Category Archives: Law: Constitutional Law

The Amars Have Done it Again

The Amar brothers have filed a very fine amicus brief in the Supreme Court’s review of the Trump disqualification case, styled Trump v. Anderson. The argument is aimed squarely at ‘originalists’ by recovering critical history that shaped Art. 3 of the XIVth Amendment.

Here’s a portion of the summary:

Underlying Section Three of the Fourteenth Amendment, there resides […] an episode known to virtually all Americans in the 1860s and, alas, forgotten by most Americans today, even the learned. The episode has gone almost unmentioned in all previous scholarship on Section Three and in all previous briefing in this case. We believe that this episode is a key that can unlock many of the issues presented by today’s case.

In Part One of what follows, we briefly tell the story of the First Insurrection of the 1860s—the insurrection before the Second Insurrection of the 1860s, typically known today as the Civil War. In that First Insurrection, high-level executive officials in Washington, DC, violated their solemn constitutional oaths as part of a concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln. The parallels between this insurrection in late December 1860 and January 1861 and the more recent Trump-fueled insurrection of late December 2020 and January 2021 are deeply and decisively relevant to today’s case.

[…]
Today’s facts are remarkably similar to those of the First Insurrection of the 1860s.

(Italics in original.)

Posted in 1/6, Law: Constitutional Law | 7 Comments

A Superb Amicus Brief on a Major Issue

In Moore v. United States, the Supreme Court is set to hear a challenge to a tax on an unrealized financial gain. The core of the challenge is that the tax exceed Congress’s power under the 16th Amendment, which gave it the power to levy direct taxes, such as per-person income taxes. Lurking not far in the background of this dispute is the issue of whether a hypothetical wealth tax would even be constitutional.

Professors Vikram Amar and Akhil Amar have submitted one of the best amicus briefs I’ve ever read.  Written with some pizazz, it argues that the case is being fought on the wrong grounds.  The 16th Amendment has nothing to do with this dispute, they argue, because the tax on unrealized gains is not a direct tax at all, as the term was originally understood, and as construed unanimously by the Supreme Court in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796).  (Spotted via Balkanization.)

Posted in Law: Constitutional Law | Comments Off on A Superb Amicus Brief on a Major Issue

Attention Law Review Editors

The odds that any actual law review editors read this blog is vanishingly small, but if you, gentle reader, happen to know one, please tell them about this terrific article, Saving Democracy from the Senate, co-authored with one David Froomnkin, that they might want to publish in their journal.

This article is the first to take stock, in a systematic and comprehensive way, of the constitutional and statutory avenues available for reforming the malapportionment of the U.S. Senate. Collecting together the various options available enables reformers to think both programmatically about the normative choices at stake and strategically about a reform agenda. This in itself is a substantial contribution, not just to constitutional theory but also to ongoing practical efforts to reform the legal architecture of U.S. democracy. Moreover, by systematizing these considerations, the article also helps to make clear the relationship between statutory and constitutional reforms of the Senate, proposing a two-track strategy for reformers.

While the work of synthesizing the options and providing a comparative analysis is the most significant contribution, the article also provides several significant and novel analytical contributions that advance legal debates in these areas:

(1) The meaning of the Article V Entrenchment Clause. The article’s claims that (a) disempowering the Senate and (b) abolishing the Senate would not violate the Entrenchment Clause are claims that have been made before, although rarely. But they are not claims that have ever, to our knowledge, received extensive analysis. The article provides this extensive analysis, explaining why a range of ambitious constitutional reforms of the Senate would not violate the Entrenchment Clause and responding to objections.

(2) The referent of the Article V Entrenchment Clause. We are not the first to suggest that the Constitution could be amended to remove the Entrenchment Clause and then subsequently amended to alter the composition of the Senate. But we provide a crisper analysis of the reason than scholars have done previously. The reason is that the referent of the Entrenchment Clause is not a provision in Article V but a provision in Article I. The Entrenchment Clause, by its language, is not a self-entrenching clause.

(3) Article V and Equal Protection. The article provides a novel argument about the relationship between the Entrenchment Clause and the application of equal protection principles to the Senate. Orts in 2019 made a related argument, but his suggestion that Congress could reapportion the Senate by statute takes an idiosyncratic view of the Entrenchment Clause. We advance the more restrained argument that, while the Entrenchment Clause at present bars the application of equal protection principles to the Senate, amendment of the Constitution to remove the Entrenchment Clause would enable reapportionment of the Senate under Reynolds v. Sims.

(4) At-large Senators. Building on our argument about what the Entrenchment Clause prohibits—and what it does not—we explore the addition of a substantial number of nationally elected Senators to make the Senate more representative of the Nation. Whether or not we kept the existing Senators, no state’s “equal Suffrage” would be altered.

(5) Statehood. The article surveys the relevant legal authorities on the admission of new states, compiling an extensive range of relevant material. In the course of discussing the currently most salient cases of Puerto Rico and DC, the Article analyzes a Twenty-third Amendment issue that has not been extensively discussed.

(6) Breaking up (and merging) states. The article provides novel analysis of practical challenges confronting breakups (and, analogously, mergers) of states. It also suggests a promising policy response to these challenges, arguing that federal legislation to mitigate states’ costs and help to incentivize state breakups would be feasible, desirable, and constitutional. This prescription is, to our knowledge, original—perhaps in part because scholars have not yet grappled with the magnitude and stakes of the problem requiring a remedy.

Although we canvas a very wide variety of alternatives, and we weigh the difficulties, virtues, and vices of each, our recommendations center on certain constitutional reforms and the admission of a few new states.

All this, and yet even with the footnotes it’s still under 30,000 words!

 

Posted in Law: Constitutional Law, Law: Elections, Law: Reading the Constitution, Writings | 1 Comment

Five Random Mysteries

  1. A constitutional question. Why do people who think Donald Trump won the 2020 election think he’s eligible to run again in 2024, when the 22nd Amendment to the Constitution says, “No person shall be elected to the office of the President more than twice.”? (Gary Trudeau wonders this too.)
  2. An ID theft ‘prevention’ question. What is the point of (for pay post-website-breach) so-called ID-theft-prevention services sending me notices that my email has been found on some (unspecified) hacker site and I should change my (unspecified) password? I have few emails and many passwords, all unique except the worthless ones. How am I supposed to figure out what to do? Why not send me the password if it’s compromised anyway so I could search my password manager and password spreadsheet and change it?
  3. A basketball question. Why does the NBA penalize teams for taking good shots that miss when it doesn’t penalize bad shots? The NBA uses a shot clock to force teams to move quickly to score. Ordinarily a team has 24 seconds from getting possession to attempt a shot on pain of losing the ball. If they miss but hit the rim and rebound, the clock is reset to 14 seconds. That makes sense if the offense took the shot with fewer than 14 seconds remaining on the shot clock, and matches how the clock is reset if the other teams fouls or kicks the ball when there are fewer than 14 seconds left on the shot clock. But unlike fouls and kicks, where taking the ball out on the side never costs a team shot-clock seconds but only adds to them if the shot clock is running down, when a team shoots with more than 14 seconds on the clock, misses but hits the rim, then the short clock is shortened to 14 seconds. This just penalizes a team for quick offense. The absurdity of it is even clearer when you consider what happens to a team that attempts a shot when there are more than 14 seconds on the shot clock, but the shot is so bad that it doesn’t hit the rim — that wild shot has no effect on the shot clock at all! The incentives are all wrong: the NBA should reward good shots more than very bad ones rather than the other way around.
  4. A religion in the public sphere question. How come more evangelicals don’t entertain the idea that COVID was a plague sent to punish us for electing Trump?. Goodness knows they’ve claimed all sorts of earlier natural disasters were chastisement for progressive policies.
  5. A shopping question. You have to figure Gatorade is suspicious given the origin story with U. Florida…but this bad? Maybe it’s a good thing G2 is missing from stores? And is lemon-lime G2 cancelled? It does seem to have gone missing from the G2 website.
Posted in Basketball, ID Cards and Identification, Law: Constitutional Law, Shopping, Trump | Comments Off on Five Random Mysteries

On the Legality of Mandatory Vaccinations Rules for Highly Communicable Diseases

I presume it’s a no-brainer in most states that if a private employer wants to require that employees be vaccinated or wear masks on the jobs then the employer can do this unless the employee has a legitimate medical reason not to, in which case there would be an ADA issue. If the objection is religious (e.g. Christian Scientists), there would be a claim for a reasonable accommodation if one can be arranged.

But what if it’s the government making the order? Leaving aside for a minute the issue of the policy wisdom of a governmental mandatory vaccine order, does the Constitution permit the government, state or federal, to require obedience to a state’s duly promulgated mandatory vaccination rule, assuming the rule has exceptions for medical and religious reasons?

Comes now the 7th Circuit, in a 3-0  opinion written by no less than Judge Easterbrook, to say in Klaassen v. Trustees of Indiana Univ. that this is not a hard case at all:

Given Jacobson v. Massachusetts, 197 U.S. 11 (1905), which holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2. Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough protection for their interests and that courts should not be as deferential to the decisions of public bodies as Jacobson was, but a court of appeals must apply the law established by the Supreme Court.

Plaintiffs invoke substantive due process. Under Washington v. Glucksberg (1997), and other decisions, such an argument depends on the existence of a fundamental right ingrained in the American legal tradition. Yet Jacobson, which sustained a criminal conviction for refusing to be vaccinated, shows that plaintiffs lack such a right. To the contrary, vaccination requirements, like other public-health measures, have been common in this nation.

Again, wisdom and legality are not the same thing, but as far as legality is concerned this is I think absolutely correct on the law as it relates to mandatory vaccination rules. 

I would venture to guess that the federal government could justify a similar rule under the commerce power. I would also venture to guess that the extension of the vaccination rule to a state (or federal) masking rule for the duration of an epidemic would not be very difficult.

Posted in Civil Liberties, COVID-19, Law: Constitutional Law | 5 Comments

Well That Didn’t Take Long

Remember that nutty DeSantis-inspired law that would make it illegal for some, but not all, large social media companies to ban politicians from their platforms?

On Wednesday US District Judge Robert Hinkle issued a 31-page preliminary injunction blocking it.

Or, as Ars Technica summarized it, “Judge tears Florida’s social media law to shreds for violating First Amendment: Judge blocks Florida law, calls it example of “burning the house to roast a pig.”

It wasn’t a gentle ruling; the Ars Technia piece linked above hits the (many) high points.

Gavel image licensed under Creative Commons  CC BY-SA 3.0 by Alpha Stock Images.

Posted in Florida, Law: Constitutional Law, Law: Free Speech | Comments Off on Well That Didn’t Take Long