More DOMA Drama: U.S. Government Urges Supreme Court to Choose Second Circuit Case (Windsor v. U.S.) as “Most Appropriate Vehicle” for Resolving Constitutionality of DOMA

Linda McClain

The Supreme Court of the United States has before it several petitions seeking its review of the constitutionality of Section 3 of the Defense of Marriage Act, which denies federal economic and other benefits to same-sex couples lawfully married under state law. Court watchers predict that the Court will consider these petitions at a conference next month. But which cert petition will the Court take? On Friday, October 26, the Solicitor General, on behalf of the United States, filed a supplemental brief urging the Court that the case of Windsor v. United States provides the "most appropriate vehicle" for such review. As I wrote last Friday, in Windsor, the Second Circuit became the first federal court of appeals to rule that Section 3 warrants review under the standard of intermediate scrutiny because it classifies based on sexual orientation. It concluded that Section 3 fails such review and affirmed the lower federal court’s ruling in favor of widow Edith Windsor, who argued that she should be entitled to a refund of the $363, 053 she had to pay in federal estate taxes – pursuant to Section 3 – solely because she married a woman, not a man.

The Solicitor General argues that the Second Circuit’s analysis of why intermediate scrutiny is the proper standard of review for classifications based on sexual orientation "may be beneficial" to the Supreme Court’s "consideration of that issue." By contrast, it points out, the First Circuit considered itself "constrained by binding circuit precedent as to the applicable level of scrutiny." Nonetheless, the First Circuit read Supreme Court’s precedents such as Romer v. Evans (1996) as supporting a more "careful" or "intensified" form of rational basis review – something more than the highly deferential approach taken toward economic and social legislation.

Section 3 has now been held unconstitutional by several district courts and by two federal courts of appeals. Thus, no conflict exists between these circuits as to the bottom line that Section 3 violates equal protection and is unconstitutional because it denies federal benefits to same-sex couples – legally married under state law – that it provides to opposite-sex married couples. However, these appellate courts have used different legal standards of review. Each offers a reading of the Supreme Court’s equal protection precedents – as well as the import of Lawrence v. Texas (2003).

Since February 2011, the Obama Administration has argued that, based on its own study of the Supreme Court’s jurisprudence, intermediate scrutiny is the proper standard for reviewing classifications based on sexual orientation and that Section 3 cannot survive such review. Thus, the Solicitor General has argued in the government’s various briefs and cert petitions that: "No court of appeals has offered an explanation for applying rational basis review that withstands scrutiny under this Court’s precedents." For example, to the extent that Bowers v. Hardwick (1986) supported judicial reasoning that homosexuals could hardly warrant status as a quasi-suspect class if it was constitutional to enforce criminal penalties against homosexual conduct, Lawrence, which overruled Bowers, eliminates that rationale. The Solicitor General maintains – as does the Second Circuit – that the Court has never squarely confronted the question of whether sexual orientation is a suspect classification for equal protection purposes. In Romer, the Second Circuit argued, the litigants "had abandoned their quasi-suspect argument after the trial court decision." Thus, the Second Circuit and the Solicitor General both contend that a careful reading of the Court’s jurisprudence supports a conclusion that heightened scrutiny is warranted. (A federal district court in the Ninth Circuit (in Office of Personnel Management v. Golisnki) has agreed, and the Solicitor General has filed a petition for cert before the judgment in that case.).

Several additional reasons that the Solicitor General gives for why Windsor is the most appropriate vehicle for review warrant mention. These concern ways that the Second Circuit opinion answered objections raised by the Bipartisan Legal Advisory Group (BLAG) when Edith Windsor filed her petition for a writ of cert "before judgment" after the federal district court ruled in her favor – but before the Second Circuit ruled. She sought, in light of her age, to get a definitive ruling from the Supreme Court immediately – given the DOJ’s intention to enforce Section 3 until there was a final judicial ruling on its constitutionality. The Solicitor General also petitioned for cert, although it argued that the Court should hold the cert petition in Windsor because other cases provided better vehicles. One reason was due to some of the objections that BLAG raised in its opposition to cert. (BLAG urged the Court that the First Circuit case was the appropriate vehicle for review.)

First, the Solicitor General points out, now that the Second Circuit has ruled, the Court need not grant the petition for cert before judgment, which, BLAG objected, should be "an extremely rare occurrence." Rather, the Court can now consider the original cert petitions and, if it grants them, "review the judgment of the [Second Circuit] court of appeals."

Second, the Second Circuit rejected BLAG’s argument that the U.S. government could not appeal because it was not an "aggrieved party" since it agreed with Edith Windsor that DOMA was unconstitutional. To the contrary, the federal government’s continuing enforcement of DOMA is "why Windsor does not have her money." Further, DOMA’s constitutionality "will have a considerable impact on many operations of the United States." Thus, the Second Circuit concluded, the U.S. is an "aggrieved party" for purposes of taking the appeal, despite the fact that it "may agree with the holding that the statute in question is unconstitutional" (citing INS v. Chadha).

Third, the Second Circuit also dispensed with BLAG’s argument that Edith Windsor’s case was not a good vehicle because it was unclear whether New York would recognize her Canadian marriage. The Solicitor General argues that the Second Circuit – like the district court – reached the conclusion that New York law was sufficiently clear to conclude that such law did recognize her "foreign marriage at the relevant time." Thus, there was no need to certify that question to the New York state court.

Finally, the Second Circuit rejected BLAG’s argument that the Supreme Court’s summary dismissal of the appeal in Baker v. Nelson (1972) controlled Windsor’s equal protection challenge. BLAG has asserted in all the DOMA challenges that Baker controls because, there, the Court summarily dismissed an appeal by a same-sex couple of the Minnesota Supreme court’s decision upholding the constitutionality of Minnesota’s marriage law, as interpreted to limit marriage to persons of the opposite sex. But the Second Circuit concluded that, even putting to the side the limited precedential value of summary dismissals, Baker involved a question – "whether same-sex marriage may be constitutionally restricted by the states" – distinct from the one before it: "whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA." The Second Circuit made a further point, the Solicitor General argues: even if "Baker might have had resonance" when it was decided, "it does not today," in light of the "manifold changes to the Supreme Court’s equal protection jurisprudence" since Baker. (The First Circuit also concluded that, while Baker limited arguments that might be made about any federal constitutional right of same-sex couples to marry, it did not control the issue of the constitutionality of Section 3.)

BLAG’s reply in Windsor is expected soon. Notably, despite the First Circuit’s cautious approach to the Court's guidance about the proper standard of review, BLAG, in its petition for cert in that case, claims that the First Circuit erred by "inventing" and applying to Section 3 "a previously unknown standard of equal protection review." What will BLAG say about the Second Circuit’s approach?

(In light of next week’s national election, perhaps it bears observing that the two Democratic members of the five-member BLAG have declined to join its defense of DOMA. While the Democratic Party Platform supports marriage equality, the Republican Platform fully supports DOMA and a federal marriage amendment. That said, the First and Second Circuit opinions were both authored by judges appointed by Republican president George H.W. Bush.)
Posted 12:09 PM by Linda McClain [link]

The October Surprise

Sandy Levinson

The Huffington Post has an absolutely essential piece  noting that Mitt Romney opposes FEMA and believes disaster relief should be either left to the states or to private organizations.  There is, in his world, apparently no role for the national government.  We're not all in this together, apparently. I am curious what Red States like Mississippii and Louisiana, who received millions upon millions of dollars (and perhaps not enough, even then) after Katrina, would think about living in Mitt-world.  They are, after all, the 47% that simply takes from the federal government. 

It would, perhaps, be tactless for President Obama to note that (almost) no one is going to rebuild his or her life following "Sandy" (I regret the name of this hurricane) by him/herself.  There will be lots and lots of help by others, including, quite obviously government.  (Incidentally, the libertarians who bewail the culture of "dependency" cannot logically praise private charity much, if any, more than public aid, for all of it represents an attack on the Ayn Rand/Paul Ryan vision that no one should expect or want a handout from anyone, period, full stop, end of conversation.  But, one hopes, every single Democrat (and democrat) in the country should be pouncing on Mitt for the next week and point out how completely disengaged he is from the very notion that one role of the national government is to provide for the Common Defense (against hurricanes as well as the reviving Red Menace of Mitt's dreams) and the General Welfare (including responding to massive hurricanes and floods). 

I suppose that Jack Welch will accuse Barack Obama of arranging for Sandy to devastate the East Coast simply to delude people into believing that Big Government and the Welfare State can actually help the country.  And, by the way, is Mitt any more respectful today than he was when delivering his acceptance speech that maybe, just maybe, the national government has a role to play in working with other countries to try to reduce the rise in sea level.   
Posted 5:18 PM by Sandy Levinson [link] (132) comments

Windsor v. United States: The Second Circuit Strikes Down DOMA and Says Intermediate Scrutiny is Proper Test

Linda McClain

On October 18, 2012, in Windsor v. United States, the United States Court of Appeals for the Second Circuit became the second federal court of appeals to strike down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. However, it was the first federal appellate court to do so using a heightened standard of review, in an opinion authored by Chief Judge Dennis Jacobs, appointed to the bench by Republican president George H.W. Bush. Experts on the United States Supreme Court are busy sorting out what will happen next and which DOMA case the Court will likely take up for review, now that petitions for certioriari are pending in several cases. However, the Second Circuit opinion deserves attention even apart from how it will fare in those sweepstakes.

In concluding that heightened scrutiny is the proper standard of review when considering DOMA because homosexuals are a quasi-suspect classification, the Second Circuit took the step that the Department of Justice urged back in February 2011, when Eric Holder informed Congress that the DOJ would not defend Section 3 of DOMA in Windsor. Holder observed that the Second Circuit had not yet resolved the relevant standard of review for classifications involving homosexuality, that the DOJ had concluded intermediate scrutiny was proper, and that Section 3 could not survive that test.

On June 15, 2012, the federal district court in Windsor declined to follow that route, observing that (as I wrote about in a prior blog) "eleven Courts of Appeals" had "applied the rational basis test to legislation that classifies on the basis of sexual orientation." The court's ruling  took cues from the First Circuit’s DOMA ruling, applying rational basis review as informed by the "pattern" evident in the Equal Protection trio of Romer v. Evans, City of Cleburne v. Cleburne, and U.S. Department of Agriculture v. Moreno. That pattern, the First Circuit observed, was to apply more careful or "intensified" scrutiny when laws exhibit a "desire to harm a politically unpopular group." Section 3 of DOMA, the Windsor district court similarly concluded, could not survive that test. A key plank in the First Circuit’s analysis was that Romer and Lawrence v. Texas (2003) signaled that the Supreme Court would likely apply more than deferential rational basis if it took up DOMA’s constitutionality.

The Second Circuit acknowledged the First Circuit’s reasoning for not adopting heightened scrutiny, but declined to follow it. It did not read Romer as implying the Court’s "refusal to recognize homosexuals as a quasi-suspect class," since litigants did not press that issue before the Supreme Court. Instead, it concludes, like the DOJ, that, henceforth, classifications based on sexual orientation should be subjected to intermediate scrutiny: they must be "substantially related to an important governmental interest." What’s more, the Second Circuit draws on two famous sex-based discrimination cases to explain that "substantially related" means that government’s explanation must be "exceedingly persuasive" (citing U.S. v. Virginia (1996) and Mississippi University for Women v. Hogan (1982)).

The Second Circuit bypassed the question of whether Section 3 of DOMA survived rational basis review (one judge argued in dissent that it did). Instead, it applied the four factors that the Supreme Court has used to decide whether a new classification qualifies as suspect or quasi-suspect. It readily found that sexual orientation qualified. On history of discrimination, the first factor, it noted that Lawrence recounted how criminal laws punishing homosexual conduct "demeaned" homosexuals’ existence and controlled their destiny. On the second, relation to ability (to contribute), it utilized Frontiero v. Richardson, a sex-based discrimination case, for the point that the characteristic singled out in the legislation "frequently bears no relation to ability to perform or contribute to society."

The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) argued that the third characteristic, that the group have a distinguishing characteristic, sometimes couched as "immutability," did not apply because sexual orientation is "not necessarily fixed," but can "range along a continuum." (Who knew members of Congress read Adrienne Rich!) However, the Second Court explained that the critical point was "whether the characteristic of the class calls down discrimination when it is manifest." In this case, that occurs "when a surviving spouse of a same-sex marriage [Windsor] seeks the benefit of the [federal] spousal deduction." In other words, married same-sex couples experience discrimination under Section 3 of DOMA when the federal government refuses to recognize their marriages.

Finally, on the fourth factor, political powerlessness, the Second Circuit invokes Frontiero to conclude that even if a group (like women) wins some political victories, it does not mean they may not be powerless for purposes of heightened protection, especially if they are under- represented in positions of power and authority. Noting the risks to gay men and lesbians from identifying their sexual preference publicly, the court concluded that "homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public."

 Applying the intermediate scrutiny test, the Second Court finds that the arguments offered by BLAG  for Section 3 of DOMA fail. Indeed, Chief Judge Jacobs observes that "at argument, BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny." First, BLAG argued there was a "unique federal interest" in maintaining a "consistent federal definition of marriage." However, the court properly concluded that this emphasis on uniformity was "suspicious" and deserved a "cold eye" cast upon it given the historical and continuing deference by Congress and the Supreme Court to "state domestic relations laws, irrespective of variations." The court finds support in a friend of the court brief filed by family law professors explaining that DOMA "left standing all other inconsistences in the laws of the states, such as minimum age, consanguinity, divorce, and paternity." The court invokes Romer in scrutinizing this uniformity claim: "discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Section 3's "unprecedented breach" of deference to federalism when it comes to state marriage law fails the "exceedingly persuasive justification" test.

BLAG’s other rationales also failed the intermediate scrutiny test. For example, "preserving traditional marriage as an institution" cannot suffice. Lawrence, striking down a sodomy law but analogizing to antimiscegenation laws, explained that appeals to history or tradition alone can’t save a law. But even if preserving marriage were an "important goal," Section 3 does not do so since it leaves it to states to define who may marry. Finally, the Second Circuit rejected two arguments that are staples in BLAG’s briefs: DOMA advances responsible procreation and provides an optimal parenting setting. The court concluded that promoting procreation may be important, but DOMA is not substantially related to that goal. Like the First Circuit, it concluded that DOMA does not provide any "incentives for heterosexual couples" – any "incremental reason" for them to engage in "responsible procreation."

Whether the First or Second Circuit has a better read on what the Supreme Court would likely conclude about the proper standard of review for DOMA, in light of Romer, Lawrence, and legal and social developments in the last few decades, is a topic for another day. The ACLU, representing Edith Windsor, released a statement praising the Second Circuit’s reasoning, noting that, if the Supreme Court also adopts a heightened scrutiny standard, it will "revolutionize" gay rights litigation. Meanwhile, Edith Windsor, at a press conference, said she was "thrilled" with the ruling, recounting that it was "so offensive" to her that the federal government regarded her deceased spouse, Thea Spyer – her life partner for 44 years – as a "stranger in my life."

Finally, worth mentioning – apart from its standard of review ruling – is the Second Circuit’s closing observation about the critical distinction between civil and religious marriage – a distinction I have argued is vital to the marriage equality issue: "Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status – however fundamental – and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door." (By the way, what religious institutions are performing marriages on Pearl Street?)

UPDATE: On Friday, October 26, the Solicitor General Donald Verrilli, Jr. filed a brief urging the Supreme Court that Windsor is the  "most appropriate vehicle" for reviewing the constitutionality of Section 3 of DOMA. I have posted, on October 31, an analysis of that brief.
Posted 4:47 PM by Linda McClain [link]

Kelman on Moral Grammar and Moral Heuristics

John Mikhail

Mark Kelman of Stanford Law School has posted a new paper to SSRN entitled “Moral Realism and the Heuristics Debate” (hat tip: Larry Solum).  Building on the detailed study of the behavioral economics literature in his book, The Heuristics Debate, Kelman turns his attention in this paper to some recent work in the cognitive science of moral judgment and its implications for law and legal theory.

Kelman’s main topic is the different approaches taken by Cass Sunstein and me to widespread moral intuitions and their relation to the legal regulation of risks and harms.  Roughly speaking, these approaches might be thought of as debunking (Sunstein) and vindicating (me); however, it would be a mistake to lean too heavily on these labels or to equate either of us with extreme positions on this issue.  Kelman recognizes this, and he supplies a complex, nuanced discussion of our respective accounts of moral intuition, which goes beyond anything previously available in the literature.  He notes interesting parallels in the disagreement between Sunstein and me and the debate between two camps of psychologists over the nature of intuitive reasoning in other domains: the heuristics & biases school (e.g., Kahneman & Tversky) and the “fast and frugal” school (e.g., Gigerenzer).  Finally, he seeks to embed these themes in the broader context of familiar paradigms in legal theory, from Langdell and Hohfeld to Coase, Posner, and Epstein.

Kelman’s paper is formidable and full of penetrating insights.  In some cases he appears to misconstrue my own views and commitments.  In any case, I will need to give his paper a close read and digest it before responding in print.  Readers interested in learning more about these topics might wish to take a look at Sunstein’s 2005 target article in Behavioral and Brain Sciences, together with open peer commentary offered by a range of commentators, including Matt Adler, Elizabeth Anderson, Barbara Fried, Jonathan Haidt, Peter Singer, Philip Tetlock, and myself.

For an introduction to my ideas on moral grammar, a good place to start might be this interview with David Edmonds of Philosophy Bites, together with this paper in Trends in Cognitive Sciences, this paper in Psychology of Learning and Motivation, and this brief comment in Emotion Review.  For more general and popular accounts, I would recommend this essay by Rebecca Saxe in Boston Review, this essay by Steven Pinker in The New York Times, this article by Greg Miller in Science, and this post by Sam McDougle in The Beautiful Brain.  The connection between moral psychology and human rights is explored in this essay on HLA Hart and, more recently, this contribution to an important new volume on human rights edited by Ryan Goodman, Derek Jinks, and Andrew Woods.  Finally, for the more ambitious, who would like to see all the pieces fitted together in one extended argument, a useful resource might be my book, Elements of Moral Cognition.

Here is Kelman’s abstract:

There has been substantial debate in the legal academy centered on the questions of whether universal moral intuitions exist and, if so, whether these intuitions have a privileged normative status, a debate both reflecting and partly reinterpreting classical jurisprudential debates about the existence of “natural law” and “natural rights.” There is a strong but underappreciated homology between the debates about the nature and quality of intuitive moral reasoning, and debates, associated with the Heuristics and Biases (H&B) school on the one hand and the “Fast and Frugal” (F&F) school on the other, about the nature and quality of our capacity to make self-interested decisions (decisions requiring both factual and a-moral evaluative judgment and decision making ability. There are those in the legal academy, most prominently Cass Sunstein, who accept that people indeed often have strong moral intuitions but believe these predispositions deserve little or no normative deference because the intuitions frequently merely reflect the use of inapt rules of thumb. Others, most prominently John Mikhail, believe people readily make non-reflective moral judgments that we cannot readily explain or justify logically that are grounded in our capacity to process a quite small number of critical features of a decision situation in precisely the way that F&F theorists believe we make most judgments. I explore the degree to which some of the virtues, and, more importantly, most of the problems, in both Sunstein's and Mikhail’s work are the features and shortcomings that have bedeviled the work of each of the schools on heuristic reasoning.
Posted 11:18 AM by John Mikhail [link]

Was John Yoo right after all?

Sandy Levinson

John Yoo is famous (or notorious) for suggesting that the American president should be conceived as similar to a Hanoverian monarch.  He has, of course, trotted out that theory with regard to the President's autonomous war powers, where I think he's wrong.  But there is one area where there might be something to Yoo's theory, which has to do with the way we all too often elect presidents without having more than the vaguest idea who will actually staff their administrations.  As I suggested in my previous post, this may be in part because we have a ridiculously over-individualized conception of the President and take seriously the absolute and utter fatuity of Romney's promising what he will do on his "first day in office" (just as Obama had promised to shut down Guantanamo). 

With Obama, for better and worse, we have an excellent idea who will staff his second term, save for Secretary of State, where it will apparently boil down to a choice between John Kerry and Susan Rice.  Presumably, there will be some other resignations, and, I must say, I'd love to know who will replace Tim Geithner, at best a debatable, if not egregious, choice as Secretary of the Treasury in the first term.  But with Ethc-a-sketch Mitt, we have no idea whether the Secretary of State will be mad-dog John Bolton (unlikely, perhaps, but who knows) or someone more sensible.  Will Richard Murdock (assuming he's a lawyer) emulate John Ashcroft and, after ignominious defeat in a Senate election, suddenly find himself Attorney General?  And so on.  A sensible political system might allow voters some insight on such issues before they vote, but, of course, that's not the American way of doing things.  Instead, we vote for pigs in a poke, full of illusions (and delusions) about what kind of people they'd actually appoint to important positions.  The Brits at least have "shadow cabinets"; we don't even have shadows of shadows.  It realy is as if we're still in the 18th century, voting for our elective monarch, constrained in some ways to be sure (again, see previous post), but with remarkable freedom concerning administrative appointments (save, of course, for Senate confirmation, which blows hot and cold as a genuine way of checking egregious appointments). 

One "benefit" of this election is that it demonstrates so many things that are wrong with our basic constitutional structures, but, insofar as the worst part of the Constitution is Article 5, I suspect that we will all continue to deny that the Constitution has anything to do with why most Americans, across party lines, have increasing contempt for their government.
Posted 5:38 PM by Sandy Levinson [link] (62) comments

Richard Murcock and Theodore Bilbo

Sandy Levinson

I happen to be reading a wonderful manuscript (alas, confidential) on the degree to which the New Deal was fatally tainted by the felt (and, as a political matter, accurate) need to work with viciously racist, but "liberal" so far as poor whites were concerned, people like Mississippi senator Theodore Bilbo.  This is not, of course, a brand new insight.  There is an extensive literature on the pacts with the devil made by FDR  (including, ultimately, the equaly necessary pact with Stalin to overcome the greater evil of Hitler).  FDR, of course, tried to do what he could by "purging" the Democratic Party of some of these mossbacks in 1938, when he suffered a stunning political defeat that effectively brought the New Deal to an end. 

So what does this have to do with Richard Murdock and other denizens of the Mad-dog Right?  Mitt Romney, of course, has endorsed Murdock, whose theory of theodicy apparently includes the beneficence of rape-induced pregnancies.  (I suspect that Paul Ryan has much the same view, but he is much too smart to articulate it and, in any event, has sold out his Catholic convictions for the opportunity to pant after Mitt and hope to use him as springboard to the Oval Office.)  Surprise, surprise.  It's Romney's job to try to generate a Congress that would actually be amenable to his programs in a way that Democrats (one hopes) will not.  So it's somewhat beside the point to criticize Romney for standing with the mad-dogs.  Rather, it is up to Democrats to point out, far more insistently than Obama has in fact done) that a President Romney is almost certainly to be in thrall to a host of mad-dogs, beginning with his curiously vanishing VP, Paul Ryan, who belies every one of the faux-moderate Etch-a-sketching done by the Marvelously Malleable Mitt.  And why, oh why, was there literally not a single word during any of the "debates" about appointments to the federal judiciary.  It is true that Obama seems to have only a limited interest in the judiciary, but I strongly suspect that Romney (and, more to the point, the mad-dogs who will control the Republican Party) do not share that sense of lassitude or desire for a Sunsteinian "minimalist" Supreme Court. 

The worst judicial appointments in my life time within the "inferior" federal judiciary were by John F. Kennedy, in the 5th Circuit, where, among other things, he appointed the law partner of the viciously racist successor to Bilbo, James Eastland, Harold Cox.  Was JFK a racist?  No.  He simply didn't care all that much (as I suspect is the case with Etch-a-sketch Mitt on abortion) and bent to the political realities of the then-Democratic Party, which Lyndon B. Johnson, to his eternal credit, destroyed by fighting for, and then signing, the Voting Rights Act of 1965.

We have this idiotic way of talking about Presidents as if they are truly independent of the poltiical party they lead and whose congressional members they must rely on for support.  It is as if Madison prevailed with an idealized 'separation of powers" system.  But as Rick Pildes and Daryl (no relation) Levinson accurate have pointed out, it's "separation of parties," not of powers, that define our system in most important respects.  That is why Romney has no choice but to offer enthusiastic support for cretins like Murdock and Akin (or, for that matter, why the liberal saint Adlai Stevenson thought it politic to pick Alabama Senator John Sparkman, a "moderate segregationist," as his running mate in 1960--and we can be sure that JFK did not realize who exactly he was getting, re race, with Lyndon Johnson, whose record in the Senate was thoroughly mixed, as Robert Caro points out.

It all comes down to the Constitution (at least in some important respects) and the utter failure of any candidates, debate moderators, or pundits to have anything useful to say it.  Better to treat the presidency as a one-man show for which the debates are an audition.  That may be true with regard to drone attacks, which now seem to be firmly established as a new prerogative of the President, regardless of such old-fashioned notions as "due process of law."  But, for better or worse, we haven't moved toward complete "constitutional dictatorship" yet, and Congress still has some prerogatives of its own, such as having to decide on tax policy.

Posted 5:16 PM by Sandy Levinson [link] (17) comments

Can Mitt Romney Succeed as President? (And a Note on Terrible Titles)

JB

Over at the Atlantic, I have a long essay applying Stephen Skoworonek's theories to a Mitt Romney presidency. I conclude, consistent with Gerard's view on this blog, that a Romney presidency would find itself in a very weak position politically. Romney would either be an affiliated president who would find it hard to keep his fractious party unified, or a disjunctive president who would preside over the end of the Reagan regime. For the full analysis, read the whole thing.  (Also see Justin Peck's very interesting analysis from last month, which reaches a similar conclusion.)

Unfortunately, you don't get to choose the titles when you write for a major magazine, and the editors at the Atlantic chose two pretty awful titles for the piece. The first is "Does the GOP want a Romney Presidency?" Well of course they do!  Would they rather have Barack Obama running the government and picking the judges for the next four years? The second title, which in its way is even more egregious, is "Political Science Says: A Romney Presidency Would Be Doomed." This is the sort of headline that should make any serious scholar cringe. Of course, political science says no such thing. There are lots of theories about the presidency, and even if one starts from Skowronek's premises, it's not certain what the result will be. All we can do is engage in educated guesses based on historical analogies, which are never perfect. My best guess is that Romney would be in a whole lot of trouble if he wins, but I don't think that political science has proven this. Again, read the whole thing and decide for yourself.

UPDATE: The editors have now changed the title to the more plausible "Why the GOP should fear a Romney Presidency."  The point is that the old Reagan coalition is nearing exhaustion, the contemporary GOP is in a quandary, and the party will soon have to change, whether it wins this election or not. Of course, even if Republicans have reason to fear that Romney will be an ineffective president, I suspect they probably fear Barack Obama more.
Posted 4:31 PM by JB [link]

The Roberts Opinion on the Minimum Coverage Provision

Neil Siegel

Columbia Law School Professors Nate Persily, Gillian Metzger, and Trevor Morrison are editing a volume on NFIB v. Sebelius that will appear this spring. In my contribution to the volume, I assess Chief Justice Roberts’s responses to the Affordable Care Act’s minimum coverage provision. I approach the Roberts opinion both from the internal perspective of the faithful legal practitioner and from the external perspective of the system analyst.

From the internal perspective, I ask whether the various parts of Roberts’s opinion are legally justifiable. I focus on what Roberts decided, not why he decided it that way.

I conclude that law is fully adequate to explain the Chief Justice’s vote to uphold the minimum coverage provision as within the scope of Congress’s tax power. Roberts embraced the soundest constitutional understanding of the Taxing Clause. He also showed fidelity to the law by applying—and not just giving lip service to—the deeply entrenched presumption of constitutionality that judges are supposed to apply when federal laws are challenged on federalism grounds.

By contrast, I argue that Roberts was unpersuasive in concluding that the minimum coverage provision was beyond the scope of the Commerce and Necessary and Proper Clauses. Roberts failed to apply the modern doctrine of “constitutional avoidance,” thereby needlessly deciding these questions. What is more, he decided them wrongly. Fortunately, the doctrinal consequences of this portion of his opinion will likely (although by no means certainly) prove insignificant.

From the external perspective, I ask what Roberts may have accomplished in responding to NFIB as he did. By prohibiting Congress from requiring Americans to purchase products against their will, Roberts partially expressed new popular and professional constitutional arguments—arguments developed by those who had mobilized against the prevailing view among legal experts that the minimum coverage provision is constitutional. By upholding the minimum coverage provision under the Taxing Clause, he validated the values of the ACA’s supporters and respected the post-New Deal convention that the Court should uphold momentous social welfare legislation. By partially validating the sincerely held moral beliefs of both sides, Roberts may have succeeded in sustaining some measure of social solidarity amidst intense disagreement over health care reform, thereby enhancing the public legitimacy of constitutional law.

Roberts may or may not have intended to practice judicial statesmanship, and his statesmanship may not be enough to justify his contradictions of sound legal reasoning. But statesmanship probably provides the most persuasive way to try to justify his analyses of the Commerce and Necessary and Proper Clauses. Such a defense, however, would require the application of criteria that are difficult to justify as legal from the internal point of view.
Posted 2:34 PM by Neil Siegel [link]

Dark-Money Campaign Financing in Montana

John Mikhail

Investigative reporter Paul Abowd of the Center for Public Integrity uncovers the details in Mother Jones.  A sample:


Posted 7:00 AM by John Mikhail [link]

Justice Jackson on the Electoral College

Gerard N. Magliocca

At a certain point, you feel like you've read every interesting Supreme Court opinion.  Until recently, though, I was unaware of Ray v. Blair, 343 U.S. 214 (1952), which is the Court's most detailed analysis of the Electoral College.

Prior to the 1952 Democratic presidential primary, the Alabama Democratic primary instituted a rule that every presidential elector candidate had to swear an oath pledging that he would support the man nominated by the Democratic National Convention.  In 1948, Alabama's Democratic electors voted for Strom Thurmond, and the Party was trying to prevent a similar revolt.  One candidate refused to take this oath and sued claiming that he had a right to vote for any qualified presidential candidate under the original understanding of the Electoral College and the Twelfth Amendment.

The Supreme Court, by a 5-2 vote, rejected this challenge.  Justice Reed's opinion rested on the grounds that:  (1) this was an internal party matter; and (2) the pledge to support the convention's nominee was not necessarily binding.  (In other words, the Court did not reach the question of whether a state could lawfully punish a "faithless elector.")

Justice Jackson (joined by Justice Douglas!) dissented and wrote a fascinating critique of the Electoral College.  After describing the original concept of the Electoral College, he explained that:

"Electors, although often personally eminent, independent, and respectable, official became voluntary party lackeys and intellectual nonentities to who whose memory we might justly paraphrase a tuneful satire:  'They always voted at their Party's call.  And never thought of thinking for themselves at all.'  As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis."

Justice Jackson then continued with a call to abolish the Electoral College:

"The demise of the whole electoral system would not impress me as a disaster. At its best it is a mystifying and distorting factor in presidential elections which may resolve a popular defeat into an electoral victory. At its worst it is open to local corruption and manipulation, once so flagrant as to threaten the stability of the country. To abolish it and substitute direct election of the President, so that every vote wherever cast would have equal weight in calculating the result, would seem to me a gain for simplicity and integrity of our governmental processes.  But the Court's decision does not even move in that direction. What it is doing is to entrench the worst features of the system in constitutional law and to elevate the perversion of the forefathers' plan into a constitutional principle. This judicial overturn of the theory that has come down to us can not plead the excuse that it is a practical remedy for the evils or weaknesses of the system."

He ended on this note:  "In the interest of free government, we should foster the power and the will to be independent even on the part of those we may think to be independently wrong."

Great stuff, especially as on the eve of an election where the popular vote winner could lose.


Posted 11:13 AM by Gerard N. Magliocca [link] (44) comments

Binders are Better than Blinders

Joseph Fishkin

The most interesting moment in last night’s presidential debate, to my mind, was this: the most thoughtful defense of affirmative action I have seen in a presidential debate—and it was from Mitt Romney.  Moreover, this was a defense of affirmative action as it is actually practiced by the American companies that are serious about affirmative action.  Too many of our fights about affirmative action in this country take place in a kind of fantasyland where the employer or school always knows with perfect precision, before practicing affirmative action, who are the most qualified candidates—and then “affirmative action” means rejecting the most qualified in favor of less qualified candidates.  In reality, affirmative action often looks much more like what Mitt Romney says he did as Governor: making an affirmative effort to seek strong candidates from outside the usual channels, or to give some applicants a second look, out of an acknowledgment that one’s process otherwise seems to result in a pool with an overwhelming demographic skew (in Romney’s case, an administration of basically all men).

So I have been somewhat dismayed to watch today as various commentators, internet meme-makers, and gleeful Democrats turn Romney’s “binders full of women” into a punch line in the morning-after debate coverage.  Sure, it was inartfully phrased.  And yes, Democrats have plenty of justification for arguing that while Romney may have hired women as Governor, his actual policy proposals are not so helpful to the cause of equal employment opportunity for women.  For instance, he did not support the Ledbetter Fair Pay Act, and on the other hand did support the Blunt Amendment, which would have allowed all employers (not just religious groups) to kill contraceptive coverage for their female employees as a matter of “conscience.”  All that is fair game.  But I hope we do not miss the opportunity to have a little moment of appreciation for the usefulness, and frankly the importance, of the kind of affirmative action that Romney says he practiced as he took office as Governor.

For instance, we might ask: Why would Romney’s aides have initially come up with a pool of candidates that was essentially all male?  There are a number of different stories, none of them particularly good, but none of them particularly shocking.  We could talk about the subconscious bias in who leapt out to those aides as a strong, qualified candidate; we could talk about network effects in Massachusetts political circles, where who your friends are matters a lot, and most women are outside the old boys’ network.  (Speaking of which, what is up with Massachusetts politics?  For a Democratic state, it seems almost never to elect women to Congress.)  In any event, getting on Romney’s initial list required passing through a particular kind of bottleneck* in order to win those key aides’ approval.  It would seem that the shape of that bottleneck was, for whatever reason, not one through which women could easily pass.  On Romney’s account, he decided to do something about that, which is to his credit.

The alternative—a race-blind, sex-blind, generally-demographics-blind insistence that one’s process (whatever it may be) is perfectly meritocratic, and any diversity must be a sign of lowered standards—is just a fantasy.  Moreover, in politics, demographics are political—the optics of an all-male administration send an important signal, even if no such signal was intended.  I think most Republicans know both of these things, and furthermore, that their actions often reflect this knowledge.  But they rarely will admit such thinking publicly.  Publicly, we are told that Clarence Thomas, for instance, was chosen simply because he was the best jurist for the job, and without any consideration at all of the optics of replacing Thurgood Marshall with an all-white court.  Publicly, we are told that Sarah Palin was simply the most meritorious candidate for the job of Vice President, for reasons that had no connection to any efforts to diversify the Republican ticket.  I find these assertions silly—and I say that as someone with tremendous respect for Justice Thomas, who (contrary to ill-informed liberal stereotype) has turned out to be a powerful and important voice on the Court.

And so I appreciate that Governor Romney has come out and said that he practiced affirmative action.  Perhaps it is an easier thing for him to say in the case of sex than race, I do not know.  But he said it, and that’s important.  File it away just in case a Romney-appointed Justice is ever in a position to be the fifth vote for making what Romney says he did illegal.  We’re not at that point yet—current law on voluntary affirmative action in employment seems more permissive than the parallel body of law in higher ed—but certainly with a Romney victory, and the right retirements on the Court, that could change faster than you can say “binders full of women.”

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Posted 11:30 PM by Joseph Fishkin [link]

Hamdan and the Continuing Quandary of Military Commissions

Jonathan Hafetz

The D.C. Circuit yesterday unanimously reversed the military conviction of Salim Hamdan for material support for terrorism (MST).  The opinion highlights the continuing problems surrounding Guantanamo military commissions, more than a decade after their creation.

Writing for the panel, Judge Brett Kavanaugh concluded that MST was not a violation of the law of war at the time Hamdan provided the support to al Qaeda (between 1996 and 2001).  While the Military Commissions Act of 2006 (MCA) made MST a crime prosecutable by military commission, it did not authorize retroactive punishment (and to conclude otherwise, the panel said, would raise constitutional problems under the Ex Post Facto Clause).  The commission thus could not properly try Hamdan for MST (the only offense of which he was convicted).

Over at Lawfare, Steve Vladeck offers some excellent insights about Hamdan's potential impact on other commission prosecutions, particularly that of Ali al-Bahlul, whose appeal is pending before the D.C. Circuit.  As Steve notes, the panel's requirement that there be a firmly grounded customary international law rule defining the specified conduct as criminal could spell trouble for Al-Bahlul's conspiracy conviction. (Recall that in 2006 a plurality of the Supreme Court concluded that conspiracy was not a law-of-war violation triable by military commission in the first incarnation of Hamdan's case invalidating the pre-MCA commissions).

More broadly, Hamdan is likely to impact the ongoing debate over whether to prosecute terrorism suspects in military commissions rather than federal courts.  Proponents of using federal courts--and I include myself in that group--will seize upon Hamdan as further evidence of the U.S. government's misguided effort to use military commissions instead of Article III courts which routinely prosecute suspects for MST.  One wrinkle is that it is unclear whether Hamdan could have been charged in federal court with MST because Congress did not explicitly give the federal MST statute extraterritorial effect until after Hamdan had engaged in the conduct in question. The same, moreover, applies to most other Guantanamo detainees who could potentially be charged with MST for such conduct as attending an al Qaeda training camp since their alleged material support typically pre-dates Congress's amendment to the federal MST statute.

Yet, even if the federal MST statute were unavailable to prosecute individuals like Hamdan in federal court, that does not justify creating an alternative forum--a shadow court system--to prosecute conduct that was not criminal at the time.  Further, the original impetus behind military commission was not to fill perceived gaps in existing federal criminal jurisdiction but to evade due process guarantees, to ensure convictions, and to conceal evidence of torture and other mistreatment.  As the Supreme Court indicated in its 2006 Hamdan decision, circumvention of established norms and procedures is not a proper use of military commissions.

The important question remains whether the government can use a MST charge to prosecute post-2006 conduct in a military commission. If so, it makes military commissions a more viable forum for future terrorism cases beyond the existing Guantanamo detainee population.  That question turns on whether, as Hamdan argued, the Constitution prevents Congress from defining as a war crime prosecutable by military commission an offense not recognized as a violation of international law.   The D.C. Circuit declined to decide that issue (although Judge Kavanaugh, writing for himself, said Congress has that authority).

Hamdan highlights the perils of using military commissions for future cases.  It serves as a reminder that even the most basic issues--here, whether Congress can constitutionally prosecute MST as a war crime--remain highly contested.  This uncertainty suggests that terrorism prosecutions will remain engulfed by controversy if they are conducted in military commissions rather than federal courts.


 





Posted 9:45 AM by Jonathan Hafetz [link]

Interpreting the Twelfth Amendment

Gerard N. Magliocca

One of the golden oldies in constitutional interpretation is the question of whether the Vice-President can preside over his own impeachment trial as President of the Senate.  The constitutional text does not prohibit this obvious conflict-of-interest, but such a scenario is hard to reconcile with basic fairness.  (In Akhil Amar's new book, he makes a persuasive case that vice-presidential participation as a judge is his own case would violate the structural principles of the Constitution.)

A different question is presented by our practice under the Twelfth Amendment, which is that the Vice-President may preside over the count of the Electoral College when he is a candidate.  Al Gore did this in 2001 and ruled against members of the House who wanted to challenge the result in Florida. Indeed, as Bruce Ackerman and David Fontana showed in an article a few years ago, Thomas Jefferson gave himself a favorable ruling when he counted the votes from Georgia for himself in 1801.

Now here is my question.  The Twelfth Amendment provides that if no candidate for Vice-President gets a majority in the Electoral College "then from the two highest numbers on the list, the Senate shall choose the Vice-President."  Suppose the 2012 election ends in a 269-269 tie.  The new Senate (on Jan. 3) votes for Vice-President and splits 50-50.  Can Joe Biden cast the tie-breaking vote for himself?  If not, how would the tie be broken?
Posted 9:44 PM by Gerard N. Magliocca [link] (26) comments

Debunking a Progressive Constitutional Myth; or, How Corporations Became People, Too

Guest Blogger

John Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law and Professor of History at Yale Law School. You can reach him by e-mail at john.witt at yale.edu
Posted 9:53 AM by Guest Blogger [link]