Category Archives: Law: Constitutional Law

Peter Shane has a great question for GOP House members written as they prepared to read the Constitution aloud at the opening session of the new Congress (a stunt I’m entirely for, by the way — the Constitution should be read aloud much more often, I say).

Peter argues, I think correctly, that the Incompatibility Clause of the Constitution (Section 6, Paragraph 2, of Article I: “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”) means that Congresspersons cannot be serving officers or members of the Reserves. He applies this to Rep. Allen West, who is a retired Lt. Colonel. If Rep. West in the Retired Reserves, then I guess Peter is right; but if he’s not, then the fact that by statute Rep. West might theoretically be recalled to active duty due to his former service cannot be held against him.

Incidentally, as regards the Incompatibility Clause and the Reserves, I think the policy issues are quite mixed at best. On the one hand, there is a real possibility for exactly the sort of manipulation that the Clause is designed to prevent — sweetheart assignments, promotions (and thus pay increases) to Congresspersons by an administration seeking to curry favor with them. On the other hand, there’s surely a benefit to having Members of Congress subject to the same obligations as the Reservists whose lives their decisions effect in so many ways, plus the value of rubbing shoulders with an important constituency. Whatever my policy preferences, however, the Constitutional text looks absolute to me.

Note, incidentally, that I think there wouldn’t be a problem with a Member of Congress being an NCO in the Reserve as I do not think that NCOs are “Officers” in the Constitutional sense, and in any case the level of cushiness is in most cases not going to be as great as for commissioned officers.

George Bush issued a secret order authorizing Presidential assassinations of U.S. citizens abroad whom the US unilaterally decided were Terrorists.

Start the outrage machine.

Oh. Wait. That wasn’t G.W. Bush. It was B.H. Obama who is authorizing murder without trial of US citizens abroad — and not on some battlefield either.

That’s different, right?

Right?

[Original draft 1/27/10.  In preparation for my blog redesign, I found draft blog posts that somehow never made it to publication. This is one of them.]

2010: Since I first wrote the above, the Obama administration successfully fought off a court challenge to its citizen assassination policy, on the grounds that the suit could not be brought by the future victim’s father, but rather required the targeted American to file it himself–an action that would inevitably put him at severe risk of capture and at least Padilla-like confinement if not death.  Happy New Year.

Florida's ban on adoption by gay couples was declared unconstitutional by a the 3rd DCA, the state Court of Appeals located in Miami, 3-0 (although with two opinions) this morning.

The basic holding is that the statute fails the equal protection guarantee of the Florida Constitution because it makes a distinction between fit parents that has no rational basis. Indeed, the record compiled by Judge Cindy Lederman at trial pretty much compelled that verdict.

The next stop, most likely, is the Florida Supreme Court, although with this record it is hard to see how it could reach a different result.

Here's the full text of the decision. Here's a Miami Herald article.

I'm happy to report that UM's Children and Youth Clinic submitted an amicus brief.

Trying (ostentatiously, to make a point) to photograph the Miami-Dade MetroRail Stretch Ledford and Carlos Miller encounter some law on the ground, which happens to bear no relation to the law on the books.

So far the score is Uniforms 1, Photographers 0.

And that's why we have courts, dear Miami-Dade Metrorail….

Congratulations to Professor Sam Terilli of the School of Communications for first inspiring and empowering his student to undertake this project, and then for supporting him.

Quick summary of the theory underlying Citizens United v. FEC summarized in one photo:

Thus, just like a person's independent expenditures on politics can't be regulated, so too with a corporation's.

This is partly Daniel Webster's fault. And partly a power grab.