scalia to vote to strike down the ACA after joining Raich would be hackery of the worst sort — partisan and not “political” in the sense that all constitutional law is political.

I can understand why people sympathetic to arguments that the ACA is unconstitutional want don’t want to focus on the actual merits of the argument, but the pragmatic justifications really don’t work either.   Even if we accept that it’s symbolically important to set judicial limits to the federal commerce power, a regulation that is integral to a a federal regulatory scheme that addresses an important problem that states are clearly incompetent to solve independently would be a horrible, horrible place to draw a line in the sand.

Ryan’s Plan Contains an Individual Mandate

[ 107 ] May 5, 2011 |

I think this settles the question.

The Supreme Court Gave the War on Reproductive Freedom the Green Light

[ 53 ] May 5, 2011 |

As a follow-up to Dahlia Lithwick’s excellent recent piece about the proliferation of state anti-abortion restrictions, I have a new Prospect column arguing that while in some ways these restrictions challenge the Supreme Court doctrine, the bulk of the regulations are all too consistent with Casey:

But the victory came at a steep price. Casey, as O’Connor had long advocated, replaced Roe’s clear “trimester framework” with the opaque “undue burden” standard. That is, an abortion regulation was now unconstitutional if it unduly burdened a woman’s fundamental right to choose, and the Court held that all but the spousal notification requirement were not so burdensome as to curb rights. In theory, this subjective formulation could provide a fairly robust protection of reproductive freedom. The way the Casey plurality actually applied the standard, however, all but guaranteed that it would not. The Pennsylvania law is now a model for the proliferation of anti-abortion legislation that has followed in its wake.

Particularly problematic in Casey was the plurality’s decision to join the anti-Roe dissenters in upholding a 24-hour waiting period for women who wish to obtain an abortion. Waiting periods would seem to be the definition of an undue burden in at least two respects. First, with the justices’ assumption that women who choose to obtain an abortion may be acting impulsively or irrationally, the waiting period, like the spousal-notification provision, is inconsistent with the Court’s decisions protecting gender equality. Second, waiting periods place a particular burden on poor and rural women, for whom an additional trip to an abortion provider can be prohibitively costly or time-consuming, while urban women with flexible job schedules may have easier access.

I think the last point is particularly crucial. I could have lived with the new “undue burden” if the Court had signaled that it would pay some attention to regulations that had a disproportionately large impact on women who already had limited geographical and financial access to abortion. Instead, starting with Casey it did the opposite. I don’t think it’s a coincidence that the two regulations the Court found unconstitutional under Casey (the ban on D&X abortions and the spousal notification provision) would not have a significantly greater on poor, rural women than women similarly situated to Sandra Day O’Connor.

The Proper Response to Prosecutorial Misconduct

[ 36 ] May 4, 2011 |

I suppose proposing this is like asking for a unicorn farm, but John Paul Stevens is right about what an appropriate response to Connick. v. Thompson would look like:

Stevens said Monday that the nature of the American criminal justice system—where most local prosecutors are elected—“creates a problem of imbalanced incentives that ought to be addressed at the state and national level.”

Because district attorneys often run on tough-on-crime platforms, the pressures to ensure convictions far outweigh the rewards for respecting rights of the accused, Stevens said.

That could be fixed, he said, by making district attorneys liable when their subordinates commit outrageous violations of constitutional rights. Private-sector employees already are liable for their employees’ misconduct, under a legal doctrine called respondeat superior.

The doctrine “provides a powerful continuing incentive for employers to make sure that their employees are adequately trained,” Stevens said, something “especially important where electoral incentives encourage abuse.” More important, he said, “it would produce a just result in cases like Thompson’s in which there is no dispute about the fact that he was harmed by conduct that flagrantly violated his constitutional rights.”

What’s most remarkable of about the work of the conservatives on the Supreme Court and the 5th Circuit is their utter indifference to the effects not providing serious disincentives for prosecutorial misconduct.

House GOP Votes For Most Egregious Constitutional Violation There Absolutely Ever Was

[ 15 ] May 4, 2011 |

The Senate Republican budget will probably require people to eat broccoli deep fried Twinkies!

If they don’t take their own constitutional arguments seriously, I’m certainly not going to.

Sticking Up for the Already Grossly Overrepresented

[ 25 ] April 29, 2011 |

I have a new column up about the Supreme Court stretching to defend corporate interests — who saw that coming? — in AT&T v. Concepcion. Another point about the preemption cases is that they’re a classic example of Lemieux’s Law: Nobody Actually Cares About Federalism.

Nor can the outcome in AT&T v. Concepcion be justified by broader conservative constitutional principles. The Court’s conservatives are allegedly committed to federalism — that is, states’ rights — but here they called for federal uniformity. (Some of these same justices are likely to argue against federal uniformity when the Affordable Care Act and its alleged intrusion on state sovereignty comes up). From the Fugitive Slave Act to the Federal Partial-Birth Abortion Act, alleged conservative commitments to “federalism” rarely survive clashes with cherished conservative interests, and Wednesday’s ruling is another case in point.

You could be committed to federalism and uphold uniform rules where Congress clearly preempted state law — but in this case it did no such thing.

The Worst Justices Since McReynolds

[ 27 ] April 21, 2011 |

I have a new Prospect article up on how Roberts and Alito aren’t as bad as Scalia and Thomas…they’re worse.

To make one more point about the remarkable Stuart Taylor article I discuss, consider his assertion that Alito will be able to “keep his political preferences out of his legal rulings.” Let’s leave aside the fact that pretty much by definition cases that reach the Supreme Court give justices a large amount of discretion, which means that there’s no way to keep one’s political preferences out of politically salient cases. What’s especially striking is that other than invoking the meaningless buzzword “judicial restraint,” Taylor doesn’t actually tell us what Alito’s interpretative theories are. However sporadic they are in applying them, I can identify the legal values that for Scalia and Thomas will sometimes clash with their immediate political values. But what grand theory does Alito use? I’m quite confident that Taylor still couldn’t tell you, because of course there’s no trace of any overarching interpretive theory in Alito’s jurisprudence.

I also have a little more on “sovereign immunity” and conservative jurisprudence, with a big tip of the hat to Anderson for the Kyl joke.

The “Minimalist” Illusion

[ 6 ] April 13, 2011 |

Last week’s Establishment Clause standing case shows that the allegedly crucial divide between “minimalists” and “fundamentalist” conservatives on the Supreme Court is essentially meaningless, I argue in a new piece:

This is, of course, not the first time that the Roberts Court has relied on specious distinctions to deny taxpayers standing. In 2007, Alito, Roberts, and Kennedy ruled that taxpayers did not have standing to challenge a religious subsidy, because the subsidy was granted by the executive branch rather than by the legislative branch. This distinction was even more illogical — how does an illegal subsidy harm a taxpayer any less if the decision was made by the executive branch? Strangely enough, it was the fundamentalist conservatives on the Court who called out the distinction for being spurious. Justice Scalia noted that the distinction was “utterly meaningless” and invited “demonstrably absurd results.” The Court, Scalia argued, should either straightforwardly apply Flast or overrule it explicitly.

This split may seem to vindicate the distinction between minimalist and fundamentalist conservative justices, but here’s the point: In the end, all five conservative justices agreed on the merits and reached the same conclusion. In other words, failing to explicitly overrule a precedent doesn’t mean that it will actually be applied. To plaintiffs in the Arizona case, it makes very little difference whether they are denied standing because Flast was overruled or because the Court concocted an absurd distinction. In the end, they lose.

And in this particular case, as Kagan notes, the Supreme Court has instructed states how they can permanently insulate religious subsidies from Establishment Clause scrutiny, so the distinction between “funadmentalist” and “minimalist” positions is even more trivial than usual.

The Congressional Abdication

[ 9 ] April 5, 2011 |

I generally agree with Mark Tushnet that Robert Jackson is overrated. But I also agree that he did have a talent for good lines, and this bit from his famous-if-overrated Steel Seizures concurrence was prescient indeed:

But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

I have a new article up at the Prospect on this general theme. While I agree with Paul and Bruce Ackerman that it’s hard to square the current presidential dominance over military and security policy with the constitutional framework established by the framework, on some level the argument becomes like debating the fine points of constitutional grand theory: presidential dominance is the de facto constitutional order. I draw the line at suggestions that the president can just ignore congressional statutes, but if accepted practice means anything (and I’m not going to selectively pretend to be an originalist) the president’s ability to initiate military force with congressional delegation or acquiescence is part of our constitutional order, and certainly Obama isn’t breaking any new ground. The only thing that can change things is for Congress to assert the formal powers it still possesses, but there’s little reason to believe it will do so.

Whether the current balance of power is constitutional a different question from whether it’s desirable, and on the latter question I remain highly dubious:

But it’s also true that recent American foreign-policy blunders would suggest it’s not entirely desirable for the president to have so much power. As Stephen Holmes argued at length in his brilliant 2006 book, The Matador’s Cape, an executive branch unconstrained in its military power is dangerous. “It turns out,” Holmes says, “that an executive branch that never has to give reasons for its actions soon stops having plausible reasons for its actions.” The Vietnam and second Iraq wars, in particular, suggest that there was real wisdom in the power-sharing over military policy Madison envisioned. Both wars provide classic examples of the pathologies one would expect from unilateral executive power: wars fought under largely false pretenses, with increasingly blurry aims and essentially no cost-benefit analysis. And the theories of unilateral executive power advanced by John Yoo and others in the executive branch under George W. Bush also led to arbitrary torture and other appalling civil-liberties abuses.

At any rate, my combination of outrage and fatalism is expressed in full at TAP. I’ll have more on Posner and Vermeule later today…

Death By A Thousand Specious Distinctions

[ 2 ] April 4, 2011 |

The Roberts’s Courts disingenuous war on standing in Establishment Clause cases continues. The glories of minimalism! If you’re looking for silver linings, Kagan’s first dissent was very good.

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