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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Category: Constitutional Law, International Law & Diplomacy, Public
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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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Category: Constitutional Law, International Law & Diplomacy, Public
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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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Supreme Court Roundup Part Three: Harris v. Quinn

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Category: Constitutional Interpretation, Constitutional Law, First Amendment, Health Care, Labor & Employment Law, Public
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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 »

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Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

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Category: Business Regulation, Constitutional Law, Corporate Law, First Amendment, Health Care, Public, Religion & Law, U.S. Supreme Court
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the bosses of senateOn 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 sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  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 legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted. Read more »

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Supreme Court Roundup Part One: McCutcheon v. FEC

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Category: Constitutional Interpretation, Constitutional Law, Election Law, First Amendment, Public, Speakers at Marquette, U.S. Supreme Court
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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 »

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

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Category: Computer Law, Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Public
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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.

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Does the Legalization of Marijuana Violate International Law?

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Category: Constitutional Law, International Law & Diplomacy, Public
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The shift toward legalization of marijuana has gained a lot of momentum in the past few years. By a recent count, more than twenty states have enacted legislation that permits use of one form or another. Most allow only medical use, but Colorado and Washington also permit recreational consumption. For present purposes, I take no position on the policy merits of this development. I do, however, want to point out that the marijuana debate tends to overlook an important issue—namely, federal tolerance for legalization of the sort that has occurred in Colorado and Washington probably places the United States in material breach of international law.

The argument is pretty straightforward: The 1961 Single Convention on Narcotic Drugs provides that parties “shall take such legislative and administrative measures as may be necessary . . . to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of” cannabis, among other drugs. Having joined the treaty in 1967, the United States is bound to comply. But for the most part, the Obama Administration has chosen not to enforce federal drug laws against recreational consumption in Colorado and Washington, and state authorities in those jurisdictions obviously do not have state prohibitions to enforce. Thus, the United States no longer takes “administrative measures” that are necessary to limit use to medical and scientific purposes. A comparable analysis applies under the 1971 Convention on Psychotropic Substances and the 1988 Convention Against Traffic in Narcotic Drugs and Psychotropic Substances, both of which contain similar provisions and bind the United States as a party. Read more »

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

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Public, Seventh Circuit, Western District of Wisconsin
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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 »

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US Supreme Court Review: Bond v. United States

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US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

Continuing with this blog’s coverage of the recently concluded Supreme Court term, I’ll offer a few thoughts on the decision in Bond v. United States, which addressed a challenge to a statute that Congress passed in 1998 to implement the Chemical Weapons Convention (“CWC”). Most have heard about the underlying facts: After finding out that her husband was the father of her best friend’s soon-to-be-born child, Carol Anne Bond tried to poison the friend with 10-chloro-10H-phenoxarsine and potassium dichromate. This plan didn’t work, but the authorities found out about it and prosecuted Ms. Bond under 18 U.S.C. § 229(a) for possession and use of a “chemical weapon.” Bond then entered a conditional guilty plea that preserved her right to appeal and, after a lot of other litigation, made two arguments before the Supreme Court. First, she contended that Section 229(a) doesn’t apply because she didn’t use 10-chloro-10H-phenoxarsine and potassium dichromate as “chemical weapons” within the meaning of the statute. Second, she argued that the statute is invalid even if it applies because it exceeds the enumerated powers of Congress and intrudes upon powers that the Tenth Amendment reserves for the states. Read more »

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