Bond v. United States: SCOTUS Interprets Criminal Statute Narrowly to Preserve Federal-State Balance

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Category: Constitutional Law, Criminal Law & Process, Federalism, Public, U.S. Supreme Court
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In an opinion sure to be cited by many federal criminal defendants for years to come, the Supreme Court yesterday overturned the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act. Although few defendants are prosecuted under this statute, the Court’s decision in Bond is noteworthy for its approach to the interpretation of federal criminal statutes. The Court adopted a narrow interpretation of the Implementation Act in order to preserve what it called the “usual constitutional balance of federal and state power.” (12) This interpretive principle is not a new one, but the Court applied it in an unusually aggressive fashion in Bond. The opinion is sure to be a favorite of defendants who find themselves prosecuted in federal court for offenses traditionally and routinely handled in state courts.

The underlying facts in Bond were a mix of the mundane and the bizarre.   Read more »

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New “Marquette Lawyer” Magazine Offers Insights from Paul Clement

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Category: Education & Law, Federal Law & Legal System, Federalism, Health Care, Legal Practice, Marquette Law School, Public, Speakers at Marquette, U.S. Supreme Court
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Paul Clement has argued some 70 cases before the U.S. Supreme Court. He was solicitor general of the United States and now, in private practice, continues to present arguments in some of the most important cases of our time.

In the cover story in the new “Marquette Lawyer” magazine, Clement discusses some of the cases he’s been involved in, particularly the momentous Affordable Care Act decision of 2012 and several national security cases. He talks about what it is like to make an argument before the Court and especially what’s needed to prepare for an argument.

Clement’s thoughts were offered during his visit to Marquette Law School on March 4, 2013, when he delivered the annual E. Harold Hallows Lecture and held a special “On the Issues with Mike Gousha” event for law students. (Video of the lecture is available here and of the “On the Issues” here.)

Also in the new issue, an article describes the complex legacy of a class action lawsuit challenging how Milwaukee Public Schools deals with students with special education needs. Even as plaintiffs lost the case in court, they succeeded in influencing changes that they favored.

Professor Phoebe Williams is featured in a profile story in the magazine, and the success of the Law School’s faculty blog is marked with a compilation of pieces written by Professor Daniel D. Blinka; Mike Gousha, distinguished fellow in law and public policy; and State Public Defender Kelli S. Thompson, L’96 . Read more »

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(Marriage) Equality and the Popularity Paradox

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Category: Civil Rights, Constitutional Interpretation, Constitutional Law, Family Law, Federalism, Public
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=Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition. Read more »

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SCOTUS Strikes Down DOMA

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Category: Constitutional Interpretation, Constitutional Law, Family Law, Federalism, Public
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Just this morning, the United States Supreme Court released its opinion in United States v. Windsor, the case that challenged the constitutionality of the federal Defense of Marriage Act (DOMA).  The Court declared DOMA unconstitutional in a 5-4 vote.  More to follow.

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Does Federal Law Actually Preempt Relaxed State Marijuana Laws?

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Category: Congress & Congressional Power, Constitutional Law, Criminal Law & Process, Federalism, Public, Speakers at Marquette
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Federalism & MarijuanaThe 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 »

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Important Points Won Even as ACA Case Was Lost, Paul Clement Says

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Category: Congress & Congressional Power, Constitutional Interpretation, Federal Law & Legal System, Federalism, Public, Speakers at Marquette, U.S. Supreme Court
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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 »

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The Health Information Exchange Deadline

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Category: Congress & Congressional Power, Federal Law & Legal System, Federalism, Health Care, Public, Wisconsin Law & Legal System
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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 »

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Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

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Category: Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Federalism, Public
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In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.  One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.”  The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas.  Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970′s.  In that decade, guilty plea rates hovered between 77% and 82%.  After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009.  But this, apparently, is not a new phenomenon.  Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial.  That’s right, only nine trials in three years, or 1.5 criminal trials per judge per year.  (Eight of these trials, by the way, took less than one full day to try.)  The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%.  (See Ron Wright’s helpful data compilation here.)  So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, quite reminiscent of a modern“fast-track” plea-bargaining system.   Read more »

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The Criminal Jurisdiction of Indian Tribes

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Category: Criminal Law & Process, Federal Indian Law, Federal Law & Legal System, Federalism, Public
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This is the third in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights, while the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection. This post will explore the criminal jurisdiction of tribes, with the expectation that one or more future posts will similarly explore the criminal jurisdiction of the federal and state governments in relation to Indians or conduct on Indian lands.

Sovereignty, as conceptualized in the Western legal-political tradition, has customarily included the power to enact and enforce a criminal code against persons who, within the sovereign’s territory or against its citizenry, commit conduct injurious to health, safety, welfare, and morals. This is a theoretical standard, however, and today across the globe as well as in the United States—and not just with regard to Indian tribes—one can observe forms of sovereignty that include degrees of diminished (or less-than-plenary) criminal jurisdiction.

The most obvious domestic example involves the respective authority of the federal and state governments. Read more »

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Cockfighting, Congress, and Interstate Commerce

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Category: Congress & Congressional Power, Constitutional Interpretation, Criminal Law & Process, Federalism, Public
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Some convicted defendants in South Carolina are crying foul at the application of the federal Animal Welfare Act to criminally punish the promotion of cockfighting. The statute is said to be based in the power of Congress, found in article I, section 8 of the Constitution, to “regulate commerce . . . among the several States . . . .” Federal prosecutors successfully applied the statute at the trial level, and now the case is before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit.

The defendants (now appellants) argue that their conduct is not sufficiently related to interstate commerce, and is too local in character, to justify Congress’ exercise of its interstate commerce authority. Their contention in this regard is not about whether the promotion of cockfighting may be banned, but rather whether such conduct may be banned by Congress, which can only enact statutes that further its constitutionally enumerated powers. (Such conduct is largely prohibited, albeit with a lesser criminal sanction, by South Carolina law.)  Their contention, moreover, appears not to be that the Animal Welfare Act as a whole is unconstitutional, but only that its application to their particular conduct exceeds Congress’s interstate commerce power.

The appellants’ arguments have a familiar ring to them. Read more »

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John Paul Stevens’ Restraint

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Category: Constitutional Interpretation, Federalism, Judges & Judicial Process, Legal History, Public, U.S. Supreme Court
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After he retired in 2010, John Paul Stevens published Five Chiefs: A Supreme Court Memoir.  After a brief description of the first twelve Chief Justices of the United States Supreme Court, from John Jay through Harlan Fiske Stone, he describes in more detail the last five with whom he was professionally acquainted.  Stevens clerked for Wiley Rutledge, after earning the highest GPA in the history of Northwestern Law School, during the 1947 – 48 Term when Fred Vinson was Chief Justice.  Stevens was in private practice in Chicago, sometimes teaching antitrust law at the University of Chicago, when Earl Warren presided over the Court.  It was during this time, however, that he argued his only case before the Court.  In Five Chiefs, he notes that the most memorable aspect of his experience as an advocate before the Court was the sheer proximity of the Justices.  Though the distance between the lawyer and the bench is over six feet, Stevens felt sure that “Chief Justice Warren could have shaken my hand had he wished.”

Details like this provide an inside glimpse of the Court.  Early in his account, Stevens describes how the prohibition against playing basketball in the gym directly above the courtroom occurred during Vinson’s tenure: Byron White, one of Vinson’s first clerks and a former All-American, was practicing layups during oral argument.  Stevens’ anecdotes are always respectful of their subjects and strike one as rather tame, at least until one realizes that civility, the ability to “disagree without being disagreeable,” is of the utmost importance to him. Read more »

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Severability and the Erie Doctrine

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Category: Federalism, Public, U.S. Supreme Court
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“Severability” doctrine holds that where a statute is partially unconstitutional, a reviewing court can excise the unconstitutional part rather than declare the entire statute invalid, if consistent with legislative intent. The doctrine figures centrally in a broad array of constitutional litigation, including ongoing litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. And the doctrine is powerful because the viability of large statutory schemes can hinge entirely on whether an unconstitutional component is severable.

But while important, severability is in many ways perplexing and underexplored. No one has come up with a fully satisfying test for determining when severance is appropriate. And no one, as far as I can tell, has critically examined choice-of-law rules pertaining to the doctrine’s application. Read more »

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