Law

Supporters of Marriage Equality Need to Quit Whining

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You know how I felt about President Obama declaring himself in favor of same-sex marriage. I was gobsmacked . It’s politically risky . It’s symbolically powerful , in ways that Melinda Hennenberger noted sharply at the Washington Post . It pushed Senator Harry Reid, the next-highest-profile Democratic laggard on the issue, to support marriage equality, making full marriage rights pretty much the official platform of the entire Democratic Party. So I've been surprised by the number of people declaring that the announcement was too little, too late. Maybe, yes, it would have been better for him to have made his declaration a few days before, when his opinion might have influenced the appalling vote in North Carolina, which on Tuesday joined all the rest of the former Confederate states—and, actually, most of the country —in writing its opposition to marriage equality into its constitution . Okay, it's worse than that: The North Carolina law bans any recognition of same-sex partners or...

“Inspired” But Not Read

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“I happen to believe that the Constitution was not just brilliant, but probably inspired,” Mitt Romney told a town-hall meeting in Euclid, Ohio, on Monday. It may be that, like many who like to thump sacred texts, he has simply never read it. Media commentary has focused on Romney’s flat-footed refusal, or inability, to talk back to a questioner who suggested that President Obama should be “tried for treason” because he is “operating outside the structure of our Constitution.” But it’s worth taking a moment to note that “treason” is a term Americans seem to take lightly these days (Witness Rick Perry’s remark that Fed Chairman Ben Bernanke, a former George W. Bush staffer, would be “almost treasonous,” and perhaps guest of honor at a Texas necktie party, if he used the Fed’s legal authority to try to prevent the economy from falling back into recession). The Framers didn’t take the term lightly, and their care is reflected in one of the Constitution’s most important, though little-...

Striking Down the PPACA: Still Not A Desirable Outcome

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Jon Rauch has an imaginary dialogued with the late Ted Kennedy in which he argues that a Supreme Court decision striking down the Affordable Care Act (a k a the PPACA) might actually be good for liberals. "If the Supreme Court guts another important law and conservatives cheer even louder," Rauch argues, "their credibility as advocates of [judicial] restraint will be shot.” And, in addition, striking down the PPACA would put us on the path to national health insurance. Perhaps, then, striking down the PPACA is something that progressives should secretly wish for? Racuh's argument is a little bit different than contrarian arguments based on the legitimacy of the Supreme Court , but I don't find them any more convincing. First, Rauch's argument is a variant of the argument that judicial decisions produce a unique amount of backlash, which means an inevitable reference to Roe v. Wade : You bet. Remember Roe v. Wade, the 1973 case that made abortion a constitutional right? At the time, it...

In Voter ID Case, Court Tells Texas to Quit Stalling

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In what read like a pretty clear smack-down, the federal court hearing the Texas voter ID case yesterday ordered the state to get its act together and quit stalling—or lose all hope of implementing a voter ID law by the November elections. The situation is somewhat ironic. Texas is suing the the Department of Justice since it did not approve the latest effort the state's voter ID law, among the most stringent in the nation. The DOJ argues the law will disproportionately impact minority voters. The state is racing against the clock, hoping to implement the law in time for the November elections—with the rather obvious subtext that this law will benefit Republican candidates by suppressing turnout among poor and minority voters who are likely to vote Democratic. The DOJ tried to delay the court date, set for July 9, but the court refused. Since then, however, the order said, "Defendants have worked tirelessly in discovery so that this case may be tried the week of July 9, 2012." The...

A Black Cloud Over the Ballot Box

The battle over voter ID

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Americans who care about the right to vote are faced with an ugly reality as the 2012 elections come into view: no matter how many courts rule that voter identification laws will disenfranchise eligible citizens and no matter how many states U.S. Department of Justice analysts determine—using data supplied by the states themselves—that strict voter ID laws discriminate against people of color, voter identification laws will be in place in a number of states throughout the country in November. Numerous articles written over the last few months have presented the incredibly sad stories of Americans, particularly the elderly, who, unable to obtain the necessary identification, won’t be able to cast a ballot . We know from comparisons of voter registration lists and state Department of Motor Vehicle records that hundreds of thousands of citizens don’t have the ID needed to vote. What does this mean? Quite simply, we must redouble our efforts to protect American voting rights. While we...

Face It: SB 1070 Is about Race

“Before you get into what the case is about,” Chief Justice John Roberts told Solicitor General Donald Verilli at the beginning of the government’s argument in United States v. Arizona, “I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.” A non-lawyer might be puzzled. The case, argued Wednesday, is testing the constitutionality of part of Arizona’s S.B. 1070, a statute that seeks to drive undocumented immigrants out of the state by rigid law enforcement. S.B. 1070, passed in a state that borders Mexico, will bring about many more stops and detentions of brown-skinned people, citizens or not. But the government chose not to argue that issue in its brief, and Verilli agreed that the profiling issue was off the table. The government’s argument, taken as a whole, is this: The Constitution gives the federal government exclusive authority over immigration and naturalization...

Shooting Blanks

(AP Photo/Charles Rex Arbogast)
In many ways, this presidential election features a reversal of a pattern we've gotten used to in recent campaigns. More often than not, it's the Republican who is self-assured and ideologically forthright, while the Democrat apologizes for what he believes, panders awkwardly, and generally acts terrified that the voting public might not like what he has to say. This time around, Barack Obama is the confident candidate, and Mitt Romney is the worried one (which says far more about these two men than it does about this particular historical moment). But there is one major exception to this pattern, on an issue that has re-emerged after being dormant for a decade and a half: guns. It isn't that Romney isn't pandering unpersuasively on the issue. What's different is that Barack Obama's campaign seems frightened of its own shadow and is trying hard to convince Americans that Obama is actually some kind of pro-gun president. Which, for all intents and purposes, he is. A week and a half ago...

Dworkin on Why the PPACA is Constitutional

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Ronald Dworkin has an article defending the constitutionality of the Patient Protection and Affordable Care Act in the New York Review of Books that offers an excellent primer on the relevant issues. There are two sections I'd recommend in particular. First, in Section II Dworkin does the most lucid job I've seen so far in explaining why the "activity/inactivity" distinction made by the challengers is so weak: The rhetorical force of their examples, about making people buy electric cars or broccoli, depends on a very popular but confused assumption: that it would be tyrannical for any government to force its citizens to buy what they do not want. In fact both national and state governments steadily coerce people to do just that through taxation: they make them buy police and fire protection and pay for foreign wars whether they want these or not. There is no reason in political principle why government should not make people pay directly for its services through insurance rather than...

Arizona Asks the Court Not to Trust the Feds

(Krista Kennell/Sipa Press)
This term’s last oral argument ends next week with yet another blockbuster case— Arizona v. United States , the challenge to Arizona’s harshly anti-immigrant S.B. 1070 . This case poses vitally important questions about individual rights, racial profiling, and the future of individual equality in the United States. But don’t expect to hear them argued openly next week. Instead, arguments will be couched almost entirely in the language of “federal preemption,” a subject so abstruse and technical that it induces coma in even the hardiest law-review editors. But lurking underneath the talk of “conflict preemption” and cigarette-labeling statutes are issues of human equality and the emerging constitutional question of our time: When, if ever, are Congress and the executive branch owed deference by the states and by their special protector, the Roberts Court? The issue is whether four sections of S.B. 1070 usurp the federal government’s role in regulating immigration matters—a power the...

Bush-Appointed Judge Does the Full Lochner

I've argued that the legal arguments against the Affordable Care Act are just libertarianism in a thin disguise—the arguments fundamentally make very little sense unless they're part of a broader argument about the unconstitutionality of the welfare state. Janice Rogers Brown, the ultra-reactionary appointed by George W. Bush to the prestigious D.C. Circuit Court of appeals, doesn't see any need for the disguise. In a recent concurrence , Brown lamented the fact that the courts no longer arbitrarily substitute their judgment about economic regulations for that of legislatures: The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender...

What Does an Abortionist Look Like?

(AP Photo/Richmond Times-Dispatch, Joe Mahoney)
She’s a single, unemployed mother with three children who finds out that she’s pregnant—just after the father has been sent to prison. She says she is distraught at the idea of hurting her kids by adding another child to the family, giving each of them less money, time, and attention, dragging them further into poverty. But she lives in rural southeastern Idaho, a two-and-a-half-hour drive from the nearest clinic in Salt Lake City—and getting an abortion would require two round trips there, because of the mandatory waiting period. So she takes RU-486, ordered online, self-supervised. She freaks out at the fetus’s size, stashes it on her back porch, tells a friend, and gets reported to the police. And, is promptly arrested for inducing her own abortion. To put it mildly, Jennie Linn McCormack doesn’t sound like the world’s most responsible person—except that she apparently had the good sense to realize she was not going to be a good parent to another child. I haven’t interviewed her...

Don't Blame "Corporate Personhood"

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A merican politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission , which swept away any limits on election-advocacy ads by corporations, unions, and “independent” political-action committees (PACs) and issue groups. Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill. Citizens United is a bad decision. This obvious fact may even be dawning on the Court’s conservative majority, which is taking a surprisingly leisurely look at American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court directly challenged Citizens United , in essence telling the...

Zimmerman's Fair Trial

(AP Photo/Orange County Jail via The Miami Herald, File)
You know, by now, that George Zimmerman has been arrested and charged with second-degree murder. I am relieved. Like so many, I’ve been just crazed over the fact that an armed man could follow an unarmed teenager walking on the street, shoot and kill him, and not be arrested—all in a way that suggests that it happened because the teenager was black and the shooter was not. Maybe it was self-defense. The evidence I’ve seen sure doesn’t suggest that. Maybe it wasn’t racial at all. Maybe the tough-on-crime prosecutor won’t be able to disprove self-defense, given the now-notorious Stand Your Ground law (do read Mother Jones ’ examination of the money trail behind the law). Maybe the judge won’t be able to stand up to the public scrutiny. Criminal law isn’t perfect. Judges aren’t perfect. Juries aren’t perfect. But at least the evidence will be presented, according to rules, in a public forum. Serious people will attempt to decide whether or not George Zimmerman committed murder. No, we...

Of Course a Decision Striking Down the ACA Would Be "Judicial Activism"

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Orin Kerr outlines a five-part test for whether a decision can be called "judicial activism" as a means of assessing whether the label could be fairly applied to a decision striking down the Affordable Care Act. Roughly, the criteria are: 1) whether the decision was motivated by the policy preferences of judges; 2) whether it expands judicial power for future cases; 3) whether it was inconsistent with past precedents; 4) whether it struck down a "law or practice"; and 5) whether the decision was "wrong." On three of the first four criteria, Kerr essentially agrees that a decision striking down the ACA would be "activist." On points No. 3 and No. 4, he concedes explicitly (while arguing, plausibly enough, that No. 4 isn't a useful criterion in a country with firmly established judicial review). On No. 1, he all but concedes, arguing that "if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common." Given this, we can go ahead and...

The Fruitless Search for the Supreme Court's Rationale

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Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court's conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court's interpretation of the Constitution's commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can't toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. "You have built a fantasy mansion on the Commerce Clause," the lawyer tells Smith. "You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called 'inactivity,' lock the door, and don't let you in." None of us have any way of knowing if this is what the justices are actually thinking, persuasive as it sounds. But there's something going...

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