Marquette University Law School Faculty Blog

The Cato Institute’s Ilya Shapiro recently spoke at the Law School concerning the status of relaxed state marijuana laws in light of the federal Controlled Substances Act’s continued prohibition of activities that these state laws now allow. This is a timely question with, it turns out, a less-than-certain answer. More precisely, it demands an answer that is more nuanced, and less categorical, than one might initially be inclined to give.

One’s initial answer is likely that these state laws are preempted—that is, rendered void and unenforceable—because of the federal statute. It is conventional constitutional doctrine, after all, that the U.S. Constitution’s Supremacy Clause makes valid federal law supreme over conflicting state law. Moreover, because the U.S. Supreme Court in Gonzales v. Raich (2005) deemed the federal marijuana prohibition to be a valid exercise of Congress’ commerce power, the specific question of whether state marijuana laws are vulnerable to preemption seems already to have been answered.

Mr. Shapiro makes an important observation, however. Read more »

Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.

Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.

“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”

The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.” Read more »

In 1776, as the founders were meeting to form the new government for the nation that would become the United States of America, Abigail Adams wrote to her husband John Adams and asked him “to remember the ladies” while drafting the governing documents.  She continued,

[B]e more generous and favorable to them than your ancestors [have been].  Do not put such unlimited power into the hands of husbands. . . . [I]f particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.

Quoted in Susan Gluck Mezey, Elusive Equality:  Women’s Rights, Public Policy, and the Law 5 (2011) (internal citations omitted). 

John Adams responded, “I cannot but laugh . . . .” Id. To Mr. Adams, this was the first he’d heard of women’s possible discontent with the status quo.  “[Y]our letter was the first intimation that another tribe, more numerous and powerful than all the rest were grown discontented.” Id. For whatever “power” that Mr. Adams suggested that women had, it clearly wasn’t enough, for the new Declaration of Independence and Constitution failed to give any express (or even implied) rights to women. 

Mrs. Adams responded to her husband, “I cannot say that I think you are very generous to the ladies; for whilst you are proclaiming peace and good-will to men, emancipating all nations, you insist on retaining an absolute power over wives.” Id. Read more »

I recently had the opportunity to read Professor Mazzie’s post on the lifting of the ban on women serving in combat.  As a military officer with over 20 years of service to include a recent overseas deployment to a combat zone, I thought that I would offer my personal observations and opinions related to this matter.

First, while I personally have not served on the “front lines,” I generally agree with the lifting of the ban.  Since September 11, 2001, women have served alongside men in Iraq, Afghanistan, and many other places around the world.  The majority of women have served with great distinction and all of them who have served have made great sacrifices (let us also not forget about the sacrifices that their families have made).  As Professor Mazzie notes, since September 11, 2001, 152 women have made the ultimate sacrifice for the greater good of this country. 

As a person who enlisted as a Private in 1992, I have seen how the military has grown, matured, and become more professional over the years, especially since the rapid deployment of service members over the last 11 years.  Professor Mazzie entitles her post “Ban on Women in Combat Lifted: Is the Military Ready?”  For the reasons cited above, I do believe that the military is ready.  If the military is not ready at this point in time, after 11 plus years of overseas operations in which women have played a key role in the success of these operations, I personally do not believe that the military will ever be ready.  To put it simply, I believe that the timing is right and the lifting of the ban is the right thing to do. 

All that being said, I do believe that some of the arguments made by opponents of the lifting of the ban have some validity.  Read more »

This week, Defense Secretary Leon Panetta announced that the military’s ban on women in combat will be lifted.  According to the Department of Defense, 14.6% of the nation’s military is made up of women; according to The N.Y. Times and Huffington Post, more than 280,000 of them were deployed during the Iraq and Afghanistan wars.  While those women were banned from combat, they often saw combat action nonetheless, as they were attached to battalions in positions that sometimes came under fire.  Of the more than 6,600 troops killed in Iraq and Afghanistan, 152 of them have been women. 

There may still be some combat positions that women will not be allowed to fill; however, the presumption seems to be that all combat positions are open to women unless a particular branch of the military requests an exception and presumably has the burden to prove why women should not be so allowed.  Previous opposition to women in combat often revolved around concerns about women’s strength and whether their presence might hurt unit cohesion.  Clearly, not all women will be physically capable of certain assignments. But then again, neither are all men.  At least now, those women who are capable and who want to fill those assignments will have the opportunity to do so.  The argument about unit cohesion is also one that had long been made against allowing gays—and African Americans before them—to serve in the military.  That argument, too, has been debunked, and since 2012, LBGT soldiers can serve openly.    

Allowing women in combat opens up hundreds of thousands of new jobs for women and allows women the opportunity to climb the ranks in the military.  Without combat leadership experience, military advancement, regardless of the soldier’s gender, is limited.  In the past, this limitation disproportionately stifled women’s military careers.  No longer. As The New York Times reported, General Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, stated in a letter that the lifting of the ban ensures “that women as well as men ‘are given the opportunity to succeed.’”

Despite the public support for allowing women in combat, there are those who oppose the idea, with one retired army general calling it “a vast social experiment in which hundreds of thousands of men and women will be the guinea pigs.” The decision, he maintains, is ideologically based and not militarily based. Read more »

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

On December 14, 1819, Alabama was admitted to the Union as the twenty-second state. The admission itself was not especially remarkable. Various parts of present-day Alabama had been settled by the French (and later the British) since the early 1700s, and explored by the Spanish as early as the 1540s. The territory to the west, moreover, had already been admitted as the states of Mississippi (1817) and Louisiana (1814). Not least important, Alabama’s soil and climate were amenable to cotton production, which was accelerating due to technological innovation and increased demand, such that the years preceding Alabama’s statehood had seen substantial growth in the region’s population.

What made Alabama’s admission significant, politically and constitutionally, was the situation it then posed for Congress regarding the admission of subsequent states, particularly west of the Mississippi River. Specifically, the nation was now evenly divided between free and slave states, having eleven of each. Given a federal Senate based on equal voting for every state regardless of population, this resulting parity of free and slave states made the admission of any additional state an opportunity either to expand or to restrict slavery. The South especially perceived the need to maintain parity as its influence in the House of Representatives declined relative to the North, which was experiencing (and would continue to experience) more immigration as well as greater industrial and economic growth.

This dynamic, in turn, set the stage for a new era of anti- and pro-slavery compromises and eventually—as these compromises less and less alleviated sectional tensions—a rather bloody civil war. Read more »

Friday’s deadline, November 16, calls for each state, including Wisconsin, to give the federal government a “blueprint” for a Health Information Exchange.  State exchanges compare the benefits and costs of insurance policies and post the results online so people and employers can choose which are the best values for them.  They will also make electronic patient records accessible for treatment and research for the public health.   As I noted in my election-eve blog post, exchanges (also called HIEs) are central to health care reform by making better consumer choices possible.

State blueprints would resolve such choices as whether the exchange will be a private non-profit company or a state agency, and what consent and protections are in place for patient privacy.  Overall, a state can choose whether its exchange will be run by the state, in a partnership with the federal government, or by the federal government.  If a state doesn’t provide a blueprint, its exchange will be formed and run according the rules and models in federal regulations that will be issued soon.  Read more »

Suppose President Obama wins all of the electoral votes from (1) all of the Northeastern states except New Hampshire; (2) Maryland, Delaware, the District of Columbia, and Virginia; (3) all of the states that border on the Pacific Ocean except Alaska; and (4) New Mexico, Colorado, Minnesota, Illinois, and Michigan. Assume also that Governor Romney wins all of the electoral votes in the remaining 30 states. The results? A 269 to 269 tie, in terms of electoral votes.

What would happen then?

If, when the electors vote on December 17, each elector casts his or her ballot for the candidate each supported, the failure of any candidate to achieve a majority of the votes would be certified on January 6 by the President of the United States Senate, who is, of course, Vice President Joe Biden.

Under the terms of the 20th Amendment to the Constitution, the newly elected House of Representatives, which took office on January 3, will then vote to elect a President. Under the 12th Amendment, Congress is required to choose from the three candidates with the highest total of electoral votes from among those receiving electoral votes. Since under this scenario, only Romney and Obama receive electoral votes, the House would have to choose either Romney or Obama.

Under the terms of the Amendment, each state has a single vote, which is determined by how a majority of that state’s Representatives vote. This means that both Alaska and California would have the same one vote, and 26 votes would be necessary to elect a president.

Read more »

Last week, Ed Fallone posted his prepared remarks at our debate on the constitutionality of the individual mandate in the health care law. Inspired by his example, I have – after a fashion – cleaned up my notes for last week’s debate. This is how I see it.

When Nancy Pelosi was asked about the potential for a constitutional challenge to the health care law, her response was “you’ve got to be kidding.” The substance of her response – “look, we used the commerce power and that permits us to do almost whatever we want” – reflected large patches of conventional wisdom.

Many lawyers (particularly those trained before the Rehnquist Court began to push back against an unlimited commerce power) and, in particular, Progressive legal academics thought that this dragon had been slain long ago. They assumed that the idea that there might be structural limits on the federal constitution had been relegated to the status of flat earth creationism and alchemy.

Read more »

This afternoon, I participated in a debate with Rick Esenberg at the Marquette University Law School.  The debate was co-sponsored by the American Constitution Society and the Federalist Society.  I was asked to defend the constitutionality of the individual mandate imposed by the Affordable Care Act.  What follows are my prepared remarks.

Historians tell us that the connection between access to health insurance and employment was an accident. During World War II, wage and price controls prevented employers from increasing cash compensation for their workers. Employers wishing to recruit workers began to offer subsidized health insurance benefits as a way of avoiding this freeze on wages.

This is not a gift to workers from employers. We all pay for our health insurance with our labor. In return for our labor, we receive a combination of cash, employer provided benefits and non-cash prerequisites. The amount that employers pay towards our health insurance premiums is part of our income, which is why we are taxed on our employer-provided insurance above a certain level. The government encourages employers to offer health insurance benefits by allowing the employer to deduct these expenses as a business expense. About 60% of us receive health insurance through our employer.

The elderly and the disabled are not physically capable of working. Employer-based health insurance does not work for them. They receive their health insurance through Medicare. Participants pay certain deductibles and co-payments, but the bulk of the cost is imposed on the rest of us in the form of a payroll tax and the government then pays medical providers.

So our health insurance system has become tied to employment. As the costs of health care rise, it is increasingly difficult for middle and lower income Americans to afford health insurance unless they get it through an employer. This is because, as I mentioned, an employer will partially subsidize the cost of the premium as a component of total compensation. In addition, an employer can offer access to a plan that includes many other workers, thus broadening the risk pool and lowering the overall premium for each worker. An individual who seeks to purchase health insurance on their own gets neither of these two advantages. As health care costs continue to rise (an annual increase of about 8% in recent years), this cost differential becomes more significant. Read more »

Two major policy differences between Tammy Baldwin, the only major Democratic candidate for the open US Senate seat, and any of the Republican candidates were clear when Baldwin sat down with Mike Gousha in an “On the Issues” session at Eckstein Hall this week. Both issues are almost certain to be in the spotlight when the race to succeed Democrat Herb Kohl heats up in several months. The two:

Health insurance. Baldwin, who represents south central Wisconsin, including Dane County, in the House of Representatives, supports the Affordable Care Act, while her opponents all want to see the law they call “Obamacare” repealed or overturned by the US Supreme Court. Baldwin told Gousha, the Law School’s distinguished fellow in law and public policy, “It’s not perfect, but it’s a step in the right direction that will lead to far greater coverage and, I hope, drive incredible improvements in quality, too.” She said that the plan for overhauling Medicare proposed by Republican Rep. Paul Ryan would be “a catastrophe” because it would eliminate guaranteed coverage for senior citizens. She said that as a child who was raised by her maternal grandparents and who had a major childhood illness that was not covered by their insurance, she learned early on the value of programs such as Medicare, Medicaid, and Social Security.

Tax reform, including the “Buffet Rule.” Baldwin said she was one of the first members of Congress to propose passage of what has come to be known as the “Buffet Rule” which would require people who make more than $1 million a year to be taxed at at least a 30% rate. The term comes from statements from billionaire Warren Buffet that he pays a smaller percentage of his income in taxes than his secretary does. The proposal has become a hot issue, with President Barack Obama campaigning for it in recent days. Baldwin said she wanted members of Congress to take a straight up or down vote on whether they support the idea.

Asked by Gousha how she responds to those who say she is one of the most liberal members of Congress, Baldwin said she would describe herself as a fighter who is not afraid to take on big, powerful interests. She said she is an advocate for the middle class and for those with lower income.

As for how to cut the deficit, she said she advocated steps such as ending the American military involvement in Afghanistan, which would save large amounts of money, as well as tax reform that goes beyond the Buffet Rule proposal.

Baldwin appears to be on her way to an effectively uncontested path to getting on the November ballot. On the Republican side, four candidates are aiming to be on the a primary ballot in August. They are former Gov. Tommy G. Thompson, former Rep. Mark Neumann, State Assembly Speaker Jeff Fitzgerald, and businessman Eric Hovde.

Baldwin said she knows Thompson the best of the four – she served in the Legislature while he was governor –and worked well with him in those years. But, she said, she sees him now moving to the right in his positions. “The gulf is getting wider” between her and candidates such as Thompson, she said.

In 2010, incumbent Democratic Sen. Russ Feingold was defeated by Republican Ron Johnson. Asked by Gousha what that said about her chances in 2012, Baldwin said she thinks the electorate in 2012 is going to be very different than the electorate two years ago.

Video of the one-hour session may be viewed by clicking here.