Wednesday, October 31, 2012
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
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.
Monday, October 29, 2012
The October Surprise
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.
Friday, October 26, 2012
Windsor v. United States: The Second Circuit Strikes Down DOMA and Says Intermediate Scrutiny is Proper Test
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.
Kelman on Moral Grammar and Moral Heuristics
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.
Wednesday, October 24, 2012
Was John Yoo right after all?
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).
Richard Murcock and Theodore Bilbo
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.
Can Mitt Romney Succeed as President? (And a Note on Terrible Titles)
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.)
The Roberts Opinion on the Minimum Coverage Provision
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.
Dark-Money Campaign Financing in Montana
Investigative reporter Paul Abowd of the Center for Public
Integrity uncovers the details in Mother Jones. A sample:
Tuesday, October 23, 2012
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.
Wednesday, October 17, 2012
Binders are Better than Blinders
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).
Hamdan and the Continuing Quandary of Military Commissions
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.
Monday, October 15, 2012
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.)
Debunking a Progressive Constitutional Myth; or, How Corporations Became People, Too