For Monday

Thursday audio--with transcript, without transcript. Panel # 11 Reax Papers due at 7 p.m. Monday; Panel # 12 Reax Papers due at 7 p.m. Thursday (regardless of whether we have class). Again, please let me know if you cannot make a make-up either on the evening of Veterans' Day or on a Saturday in November.

We will have some final words on Sexual Liberty. If rational-basis review applied, why was Texas' sodomy law invalid--I thought everything survived rational-basis review? Although Justice Kennedy did not address it, is Justice Scalia correct that there is no difference between sodomy and other private conduct that is prohibited for moral reasons?

We then move to Marriage and Family and Panel # 14; prep Zablocki in addition to Loving and Obergefell.

    • Has the Court yet taken a position on standard of scrutiny? What are the state interests involved and why do they justify or not justify limiting marriage to opposite-sex couples?

    • In what ways is Obergefell inevitable after Lawrence and in what ways is it new ground

    • Going beyond the reading, what rights does "marriage" entail that may or must follow from Obergefell.

We the will move to Equal Protection: General Discrimination and Race and Ethnicity: Discrimination (first sub-section); this is Panel # 15. 

    • What is the basic idea of equal protection and how does the analysis change when racial and ethnic minorities are the targets of the discrimination?

    • How was there an equal protection problem with anti-miscegination laws, if all people, regardless of race, were prohibited from marrying a person of a different race?

Reminder: RBG Panel

 Here is the flier.

It is 12:30-2:45 on Friday, October 30.

Zoom Link to register.

For Thursday

Monday video--with transcript, without transcript. Panel # 11 Reax Papers due next Monday.

We continue with Right to Die. Consider:

    • According to O'Connor's dissent, how should the problem of end-of-life pain and dying with dignity be resolved.

    • What is different about the constitutional arguments in Vacco and how does the court resolve them?

    • How do equal protection and substantive due process interact?

We then move to Sexual Liberty, focusing on Bowers and Lawrence. Consider:

    • Note the precise laws at issue in both cases and how the Court defines the right at issue in the two cases. What changed?

    • How do equality principles play into this? What is the equal protection argument that could have been made in Bowers and that were around the periphery in Lawrence?

    • What role does and should morality play with respect to the interests government might serve 

Panel # 11 Reaction Papers

Here and here.

Results of judicial review

The opening paragraph of this Fifth Circuit opinion illustrates something we have discussed in class and that came up during discussion following Thursday's class.

It is often said that courts “strike down” laws when ruling them unconstitutional. That’s not quite right. See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA.L.REV. 933, 936 (2018). Courts hold laws unenforceable; they do not erase them. Id. Many laws that are plainly unconstitutional remain on the statute books. Jim Crow-era segregation laws are one example. See Gabriel J. Chin et al., Still on the Books: Jim Crow and Segregation Laws Fifty Years After Brown v. Board of Education, 2006 MICH.ST.L.REV. 457 (highlighting the segregationist laws still present in the codes of several states); see also Josh Blackman, The Irrepressible Myth of Cooper v. Aaron, 107 GEO.L.J. 1135, 1199 (2019) (noting that the Texas law criminalizing sodomy at issue in Lawrence v. Texas, 539 U.S. 558 (2003), remains in the state code).

This is especially true when the Court reviews a law from one state and other states have similar laws. That was the situation here. SCOTUS in 1999 declared invalid a Colorado law providing that petition circulators for ballot initiatives must be registered to vote in the state. The City of Houston has an identical requirement, although it had not engaged in much meaningful enforcement over the years. The point is that Houston's ordinance had never been declared invalid, although Houston knows that any attempt to enforce would fail because any court would apply binding SCOTUS precedent and declare the ordinance invalid and prohibit enforcement. The Fifth Circuit refers to these as "zombie statutes."

Most of the decision is about standing and mootness, beyond the scope of the class and covered in Federal Courts. But this should give you a broader picture of what happens after SCOTUS speaks about a state law (e.g., abortion regulations, marriage regulations, school desegrgation plans, etc.)--that is to say, a lot, depending on what other states choose to do. To bring it to our current discussion of June Medical: Louisiana's law should have been a zombie statute. But Louisiana did not treat it as such, nor did the Fifth Circuit, which is why SCOTUS review occurred in the case.

For Monday

Thursday video--with transcript, without transcript.

Reminder of upcoming events:

    • Friday, October 30: The Jurisprudence and Legacy of Justice Ginsburg. 12:30 p.m. Zoom Register.

    • Tuesday, November 10: Judicial Lecture: The Honorable Sri Srinivasan (Chief Judge, U.S. Court of Appeals for the D.C. Circuit). 12:30 p.m.

    • Tuesday, November 10: Moot Court Finals. 6 p.m.

On Monday, we will finish our discussion of Reproductive Freedom, trying to figure out what the state of the law is following June Medical. This partly depends on the Marks principle: a "fragmented court decision stands for the 'position taken by those members who concurred in the judgments on the narrowest grounds.'" That is, the concurring opinion with the narrowest reasoning supporting the judgment. But what is the position for which Chief Justice Roberts' concurring opinion stands--what is the "narrow reasoning" supporting the judgment? Also, count the votes in June for the proper meaning of Casey.

We them turn, finally, to Right to Die. (Panel # 12). Consider:

    • What does substantive due process mean and when will or should the Court recognize "new" rights? How does Justice Souter offer a different understanding of what substantive due process is?

    • How do these cases derive from the basic privacy right in Griswold?

    • What role does and should societal morality or disapproval play in constitutional doctrine. 

    • How did the Court distinguish the situation in Cruzan from the situation in Glucksberg and Vacco?

For all of next week, expect to reach Sexual Liberty (Panel # 13) and Family Life (Panel # 14).

 

RBG Panel

Here is the flier.

It is 12:30-2:45 on Friday, October 30.

Zoom Link to register.

An interesting take on takings

An interesting opinion.

During the summer protests in Seattle, a group of protesters formed what became known as the "Capitol Hill Occupying Protest" (among other acronyms)--they occupied several city blocks as an "autonomous zone" free of city regulation and integration with the rest of the city, with the agreement of government officials. Property owners in that zone have sued the City to recover for property destroyed or shut down by protesters in the "CHOP" while police, by agreement, did nothing. For our purposes, see Part D: The plaintiffs assert a Takings claim, alleging that the city policy of allowing these businesses to be cut off from the rest of the city deprived them of economic use of their property, because their businesses could not operate. The court denied a 12(b)(6), concluding that the plaintiffs had sufficiently alleged a taking.

The piece of the opinion about substantive due process is covered in Civil Rights.

Due Process Papers

Here.

For Thursday (Corrected)

Monday video--with transcript, without transcript.

We continue with Reproductive Freedom, continuing with Roe and moving to Whole Women and June Medical (Blog).

    • What were the regulations at issue in Casey and what was the result there?

    • How did equal protection enter the analysis of reproductive rights?

    • In what ways are regulations of abortion paternalistic and is there any problem with that paternalism in government regulation? What sorts of regulations are possible under Casey?

    • How did Whole Women and June Medical understand the undue burden test? Where do things stand doctrinally after June Medical? In thinking about this, especially the meaning of June, consider the so-called Marks principle: When a case does not garner a majority opinion, the controlling rule comes from the narrowest concurring opinion supporting the judgment (that is, the narrowest reasoning to reach the result in the case.

Then move to Right to Die, which we hopefully will reach late in the second hour.

    • How do these cases derive from the basic privacy right in Griswold?

    • What role does and should societal morality or disapproval play in constitutional doctrine. 

    • How did the Court distinguish the situation in Cruzan from the situation in Glucksberg and Vacco?

 We will get to Sexual Liberty next week.   

For Monday

Thursday video--with transcript, without transcript.

We continue with Reproductive Freedom, which will cover the entire class. In addition to the cases assigned, read June Medicial (from spring 2020), which is posted on the blog. Consider:

    • How did the Court get to minors being able to obtain contraception? Do minors have the same rights of privacy?

    • What was the logic behind the move from contraception to abortion as an application of the right to privacy?

    • How has the doctrine evolved from Roe to Casey to Whole Women's Health to June Medical? Read June Medical and note the voting breakdown on the Court and the logic of the Chief Justice's concurring opinion. What is the controlling doctrine at this point?

    • Consider the role of stare decisis, generally and in these cases, and how it operates at SCOTUS.

    • Does the distinction between the right and funding of the right make sense?

For the week, I am going to give you wide berth: Prep Right to Die, Sexual Liberty, and Family; I doubt we will get to all three, but let that be your guidepost if you are studying ahead.

State Power Reax Papers

Here, here, here, and here.

For Thursday

Monday video--with transcript, without transcript. Panel # 9 Reax Papers due next Monday.

We turn to Incorporation with Panel # 10 What does incorporation mean and why is it necessary to talk about that? Review the first eight amendments--is there a textual justification for limiting them to the federal government? How does incorporation square with the purposes of the 14th Amendment? Be familiar with the competing theories of incorporation and which prevailed on the Court. Note two distinct issues: What rights are incorporated and the scope of the rights as incorporated--what is the difference?

We then turn to Reproductive Freedom and Panel # 11. How does this version of substantive due process differ from and compare to Lochner? How did the doctrine evolve from contraception for married couples to contraception for individuals to abortion? How did the controlling doctrine change from Roe to Casey and why?

For your reading and listening education

Some reading and listening on things we have covered earlier in the course.

• Recall our discussion of Heart of Atlanta Motel and McClung and using the Commerce Clause to prohibit discrimination in places of public accommodation. Both opinions mentioned The Negro Motorist Green Book, a travel guide for African Americans identifying places through the South where it was safe to stop and get services (food, room, gas), as well as places to avoid. This podcast features a journalist and an activist driving from Detroit to New Orleans, visiting the spaces described in the travel guide and interviewing people in the communities. (Note: contains explicit language, including racial epithets, by people telling their lives stories).

• Since the President's COVID diagnosis, there has been talk about the 25th Amendment, specifically § 4's provision for an involuntary transfer of executive power where the President is unable to discharge the powers of office (note: It does not provide for removal of the President from office; it transfers the executive power temporarily). Section 4 provides for a transfer when the "Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide" notifies the Speaker of the House and President Pro Tempore of the Senate of that disability. Rep. Jamie Raskin (D-MD), a former constitutional law professor, has introduced legislation establishing the "Commission on Presidential Capacity to Discharge the Powers and Duties of the Office" as a "such other body." The Committee would consist of 17 members; 16 would be chosen by legislative leaders (Speaker, majority leader, minority leader), half from each party, and the 17th member would be chosen by the 16 appointees. The President could be required to submit to a physical, mental, or other examination on a concurrent resolution of both houses.

Brian Kalt, a professor at Michigan State, wrote a book about § 4 and spoke on this podcast (begin around 47:45, unless you want to hear a non-nuanced partisan take on the Barrett nomination) about the amendment, its purpose and operation, and the proposed legislation. For our purposes, Kalt identifies two potential separation-of-powers defects in the proposal: 1) Legislative appointment of officials who seem to be performing executive functions and 2) Congress unilaterally compelling the Commission to act, which may be an executive function.

For Monday

Thursday video--with transcript, without transcript. Panel # 8 Reax Papers due by 7 p.m. Monday.

We continue with Economic Substantive Due Process. What does "presumption of constitutionality," introduced in Carolene Products, mean? What are the three categories discussed in FN 4? Look especially at Williamson as an example of the relaxed approach the Court takes. Recall Sebelius and the individual mandate under the Affordable Care Act--how does a Lochnerian conception of SDP better explain the action/inaction distinction? Then look at the Takings Clause of the Fifth Amendment. Breaking the text down, what are the elements of a Takings claim and what is the analysis for each one?

We then turn to Incorporation and Panel # 10. What does incorporation mean and why is it necessary to talk about that? Review the first eight amendments--is there a textual justification for limiting them to the federal government? How does incorporation square with the purposes of the 14th Amendment? Be familiar with the competing theories of incorporation and which prevailed on the Court. Note two distinct issues: What rights are incorporated and the scope of the rights as incorporated--what is the difference?

On Thursday, we will begin Reproductive Freedom and Panel # 11.

For Thursday

Monday video--with transcript, without transcript. Panel # 8 Reax Papers due at 7 p.m. next Monday.

We move forward with all of Economic Substantive Due Process, through Takings. Be ready to discuss the basics of all cases in the reading, beyond the "main" case listed in the syllabus. Consider:

    • What are the sources of external limitations on legislative power and how do they limit power? (Review the first eight amendments, in addition to the provisions assigned)

    • What are unenumerated rights, what are their sources, and how can courts enforce them? Consider the debate between Justices Chase and Iredell in Calder.

    • What are the rights that comprise economic due process and what power does that leave government to act?

    • What do we mean by "Lochner" and "Lochnerism" and how did that doctrine evolve and change from the early 20th century to later in the 20th century? Why and how did the doctrine evolve away from broad protection for business?

    • What is the scope of the Takings Clause and what protections does that provide? What is the connection between Takings and Due Process? What are the distinct elements and tests for takings? What is the difference between a physical and regulatory taking?

More practical constitutionalism

You all enjoy the unique opportunity to take Constitutional Law at a time when structural constitutional issues--covered in the course and otherwise--are in the news.

The President contracting COVID has raised a host of issues about presidential succession and continuity of government, as well as the possible effects of a presidential candidate becoming ill before Election Day or between Election Day and the December meeting of the Electoral College.

Here are three good discussions of the various issues, for now and the election. The relevant constitutional provisions are the 20th Amendment, which provides for the beginning of a presidential term at noon on January 20 and for what happens if the President dies or has not been selected, and the 25th Amendment, which provides for temporary surrender of power to the Vice President--voluntary or involuntary--if the President becomes incapacitated. Also of note is 3 USC § 19, a statute that defines the line of succession if both the Presidency and Vice Presidency are vacant.

For Monday

Thursday video--with transcript, without transcript.

We continue with State Power, finishing DCC and then moving to Privileges and Immunities. Consider:

    • Why was the law in Clover Leaf valid, as a good example of a law with a disparate effect?

    • Can you identify any common themes from this round of cases on incidental effects?

    • Can a state favor in-staters over out-staters through subsidies and what are the limits on that? Note the four categories Justice Scalia describes in his concurrence in West Lynn; which is this case and how should it be treated?

    • What is the market participant doctrine and what are the arguments in favor and against that doctrine?

    • What is the Privileges and Immunities Clause? How is it similar to and different from DCC? How does P/I undermine the market participant doctrine?

Note that the legal rules for DCC analysis should become clear at this point (even not in their application); the reading in Choper lays this out well at the beginning of the section (and we discussed this last Thursday). The first question will be whether the law discriminates on its face, in purpose or in means. If it does, apply the virtually per se analysis; if it does not, apply Pike Balancing. Now, these are subject to exceptions--under United Waste, a facially discriminatory law that benefits a government entity is analyzed under Pike rather than under the per se rule. But that basic two-step should be your starting point.

We then turn to Economic Substantive Due Process and Panel # 9. For Monday, read Origins and Lochner and its Era. Consider:

    • What is the source of economic due process and where does the concept come from?

    • What sorts of laws became invalid under that doctrine and why? What could government do in the area of economic regulation? What were the arguments against this doctrine?

For the week if looking to get way ahead, prep through End of Lochner, Incorporation (Panel # 10), and Reproductive Freedom (Panel # 11).

A nice way of thinking about removal power

A con law colleague offers an interesting explanation of the state of removal law after Seila Law. The Chief creates four categories:

1) Purely executive principal officers: Myers controls and President must have unrestricted power.

2) Quasi-legislative/quasi-judicial officers on agencies and boards: For-cause removal is OK.

3) Purely executive inferior officers: Morrison controls and for-cause removal is OK unless it unduly interferes with executive power.

4) Quasi-legislative/quasi-judicial principal officers operating individually: Myers controls and President must have unrestricted removal power.

We can add the Free Enterprise limitation that there cannot be more than one layer between the president and the officer.