Marquette University Law School Faculty Blog

Setser v. United States: Bureaucratic Sentencing on Trial in the Supreme Court, Again

Post author:Michael M. O'Hear
Post published:May 5, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public U.S. Supreme Court

While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth. The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court. (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions. Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!) The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences. The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge. Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed. In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility. The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.

New Law School Poll Results Show Barrett Lead Over Falk Growing

Post author:Alan J. Borsuk
Post published:May 2, 2012
Post category:Marquette Law School Political Processes & Rhetoric Public

With the Democratic primary for governor in its last week, new results for the Marquette Law School Poll, released Wednesday, show Milwaukee Mayor Tom Barrett opening a larger lead over his main opponent, former Dane County Executive Kathleen Falk, than was the case in March, before Barrett formally entered the race.

But there are still a lot of undecided likely-voters in the election set for May 8 – about 19% — which needs to be kept in mind, Professor Charles Franklin, director of the poll, said in an “On the Issues with Mike Gousha” session at Eckstein Hall.

Head-to-head poll results for a possible final election for governor on June 5 between Barrett and Republican Gov. Scott Walker indicate a race that is effectively a tie at this point. Results for both all registered voters and for those who say they are likely to vote put one percentage point between Barrett and Walker (in one case, with Barrett ahead, in one case with Walker ahead, and, in both cases, with differences that are clearly within the margin of error).

The poll results found Democratic President Barack Obama holding a nine point lead over Republican presidential candidate Mitt Romney, an increase from the March results. But Franklin said Wisconsin is shaping up as a state that will be in play in the fall presidential campaign.

Full results for the poll, including video of the session at which the results were released and Powerpoint slides of key results, can be found by clicking here.

ObamaCare Is Still Constitutional

Post author:Edward A. Fallone
Post published:May 1, 2012
Post category:Business Regulation Constitutional Interpretation Constitutional Law Health Care Public U.S. Supreme Court

Today I particpated in another debate over the constitutionality of the Affordable Care Act’s individual mandate. At the invitation of the Milwaukee Chapters of the Federalist Society and the American Constitution Society, I debated Robert Levy of the Cato Institute over luncheon at the Milwaukee Athletic Club. My thanks to our hosts, to Mr. Levy, and to the audience. Below are my prepared remarks. My previous post on the consitutionality of the individual mandate can be viewed here.

In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army. He did not use his toast to offer a tribute to individual liberty. Nor did he sing the praises of limited government. Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

We must never forget that our Constitution is a document that was intended to create competent powers for Congress for general purposes.

Much of what Mr. Levy cites in oppostion to the individual mandate is based upon abstract principles. However, when we interpret the Constitution, we do not begin with abstract theories of political philosophy, and then attempt to shoehorn those theories into the text.

Instead, when we interpret the Constitution, we begin by looking to the text itself.

The power to “regulate,” which is the power delegated to Congress under the Commerce Clause, is the power to prescribe the rules by which commerce is governed. The word “regulate” means “to direct” or “to command.” Therefore, the plain meaning of the word “regulate” in the text includes a grant to Congress of the power to require action.