Category Archives: Law: Constitutional Law

Stray Thought

If corporations are people, can we draft them?

Posted in Law: Constitutional Law | 8 Comments

Senate Goes Nuclear (Updated)

nukeAfter years of timidity, the Senate suddenly used the ‘nuclear option’ and amended its rules to kill the filibuster for all nominations other than Supreme Court Justices.

The Republicans — whose pledge to block any appointee to the D.C. Circuit no matter how qualified is what brought on this sudden shift — promised retaliation when they were next in the majority. The Minority Leader Sen. Chuck Grassley promised they’d abolish the filibuster for Justices too.

Meanwhile Sen. Carl Levin, one of the three Democrats to vote to keep the filibuster as it was, warned that the principle set in this vote could just as easily be applied to legislation as to nominations, so that this meant the end of the Senate as we know it.

From a strict matter of procedural nicety, I would have preferred a vote to amend the Senate rules be taken at the first meeting of the Senate in a session, rather than mid-session. Even though the Senate sees itself as a continuing body, there seems to me to be no serious argument that the rules cannot be changed by majority vote at the start of the two-year session. There is and was a credible argument that once the rules were in place, a change to the filibuster rule could be filibustered; as I understand it the Senate voted to overrule the Chair on that point, which is an option under its rules of procedure. And that was that.

One thing I definitely believe: Art. I, sec. 5 of the Constitution states that “Each House may determine the Rules of its Proceeding”; I do not think that this decision, whatever one thinks of it, is or should be reviewable in court. I imagine there will be a challenge, say by some party unhappy with a ruling by a judge confirmed under the new rules, but I confidently predict that it will lose.

Is the death of the filibuster good for us? In the short term, given how it was being routinely abused, yes. In the long term, it is harder to say. On the plus side, it makes the Senate a little less undemocratic; with the filibuster a rump of 41 senators representing under a third1 of the population. On what may well be the minus side, it also makes a President with a majority in the Senate significantly more powerful; and it makes a President with even a bare majority in both houses very much more powerful, maybe too powerful. That is emphatically not the situation today, but things change.

Update: It seems I’m consistent: Back in 2005 I chose not to sign a lawprof’s letter opposing the ‘nuclear option’. That time it was Republicans threatening to use the ‘nuclear option’ against Democrats.


  1. Update2: It seems I forgot just how bad it is. According to Dylan Matthews,

    If senators representing 17.82 percent of the population agree, they can get a majority in the 2013 U.S. Senate. That’s not the lowest that figure has gotten (it hit about 16.8 percent in 1970) but it’s about there. And this doesn’t even take the filibuster into account. The smallest 20 states amount to 11.27 percent of the U.S. population, but if all of their senators band together they can successfully filibuster legislation. of the population could block nominations.

     

Posted in Law: Constitutional Law | 2 Comments

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