Possible Solutions to America’s Gun Problem

Posted by:
Category: Constitutional Interpretation, Criminal Law & Process, Political Processes & Rhetoric, Public
Leave a Comment »

Glock_19_Gen_4_frontThe first step in solving any problem is admitting that a problem exists. America has a gun problem. Guns are all too easy for those with ill intent to obtain. So why worry about gun control and not knife control? Guns allow murderers to exponentially increase fatalities. Compare, if you will, the knife attack in China in which six terrorists killed 29 people and wounded 130 others with the Virginia Tech shooting, in which a single shooter killed 32 people and wounded 20 others. Anecdote aside, one only need to intuit that guns possess extraordinary risks uncommon to other weapons. We need to acknowledge the risks that guns possess.

America averages one mass shooting a day. Clearly something needs to be done, and we must do it without delay. Several observers have suggested ways in which gun violence could be reduced, both from within and outside of the legal system.

Milwaukee Police Chief Ed Flynn has repeatedly called for illegal gun possession to be a felony under Wisconsin law . It is currently a misdemeanor, no matter how often an individual has perpetrated the crime. This means that when police catch someone with a gun who should not have it, all they can do is take it away, slap that person with a fine, and let them go. This is not a sufficient deterrence for people who should not have guns and does not do enough to keep them from possessing guns. Read more »

Print Friendly



Supreme Court Roundup Part One: Obergefell v. Hodges

Posted by:
Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Marquette Law School, Public, U.S. Supreme Court
Leave a Comment »

b599a34c0d512e42e3f5277e172bbebcd745dd98Today marks the beginning of the United States Supreme Court’s 2015-2016 Term, and coincidentally it also marked my participation in an annual event at the Marquette University Law School entitled “Supreme Court Roundup.”  Along with Cato Institute Scholar and Supreme Court expert Ilya Shapiro, I was invited by the Law School Chapters of the Federalist Society and the American Constitution Society to share my perspective on three cases from the Supreme Court’s docket last year.  The cases we discussed included Obergefell v. Hodges (the “Gay Marriage case”), King v. Burwell (the “Obamacare case”) and Yates v. United States (the “fish case”).  Thanks to the law students for the invitation and a special thank you to Mr. Shapiro for his participation.  What follows are my prepared remarks on the Obergefell case.

I call this case “Thurgood Marshall’s Revenge.”

In Obergefell v. Hodges, the Supreme Court held that state laws denying marriage licenses to same sex couples violated the Equal Protection Clause of the United States Constitution.

Justice Kennedy’s majority opinion in Obergefell is notable for what it does not talk about. The majority opinion does not rely upon the theory that marriage is a fundamental right and that therefore state laws infringing upon the right to marriage must be subjected to strict scrutiny. Nor does the majority opinion rely upon the theory that homosexuals are a suspect class, thereby subjecting state laws that treat homosexuals different than heterosexuals to strict scrutiny under the Equal Protection Clause.

The methods by which the Court has traditionally determined whether to apply heightened standards of review to legislative acts – strict scrutiny, intermediate scrutiny, heightened rational review – are what are known as “heuristic devices.” These are artificial aids to problem solving. The Constitution does not use the phrases “strict scrutiny” or “suspect class,” but by creating artificial rules that group cases under these headings, the Supreme Court has developed a methodology for defining the outer boundaries of state policing over individual freedom.

Instead of using the Obergefell case as an opportunity to develop and clarify how the concepts of strict scrutiny and suspect class inform the Court’s interpretation of the Constitution, the majority opinion simply ignores these heuristic devices altogether. In doing so, the majority seems to be belatedly embracing the view of Justice Thurgood Marshall in a 1973 dissenting opinion. Read more »

Print Friendly



Wisconsin’s Narrow Interpretation of Padilla v. Kentucky

Posted by:
Category: Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Immigration Law, Prisoner Rights, Public, Wisconsin Supreme Court
Leave a Comment »

4c556cb87b0a9_imageWhile in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction.  559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.

Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.

The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence. Read more »

Print Friendly



Constitution Day Trivia Tidbits

Posted by:
Category: Constitutional Interpretation, Constitutional Law, Public
1 Comment »

constitutionSeptember 17 marks Constitution Day, the day in 1787 on which delegates to the Constitutional Convention signed the United States Constitution. Yesterday, the ABA Journal posted an interesting article to celebrate. The article contains 10 lesser-known facts about our Constitution, including these:

  • Most voters today would not have had the right to vote under the original Constitution. Voting rights were limited to propertied white males.
  • The word “God” never appears in the Constitution or the Bill of Rights. The source of all government power is in “the People.”
  • The word “democracy” never appears in the Constitution or Bill of Rights. James Madison and Alexander Hamilton claimed in the Federalist Papers that democracies were a disaster.
  • The First Amendment was not originally first. It started out as the third. For that matter, the Second Amendment was not originally the second. The original first and second amendments dealt with the size of Congress and with issues relating to Congress’s pay.

See here for the rest of the facts, and test your knowledge of the Constitution with the short quiz How well do you know the U.S. Constitution at the bottom of the page. It’s not as easy as you’d think! Next week, I’ll post on Professor Chad Oldfather’s interesting Constitution Day presentation on constitutional interpretation.

Print Friendly



The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

Posted by:
Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Human Rights, Judges & Judicial Process, Legal History, Political Processes & Rhetoric, Public
1 Comment »

b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others. Read more »

Print Friendly



The Chief’s Lawsuit

Posted by:
Category: Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Public, Wisconsin Supreme Court
2 Comments »

220px-Shirley_AbrahamsonA lawsuit filed in federal court by a sitting Chief Justice of a state Supreme Court against her colleagues is certainly unusual, if not unprecedented.  The reaction to the filing of the complaint in Abrahamson v. Neitzel  by the mainstream media has ranged from viewing the lawsuit as comedy (The Milwaukee Journal Sentinel: “Will the Real Chief Justice Please Stand”) to viewing this latest development as part of an ongoing tragedy (The New Yorker: “The Destruction of the Wisconsin Supreme Court”).  However, the legal question at the heart of the Chief’s lawsuit is actually quite interesting.

Does the new method for selecting a Chief Justice of the Wisconsin Supreme Court take effect in the middle of the sitting Chief Justice’s term, or does it take effect upon the conclusion of the term of the current Chief?

Complicating the issue is the fact that an $8,000 salary differential exists between the position of Chief Justice and the other six Justices on the Court.  Removing Justice Abrahamson from her current position as Chief would result in the immediate loss of this portion of her salary.  Moreover, a mid-term reduction in salary appears to be prohibited by Article IV of the Wisconsin Constitution. Read more »

Print Friendly



More on Boehner’s Invitation to Netanyahu

Posted by:
Category: Constitutional Interpretation, International Law & Diplomacy, Public
1 Comment »

As I mentioned in my previous post, House Speaker John Boehner recently invited Israeli Prime Minister Benjamin Netanyahu to address Congress on the subject of Iran’s nuclear program, and he did this without consulting the White House. Over the last few days, a number of commentators have argued that the invitation is unconstitutional because it interferes with the President’s authority over diplomatic relations. This morning I posted a response over at the blog Just Security; it’s available here.

Print Friendly



Supreme Court Roundup Part Three: Harris v. Quinn

Posted by:
Category: Constitutional Interpretation, Constitutional Law, First Amendment, Health Care, Labor & Employment Law, Public
Leave a Comment »

the american twins 2On October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the third and final blog post on the presentation.  Readers can find the first post here, and the second post here.  What follows are my prepared remarks on Harris v. Quinn, and also a brief conclusion regarding the three cases.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The case of Harris v. Quinn involved an Illinois law that made home health aides state employees under the Illinois Public Labor Relations Act.  As a result of this law, these workers became joint employees of both the private individual who receives the services of the home-health worker and the State of Illinois.  The Service Employees International Union (SEIU) represents home health aides under a contract with the State of Illinois and collects mandatory dues from both union and non-union workers, which are called “agency fees.”  Persons who have a negative view of organized labor object to agency fees because they compel people to pay money to an organization to which they do not belong.  Persons who have a positive view of organized labor support agency fees because they prevent non-union employees from “free riding,” which occurs when non-union employees receive the benefits of union-negotiated employment contracts without contributing to the cost of negotiating them.

Under existing precedent, a government employer who collects agency fees from non-union members does not violate their First Amendment rights because when the government acts as an employer it has a compelling interest in avoiding conflicting demands for wages and employment conditions from competing groups of employees.  Abood v. Detroit Board of Education (1977).  The plaintiffs in the Harris case wanted to use their lawsuit to overturn the Abood decision, thereby allowing any government employees who are not union members to work for the government without paying agency fees to a public employee union.  Read more »

Print Friendly



Supreme Court Roundup Part One: McCutcheon v. FEC

Posted by:
Category: Constitutional Interpretation, Constitutional Law, Election Law, First Amendment, Public, Speakers at Marquette, U.S. Supreme Court
Leave a Comment »

Boss_Tweed,_Thomas_NastOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the first of three blog posts on the presentation.  What follows are my prepared remarks on McCutcheon v. FEC.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

In McCutcheon v. FEC, the Supreme Court considered whether campaign finance laws imposing annual aggregate contribution limits violate the First Amendment of the Constitution.  A plurality of the Court answered “yes,” without reaching the issue of whether limits on contributions to individual candidates also violated the Constitution.  Justice Thomas concurred with the plurality opinion, but would have gone further and overruled the 1976 decision in Buckley v. Valeo, which upheld individual contribution limits.  Four Justices dissented.

The plurality opinion in McCutcheon, written by Justice Roberts, reasoned that legal limits on aggregate contributions violate the First Amendment unless the government has a compelling interest to regulate such spending.  But the only possible compelling interest available to the government is the avoidance of quid pro quo bribery, which aggregate contribution limits do nothing to prevent.

The reasoning of the plurality is not a surprise.  In one sense, this reasoning is unobjectionable on the grounds that it is simply a logical application of the rationale adopted by the Supreme Court in Citizens United v. FEC (2010), which struck down campaign finance laws prohibiting independent expenditures by corporations and unions.  The problem is that Citizens United was a sharp and unjustified break with prior precedent. Read more »

Print Friendly



You Knew Your New iPhone Was Cool, but Did You Know….?

Posted by:
Category: Computer Law, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Public
Leave a Comment »

apple-logo-redApple is marketing its newest smartphone operating system, iOS 8, as a bulwark of personal privacy. Apparently, not even Apple itself can bypass a customer’s passcode and extract data from an iPhone that runs the new operating system. This means that even in response to a court order, the company will be powerless to comply.  Competitors are likely to follow suit.

This is a development with profound implications for law enforcement, which views the ability to obtain such data with a warrant as crucial in its efforts to combat crime and terrorism.  Defenders of the new technology point out that law enforcement may be able to obtain the same data in different ways; for example, if the data is stored “in the cloud” or if the password can be deduced somehow.

Read more »

Print Friendly



7th Circuit Affirms District Court Ruling Invalidating Wisconsin’s Marriage Amendment

Posted by:
Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Public, Seventh Circuit, Western District of Wisconsin
Leave a Comment »

same sex hand holdingJudge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.

The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).

Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” (*6).

The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument. Read more »

Print Friendly



Hallows Lecture Examines Little Noted, but Pivotal Civil Rights Decision

Posted by:
Category: Civil Rights, Constitutional Interpretation, Legal History, Public, Race & Law, Speakers at Marquette
1 Comment »

“Remarkable but relatively obscure” – that’s how Judge Paul T. Watford of the United States Court of Appeals for the Ninth Circuit described the 1945 U.S. Supreme Court decision, Screws v. United States. In presenting Marquette Law School’s annual Hallows Lecture on March 4, Judge Watford aimed to lift the decision from some of its obscurity and increase awareness of “the birth of federal civil rights enforcement,” as the title of his lecture put it.

The case began with the vicious and fatal beating of Robert Hall, an African-American man, by M. Claude Screws, the sheriff of Baker County, Ga., and two of Screws’ deputies. Judge Watford said the circumstances of Hall’s death provide a window into how African Americans of that era had to live with the “ever-present reality” of unwarranted violence against them by white law enforcement officers. Even given the many witnesses to Hall’s death, Georgia authorities declined to prosecute Screws and his deputies. But, in what Watford described as an unusual development for that time, a federal indictment was issued against them for violating Hall’s civil rights.

Ultimately, a splintered Supreme Court did not do all that civil rights advocates would have wanted, but the justices upheld the application in situations such as this of 18 U.S.C. § 242, prohibiting violation of civil rights by someone acting under the color of law. The majority of justices rejected the argument that civil rights violations were a matter to be left to the states, although no single opinion commanded a majority.

“Had Screws come out the other way, and been decided against the federal government, federal civil rights enforcement would have been stifled,” Watford said. “Instead, it was given new life, and that helped change the course of history, particularly in the South, in the second half of the twentieth century.”  Read more »

Print Friendly