Marquette Students Study Comparative Law in Germany

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Category: Constitutional Law, International Law & Diplomacy, Marquette Law School, Public
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Giessen 2015This is week Two of the Summer Session in International and Comparative Law, taking place in Giessen, Germany.  Pictured to the left are my students in the class on Comparative Law.  They come from Mexico, Peru, Senegal, Brazil, Zimbabwe, Spain, Moldova, Vietnam, the Slovak Republic and, yes, even Wisconsin.  Along with my co-teacher, Thilo Marauhn from Justus Liebig University here in Germany, we have been comparing the constitutional systems of the United States and Germany, and also contrasting the quasi-constitutional structure of the European Union.  It may not look like it in the photo, but we are certainly having a great deal of fun.

Other classes this session include International Economic Law & Business Transactions, The Law of Armed Conflict, and International Intellectual Property Law.  The faculty come from the United States, Germany, Lithuania, and Great Britain.  The faculty are all experts in their fields and, judging from our dinner tonight, we all share an appreciation of German beer. Read more »

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

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

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The Problem with Justice Thomas’s Dignity Argument

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Category: Constitutional Law, Judges & Judicial Process, Public, U.S. Supreme Court
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Justice Thomas, in his fervent dissent to the Supreme Court’s decision to invalidate same-sex marriage bans, has some interesting things to say about the concept of dignity. His view of human dignity is that it is innate and therefore inalienable: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.”

The punchline, of course, is that the majority’s reasoning, which relies heavily on a Constitutional reading that sees dignity at the heart of liberty and the Due Process Clause, is flawed – gays and lesbians are not deprived of dignity (and therefore liberty) by their inability to marry, because “the government cannot bestow dignity, and it cannot take it away.” Essentially, Justice Thomas says, as long as the state leaves me alone, my liberty and dignity are intact.

Justice Thomas’s invocation of slavery and internment to illustrate his qualms about the dignity argument arguably undermines the moral force of his point. Moreover, it rests on a narrow and theoretical concept of dignity.   Read more »

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Rodriguez v. United States: Supreme Court Says No to Prolonged Traffic Stops

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Category: Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court
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Last week, the Supreme Court decided City of Los Angeles v. Patel, the fourth and final of its search-and-seizure cases this term. In Patel, the Court overturned a city ordinance requiring hotel operators to share information about their guests with the police.

Patel confirmed this as a good term for Fourth Amendment rights, joining Grady v. North Carolina (GPS tracking of sex offender counted as search for Fourth-Amendment purposes) and Rodriguez v. United States (police improperly extended traffic stop to conduct dog sniff of car). Less favorable, though, was Heien v. North Carolina (no suppression of evidence obtained after traffic stop that was based on officer’s reasonable mistake of law).

The remainder of this post will focus on Rodriguez, which strikes me as the most interesting of the Fourth-Amendment series. Broadly speaking, at issue was the extent to which the police can go on a fishing expedition when they pull over a driver for a traffic violation.   Read more »

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Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause

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By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial. Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature. A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered. Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.

Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children.   Read more »

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Legislative Diplomacy After Zivotofsky

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The Supreme Court’s decision in Zivotofsky v. Kerry held that Congress violated the separation of powers by enacting a statute that purported to compel the President to issue statements that contradict his policy of strict neutrality on the status of Jerusalem. In a recent post, I analyzed a disagreement between the majority and the dissent on the significance of foreign perceptions of U.S. law. I’ve now written a second post on the case, this time exploring Zivotofsky‘s implications for the constitutionality of diplomatic communications between Congress and foreign governments. It’s available over at Lawfare.

 

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The Role of Foreign Perceptions in Zivotofsky v. Kerry

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On Monday the Supreme Court issued a long-awaited and important decision in Zivotofsky v. Kerry. This was a case about the nature of the President’s power to recognize foreign borders, and it required the Court to address the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2002, which entitled U.S. citizens born in Jerusalem to have “Jerusalem, Israel” listed on their passports as the place of birth. While the statutory entitlement may seem rather mundane, it conflicted with the Executive Branch’s longstanding policy of strict neutrality on Jerusalem’s status by suggesting that the city is located within Israeli borders. Because the Executive policy dictated that passports list only “Jerusalem,” Presidents Bush and Obama refused to implement the statute. Thus the question: Who gets to decide whether the United States will recognize Jerusalem as Israeli territory–Congress or the President?

The Court sided with the President and declared the statute unconstitutional. I wrote a post addressing one of the interesting issues in the case over at Lawfare; it’s available here.

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The Chief’s Lawsuit

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Category: Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Public, Wisconsin Supreme Court
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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 »

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Court of Appeals Upholds Dismissal of Sing-Along Citation

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Category: Civil Rights, Constitutional Law, First Amendment, Public
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Woody_Guthrie_NYWTSToday the Wisconsin Court of Appeals upheld the dismissal of a citation issued to a “solidarity singer,” one of the participants in the ongoing State Capitol Sing-a-Long in which the participants sing songs protesting Governor Walker’s policies.  The Court of Appeals upheld the dismissal of the citation by the Circuit Court, agreeing with the lower court that the permitting policy instituted by the Walker Administration unconstitutionally infringes on the First Amendment rights of individuals and small groups to engage in protests in the Capitol Building.  The decision of the Court of Appeals can be read in its entirety here.  Today’s ruling is unsurprising.  I argued that an earlier version of the permitting policy was unconstitutional a little over three years ago, in a post on the Faculty Blog that can be read here.  Reading the flimsy legal arguments put forth by the State in defense of the policy before the Court of Appeals (and I do not use the word “flimsy” lightly), I remain baffled as to why the Walker Administration would spend so much time and money in pursuing a permitting policy that so obviously conflicts with established First Amendment precedent.  While the Walker Administration typically rushes to appeal contrary judicial rulings to the Wisconsin Supreme Court, confident of receiving a sympathetic hearing from that body, I suggest that they think long and hard before appealing today’s ruling.

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Some Historical Perspective on Netanyahu’s Address to Congress

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Today there’s some interesting news from the realm of foreign relations law: Israeli Prime Minister Benjamin Netanyahu will give an address to Congress next month on the topic of Iran’s nuclear program, presumably to encourage legislators to support a hardline stance and perhaps to undermine the President’s ongoing efforts to achieve a diplomatic solution. To me, the noteworthy part is not so much the address itself, but rather the process by which it was arranged: the White House had no role. In fact, the Administration didn’t even know about it until today. John Boehner says that he invited Netanyahu without consulting officials from the executive branch because “Congress can make [such a] decision on its own.” The President’s Press Secretary responded that it was a breach of protocol for Netanyahu to plan a visit without first contacting the White House.

A couple of quick points. First, addresses of this type have a long historical pedigree. Consider these facts from the Office of the Historian of the House of Representatives, which has a fun website on the subject: Read more »

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Compelled Diplomacy in Zivotofsky v. Kerry

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To the parties and lower courts, Zivotofsky v. Kerry has been a dispute primarily about the nature of the President’s power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II?

In a new essay in the NYU Journal of Law & Liberty, I discuss the possibility that Section 214(d) of the Foreign Relations Authorization Act of 2003 is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and recognition is beside the point. The essay is available here.

 

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President Obama’s Executive Orders are Constitutional

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Category: Constitutional Law, Immigration Law, President & Executive Branch, Public
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452px-Barack_Obama_basketball_at_Martha's_VineyardA “head fake” is a basketball move where the player holding the ball feints as if starting a jump shot, but never leaves his feet.  Done correctly, it causes the defender to jump off of their feet in anticipation of the shot, arms flailing helplessly.  Meanwhile, the shooter calmly resets and scores a basket while the defender is harmlessly suspended in the air.

Just over two weeks ago, the mid-term elections supposedly signaled the end of President Obama’s ability to drive the policy agenda in Washington.  Last Thursday night, the nation’s “Basketball Player in Chief” executed a brilliant head fake on immigration policy, disproving this conventional wisdom.  Hints that the President intended to “go big” and use his executive authority to conduct an overhaul of the Immigration and Nationality Act had generated anticipatory paroxysms of outrage by Republicans, who hit the airwaves with charges of constitutional violations and threats of impeachment.  However, the executive actions that the President actually announced last Thursday were more modest in scope than what Latino groups and reform advocates wanted, and far less provocative than congressional Republicans feared.

The executive actions on immigration fall well within the Executive Branch’s established authority to set priorities in the enforcement of Immigration Law and clearly within the constitutional power of the President.  Meanwhile, the President’s Republican critics have already committed themselves to a campaign of outrage and indignation, even though it is increasingly evident that they lack a legal basis to attack the President’s actions or a political strategy to undo them.  The President’s head fake is evident when the details of the Executive Orders are examined. Read more »

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