Constitutional Law – Page 22 – Marquette University Law School Faculty Blog

Compelled Diplomacy in Zivotofsky v. Kerry

Post author:Ryan Scoville
Post published:January 14, 2015
Post category:Constitutional Law International Law & Diplomacy Public

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.

President Obama’s Executive Orders are Constitutional

Post author:Edward A. Fallone
Post published:November 27, 2014
Post category:Constitutional Law Immigration Law President & Executive Branch Public

A “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.

Supreme Court Roundup Part Three: Harris v. Quinn

Post author:Edward A. Fallone
Post published:November 15, 2014
Post category:Constitutional Interpretation Constitutional Law First Amendment Health Care Labor & Employment Law Public

On 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.