Category Archives: Law: Constitutional Law

Third Amendment Litigation

Despite the complacency reported by America’s Finest News Source in Third Amendment Rights Group Celebrates Another Successful Year, the fact is that there a genuine — if perhaps somewhat unlikely to succeed — Real Live Third Amendment Case recently filed in Nevada.

The facts alleged are pretty shocking; whether they make out a Third Amendment claim (and indeed whether the Third is applicable against state governments) remains a problem to delight law professors.

Posted in Law: Constitutional Law | Leave a comment

Constitutional Snark

If I were of a snarky disposition, I’d ask a question about how today’s decision in Koontz v. St. John’s River Water Management District applies to the TSA.

Among other things, today’s opinion by Justice Alito states that the unconstitutional conditions doctrine vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up (in this case by demanding excessive pro-environmental spending or concessions from a wetlands developer), and reiterates that “the government may not deny a benefit to a person because he exercises a constitutional right.” What’s more, the decision states that “A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval.”

Doesn’t all this resonate with the implicit conversation when you go to the airport and want to fly on a plane? ‘Agree to be irradiated or groped, or give up your right to travel’1 I think I know the answer Justice Alito would give: either there is no such constitutional right not to be searched in the circumstances, so nothing is being given up, or the loss is somehow not important given the state interest. Funny how that doesn’t work for property, though.

Fortunately, I am well medicated these days, so I don’t snark hardly at all.


  1. For those who deny the existence of the right to travel, how about ‘give up the right to your property/contract interest in your non-refundable ticket’. []
Posted in Law: Constitutional Law, Law: Right to Travel | Leave a comment

Would a Property Qualification for Voting Be Constitutional?

Historian David Kaiser asks whether a property qualification for voting would be Constitutional:

It occurred to me this morning that the solution to Republican electoral problems is, when you think about it, obvious, and a friend of mine from a red state pointed out that a Tea Party leader has already mused about it, back in the heady days of 2010. The solution, which has a rich tradition in western and US history, is a property qualification for voting. And what is rather shocking is that there does not seem to be anything in the Constitution to prevent it.

Clearly, there is nothing in the basic, or even 10-amendment, Constitution — at least as originally understood — that would prevent a state from imposing a property qualification. Several states had them in the early years of the Republic (just as at least one had an established church for several years). I think the main federal issue would be whether the Equal Protection Clause of the 14th Amendment, as currently understood, would block a property qualification. There would, undoubtedly, also be state constitutional law issues in many states.

I’m not an Equal Protection expert by any means, but my knee-jerk reaction is ‘of course that isn’t Constitutional’. That said, it’s not explicitly barred, which I suppose means that were the Court to treat the question doctrinally, it would apply strict scrutiny. I don’t see how a state would come up with justifications for a property requirement that would survive strict scrutiny, but I’m open to correction on anything in this last paragraph by people who actually know stuff.

Posted in Law: Constitutional Law, Law: Elections | 3 Comments

EFF Wins Round 1 of a Big One

National Security Letters Are Unconstitutional, Federal Judge Rules:

A federal district court judge in San Francisco has ruled that National Security Letter (NSL) provisions in federal law violate the Constitution. The decision came in a lawsuit challenging a NSL on behalf of an unnamed telecommunications company represented by the Electronic Frontier Foundation (EFF).

In the ruling publicly released today, Judge Susan Illston ordered that the Federal Bureau of Investigation (FBI) stop issuing NSLs and cease enforcing the gag provision in this or any other case. The landmark ruling is stayed for 90 days to allow the government to appeal.

The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters — on its own authority and without court approval — to telecommunications companies demanding information about their customers. The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.

In today’s ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional.

Full text of the decision in In Re National Security Letter. If this is upheld by the 9th Circuit, I would imagine it would be headed straight for the Supreme Court.

OBDisclosure: I am proud to be a member of EFF’s Advisory Board.

Posted in Law: Constitutional Law, Law: Free Speech, National Security | 1 Comment

More on the Temporary Debt Limit Waiver

The House duly passed the debt limit waiver bill 285 to 144, with 33 Republicans and 111 Democrats voting no. House GOP leaders duly made statements about what a great achievement ‘no budget no pay’ was, perhaps an attempt to distract from how great a climbdown the main part of the bill was.

Most lawyers I’ve communicated with took the view that most every court, and certainly the Supreme Court, would not choose to declare the debt ceiling waiver unconstitutional — even if both mechanistic and good-faith application of current severability doctrine would suggest that it should. That’s probably correct predictively, which says something about the importance of realpolitik in Constitutional interpretation. Although anyone who ever read Dames & Moore v. Reagan should already know that….

Meanwhile Seth Barrett Tillman has proposed a nice way to avoid the severability question altogether. Since the text of the 27th Amendment says “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened” the remedy for a bill that violates this provision is an injunction staying the pay terms until the next election. Under this elegant formulation, the pay provision of the bill is not held to be unconstitutional as such, just given no effect until, in this case, it has no remaining effects. Very neat.

Posted in Econ & Money, Law: Constitutional Law, Politics: The Party of Sleaze | 1 Comment

Is There a Poison Pill in the Debt Ceiling Bill?

The House GOP leadership introduced its 3-month debt limit increase yesterday and plans to vote on it tomorrow. As a sweetener to paper over their turnaround on the debt limit, the GOP attached a “no budget no pay” provision to H.R. 325 that could change the payment of Congressional salaries. While this looks like unconstitutional grandstanding, there is a chance that — intentionally or not — the “no budget no pay” part of the statute could function as a poison pill clause. If so, I am concerned that any challenge to the unconstitutional part could have the effect of restoring the debt ceiling while seeming to put the blame on the courts rather than Congress.

Explaining what I’m worried about is slightly convoluted, involving first the validity of a Constitutional Amendment with a strange ratification history and second the arcane rules about “severability” — what courts should do when they find part of a statue unconstitutional — so bear with me.

As you may know, the House GOP’s fig leaf for its temporary parole of the hostage it had taken (the international economy) was to say that unless the Congress passes a budget this year — instead of the various continuing resolutions and such under which we’ve operated for some time — federal legislators would not get their salaries.

This provision is (almost certainly) blatantly unconstitutional. The US Constitution provides, in the 27th Amendment (proposed 1789, ratified 1992(!)),

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The reason for the “(almost certainly)” is that the 27th Amendment has an unusual history. The provision was one of the two amendments in the original bill of rights that did not get approved by a sufficient number of states. It laid largely dormant for almost two centuries until being revived due to a campaign started by U. Texas undergraduate. (He got a C on the paper proposing the campaign, by the way.)

No court has ruled on the validity of the 27th Amendment, but in light of Coleman v. Miller, 307 U.S. 433 (1939) and the subsequent acceptance of the 27th Amendment by Congress, I think it’s a very good bet that just about every judge in the land would say it was valid.

If so, we turn to figuring out whether H.R.325 violates the 27th Amendment. The structure of the bill “To ensure the complete and timely payment of the obligations of the United States Government until May 19, 2013, and for other purposes” is simple: Two sections. Section One is short, and says the debt ceiling “shall not apply for the period beginning on the date of the enactment of this Act and ending on May 18, 2013.” Section Two is much longer and purports to put congressional salaries in escrow until the end of the session if no budget is passed. I’ve put the full text of it at the end of this post. The key parts that relate to salaries are these:

[2(a)](1) IN GENERAL- If by April 15, 2013, a House of Congress has not agreed to a concurrent resolution on the budget for fiscal year 2014 pursuant to section 301 of the Congressional Budget Act of 1974, during the period described in paragraph (2) the payroll administrator of that House of Congress shall deposit in an escrow account all payments otherwise required to be made during such period for the compensation of Members of Congress who serve in that House of Congress, and shall release such payments to such Members only upon the expiration of such period.

(4) RELEASE OF AMOUNTS AT END OF THE CONGRESS- In order to ensure that this section is carried out in a manner that shall not vary the compensation of Senators or Representatives in violation of the twenty-seventh article of amendment to the Constitution of the United States, the payroll administrator of a House of Congress shall release for payments to Members of that House of Congress any amounts remaining in any escrow account under this section on the last day of the One Hundred Thirteenth Congress.

Does this comply with the 27th Amendment? I don’t think this is even a close question: in my view the escrow provision clearly does not. The prohibition on “varying the compensation” seems pretty clear to me: it means no changes in amount, and no changes in time of payment because there is a time value to money. Anyone who gets a salary would think it a very material change in the terms if the money were escrowed for more than a year and a half instead of being made available to pay the mortgage.

You might, therefore, be forgiven for dismissing the House GOP insistence on this provision as mere grandstanding — one quick lawsuit by a member of Congress wanting his pay, and the pay limit is toast.

But here, finally, is where I have a somewhat scary thought: Is it possible that the pay provision is non-severable from the debt ceiling increase? Could it be the case that if a court strikes down the pay provision — as I think it must do if asked — will the court also be forced to nullify the debt ceiling increase provision of the bill? Is this pay provision not just grandstanding but in fact, and perhaps even intent, a piece of Machiavellian scheming?

Answering those questions requires some background in the law relating to “severability”.

We are long past the point where one unconstitutional clause necessarily infects an entire statute. There is now a substantial body of doctrine about when a court should “sever” the unconstitutional piece and leave the rest. Much of that doctrine concerns statutes with a “severability clause”, an instruction from Congress about what to do if a dubious clause is struck down. As H.R. 325 does not have a severability clause, we can ignore all that and turn straight to the rules for statutes without severability clauses.

The Supreme Court recently addressed this very issue in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S.Ct. 3138, 3161-62 (2010), which involved the fate of the Sarbanes-Oxley Act. I’ve excised the citations in the quote that follows:

“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.” Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” the “normal rule” is “that partial, rather than facial, invalidation is the required course[.]” Putting to one side petitioners’ Appointments Clause challenges (addressed below), the existence of the Board does not violate the separation of powers, but the substantive removal restrictions imposed by §§ 7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment. Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will, and leaves the President separated from Board members by only a single level of good-cause tenure. The Commission is then fully responsible for the Board’s actions, which are no less subject than the Commission’s own functions to Presidential oversight.

The Sarbanes–Oxley Act remains “ ‘fully operative as a law’ ” with these tenure restrictions excised. We therefore must sustain its remaining provisions “[u]nless it is evident that the Legislature would not have enacted those provisions … independently of that which is [invalid].” Though this inquiry can sometimes be “elusive,” the answer here seems clear: The remaining provisions are not “incapable of functioning independently,” and nothing in the statute’s text or historical context makes it “evident” that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will.

So the issue is whether (1) HR 325 remains fully operative as a law, and (2) whether in light of the statutory and historical context “it is evident that the Legislature would not have enacted those provisions … independently of that which is [invalid].”

Even assuming HR 325 passes the first test, does it pass the second? Will it be clear at passage that the bill would have passed without the Republican face-saving section on Congressional pay?

There are powerful reasons to say no, that the two parts of the statute are tightly linked. Just consider what the GOP leadership has been saying. For example, Eric Cantor and John Boehner:

“We will authorize a three-month temporary debt limit increase to give the Senate and House time to pass a budget,” House Majority Leader Eric Cantor, R-Va., said. “Furthermore, if the Senate or House fails to pass a budget in that time, members of Congress will not be paid by the American people for failing to do their job.”

In selling the idea, House Speaker John Boehner called the Senate’s failure to pass a budget over the last four years “shameful.”

Or Darrell Issa, who originally said the no pay idea was unconstitutional, but then backpeddled, said,

“I strongly support the House Republican leadership’s proposal to link the debt ceiling increase to passage of a budget by the Senate, which has gone 1360 days without passing a blueprint for federal spending.

So Congressional leaders are selling the provisions as linked. Does this mean that the two sections of H.R. 325 are too closely linked to be severable? I think the best answer is that we don’t know yet, since the vote hasn’t happened, but it is a real possibility. The answer may turn on the final vote and the debate around it. The more that Members of Congress say the only reason they are going along is the “no budget no pay” clause, the worse it will look. If the vote is close, will a judge be able to say in good conscience that H.R. 325 would have passed without the pay provisions? I’m not sure I could say that if I were a judge. On the other hand, if the vote is very lop-sided, it could be easier to argue, and to persuade oneself, that the provisions were not key to passage, and that even some Republicans voting for it might have swallowed the debt ceiling increase without the pay sop attached.

One could of course argue that all the talk about the value of the “no budget no pay” rule is just legislative camouflage, and should not be taken too seriously. That might well be true politically. But in the face of statements by both key House leaders and perhaps many of the rank and file saying “no budget no pay” matters to their vote, asking a court to in effect hold that members of a co-ordinate branch of government were dissembling might be asking lot.

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Posted in Econ & Money, Law: Constitutional Law, Politics: The Party of Sleaze | 9 Comments

The Corporation at Prayer (and Other Things)

Last week Colorado and Montana passed citizen initiatives stating that corporations are not entitled to constitutional rights as people — a response to the Supreme Court’s Citizens United decision, but also to a longer history of vesting various rights in corporations.

It was thus something of a surprise to encounter today a reference to a new paper by Ronald J. Colombo, The Naked Private Square, which argues that,

Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

I have a lot of sympathy for the impulses that animate the corporations-are-not-a-person movement, but I’m a little uncomfortable with absolutist ideas about how to implement it. For example, simply saying that corporations do not have First or Fourth Amendment rights as an entity should not imply that the people working in them check their rights at the door either.

Similarly, the entity has legitimate needs for some rights-like legal guarantees if only to serve the legitimate interests of its owners and employees. Would due process still apply? I hope so. How about the right to counsel? Again, that seems like a necessity, doesn’t it?

I suspect that just removing all current protections would not work at all well; some sort of statutory code of intermediate protections would be necessary to replace the current framework. There’s a lot of work waiting to be done mapping out how wide swaths of law relating to speech, to search, and no doubt many other things, would and should work if we were to treat the corporation-as-entity as outside the protections of the bill of rights.

(Article spotted via Larry Solum.)

Posted in Civil Liberties, Law: Constitutional Law | 8 Comments