Articles Posted in Constitutional Law

The Constitutional Politics of Recess Appointments

Updated:

Justia columnist and Cornell law professor Michael Dorf comments on the constitutional law regarding recess appointments—that is, appointments made by the president when Congress is not in session. The topic is timely due to the current controversy over President Obama's recent grant of two recess appointments—for the positions of the head of the Consumer Financial Protection Bureau (CFPB), and the head of the National Labor Relations Board (NLRB). The President and Senate Republicans differ sharply as to whether Congress was, in fact, in recess when the appointments were made—and thus, as to whether the two appointments were valid. Dorf contends that each side makes a plausible case for its own position on this issue, and argues, more generally, that recess-appointment controversies cannot truly be understood without attention to the substantive merits of the appointment that is at issue in a given case.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court Embraces a Narrow Ministerial Exception to Federal Anti-Discrimination Laws

Updated:

Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s decision this week in a case that pitted First Amendment religious freedom rights against the rights set forth in federal anti-discrimination law. In the case, a woman who worked for a church as a teacher was fired after taking a medical leave, and sought to invoke her rights under the Americans with Disabilities Act (ADA). But because she was a “called” teacher, with some religious responsibilities, the church argued that her firing was within its discretion, under the First Amendment’s religion clauses. The Supreme Court ultimately agreed, but as Hamilton explains, the Court issued a narrow decision that still leaves a host of related questions unanswered. Hamilton covers the “parade of horribles” that was raised, but that the Court declined to address in its decision. She also identifies the decision’s bottom line: Courts cannot constitutionally establish selection criteria for clergy.

Is It a First Amendment Violation When A Prison Limits Inmates’ Ability to Solicit Pen-Pals? An Eleventh Circuit Decision Wrongly Says No

Updated:

Justia columnist and attorney Julie Hilden comments on a recent decision from the U.S. Court of Appeals for the Eleventh Circuit, rejecting a First Amendment claim by the owner of two pen-pal services, which seek to circulate lists of inmates to persons interested in becoming their pen pals, and vice-versa; and of a website on which inmates may solicit pen-pals via advertisements. The case arose when the Florida Department of Corrections (FDOC) banned inmates from soliciting pen-pals, except through a process of one-to-one matching. Hilden argues that, even under the lax First Amendment test that applies to prison restrictions—under which only a rational relationship to penological purposes is required, for a regulation to be upheld—the prison’s rules still do not hold water. She contends that, without any specific evidence of problems within FDOC relating to inmate pen-pal-solicitation fraud, the Eleventh Circuit should—like the Ninth Circuit before it—have rejected the rule for lacking a proper evidentiary basis.

What Will the Right to Keep and Bear Arms Mean in the Coming Years? Part One in a Two-Part Series on the Ways in Which Lower Courts and the Supreme Court Will Need to Flesh Out Second Amendment Doctrine

Updated:

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, begin their series of columns on the Second Amendment and how courts have interpreted it, with a special focus on the Supreme Court’s decision in District of Columbia v. Heller. One of their key points is that Second Amendment doctrine needs to be developed and particularized in a number of ways, but that the Supreme Court has not given lower courts much guidance in this area of constitutional law. Though the Court has twice addressed the Second Amendment in recent years, it has left many questions open. With Election 2012 coming up, moreover, Amar and Brownstein point out that Second Amendment doctrine may become a political, as well as a constitutional-law, issue. In Heller, they explain, the Supreme Court made clear that there is an individual constitutional right to keep and bear arms, at least under some circumstances, but it is quite unclear where the Supreme Court and lower courts will go from there. Describing Second Amendment doctrine as a work in progress, Amar and Brownstein provide guidance on some of the questions that are likely to arise in the future.

The NDAA Explained: Part Two in a Two-Part Series of Columns on the National Defense Authorization Act

Updated:

In the second of a two-part series of columns on the highly controversial NDAA (National Defense Authorization Act), Justia columnist and Hunter College Human Rights Program Director Joanne Mariner continues to explain and comment upon on the bill, which is now the law. Mariner explains President Obama’s reasons for signing the bill, despite what he called “serious reservations” about its provisions that regulate the detention, interrogation and prosecution of suspected terrorists; and what his signing statement, accompanying the bill, said. Mariner notes that at this point, Obama is responsible for three key steps in America’s entrenchment of indefinite detention without trial: (1) justifying indefinite detention in litigation opposing the release of detainees held at Guantanamo; (2) issuing an executive order on indefinite detention; and (3) signing the NDAA. Mariner chronicles the road that took America to the passage of the NDAA, detailing the contributions of the Bush and Obama Administrations. In addition, she considers the most controversial aspect of the NDAA: its supposed allowance of the indefinite detention even of American citizens. Finally, Mariner notes that any fair reading of the NDAA ought to include a set of basic points, which she explains; and calls for a repeal of the NDAA’s detention provisions, as well as for the closure of Guantanamo.

Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock

Updated:

Justia columnist and Cornell law professor Michael C. Dorf takes strong issue with presidential candidate Newt Gingrich’s comments regarding judicial supremacy. In particular, Dorf explains, Gingrich has suggested that federal judges could be summoned—even by force—to explain their decisions before Congress, and that Supreme Court Justices and lower federal court judges with whose opinions Gingrich disagrees ought to be impeached. Dorf explains that, as Gingrich states, there have indeed been times in American history when judicial supremacy—which holds that all other government actors must act as if bound by the rulings of the Supreme Court—has been controversial. However, Dorf contends, Gingrich—in suggesting that we revert to those times—fails to appreciate how and why the courts’ role has evolved over the course of American history up to the present, and, worse, puts forth a dangerous proposition.

Should Bloggers Be Deemed Journalists, With the Power to Trigger the Supreme Court’s Favorable Rules Regarding Damages, Invoke Retraction Statutes, and Protect Confidential Sources? A Federal District Judge Offers Some Answers

Updated:

Justia columnist and attorney Julie Hilden comments on a Portland, Oregon-based federal district judge’s ruling in a case where a key question was when—if ever—a blogger can count as a journalist. The judge, addressing a defamation suit that was brought against the blogger, declined to allow her to invoke two Oregon laws that were meant to protect journalists by (1) requiring potential defamation plaintiffs to give journalists who are potential defamation defendants a chance to correct or retract the allegedly defamatory statements, if the plaintiffs want to recover their full damages; and (2) allowing journalists to protect their confidential sources by keeping them anonymous. In addition, the judge—moving on from Oregon-law issues to federal-law issues—refused to grant bloggers the right to invoke favorable U.S. Supreme Court case law regarding damages unless the bloggers qualified as journalists under the judge’s multi-factor test. Hilden takes issue with both of the judge’s Oregon law rulings, and, to some extent, also with his proposed multi-factor test as to who counts as a journalist.

The Case of the Alleged Twitter Stalker: A Federal Judge Dismisses An Indictment on First Amendment Grounds

Updated:

Justia columnist and attorney Julie Hilden comments on an interesting decision, issued this month by a federal judge from the U.S. District Court for the District of Maryland, regarding an indictment alleging the violation of a federal anti-harassment statute. Hilden first provides the factual background of the case—in which federal prosecutors alleged that a well-known Buddhist religious leader was being harassed, in violation of a federal stalking statute that is an amended version of part of the Violence Against Women Act (VAWA). She then discusses some of the key issues the case raises, such as whether blog posts or tweets can count as harassment in violation of the statute, even if it is the alleged victim who opts to view the posts or tweets, rather than merely receiving them. With the Electronic Frontier Foundation (EFF) as an amicus, and the federal government seeking to defend a statute that is meant to protect women from harm, Hilden predicts that we have not heard the last of this dispute. She also notes that, in the age of the search engine, the line between seeking out material and coming across it has been blurred substantially, and in turn, the definition of harassment may also be blurring.

The NDAA Explained: Part One in a Two-Part Series of Columns on the National Defense Authorization Act

Updated:

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner explains and comments on the highly controversial National Defense Authorization Act (NDAA), which has passed the House and Senate and is now awaiting President Obama’s signature. As Mariner notes, the NDAA’s provisions on indefinite detention earlier caused President Obama to threaten to veto the bill, but now President Obama appears poised to sign the bill’s current version—based on his claim that it affords the president substantial discretion on how the law will be implemented. But, Mariner points out, numerous human rights groups, civil libertarians, and Members of Congress still find the bill extremely objectionable in this current version. In this two-part series of columns, Mariner provides background on the recent history that is relevant to the bill; describes what the often-mischaracterized provisions of the bill actually say, and whom they affect; and focuses, especially, on the sections that have caused human rights groups the greatest concern.

A Health Care Law That Everyone in Congress Can Agree Upon

Updated:

Justia columnist and Cornell law professor Michael C. Dorf, and Justia guest columnist and Duke law and political science professor Neil S. Siegel comment on an interesting but less often discussed aspect of the controversial 2010 federal health care law. As Dorf and Siegel explain, before the Supreme Court reaches the merits of the case involving the health care law, it must first consider the federal Anti-Injunction Act, which became law in 1867. Dorf and Siegel note that the Anti-Injunction Act requires taxpayers who object to the federal government’s assessment or collection of a tax to first pay up, and only then sue for a refund. With respect to the federal health care law, Dorf and Siegel explain, that would delay even the very beginning of federal litigation until 2015. Yet both the law's fans and its detractors want a decision from the Supreme Court much earlier than that. Some would opt to simply ignore the Anti-Injunction Act, but as Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit commented, “There is no ‘early-bird special’ exception to the Anti-Injunction Act.” Fortunately, Dorf and Siegel offer an ingenious solution to this dilemma that combines a reasonable interpretation of the Anti-Injunction Act with the passage of a new federal stature.

The U.S. Supreme Court Takes Up The Eighth Amendment and Juvenile Killers: Is Life Without Parole Too Severe?

Updated:

Justia columnist and Cornell law professor Sherry Colb comments on two criminal law cases in which the U.S. Supreme Court has granted review. As Colb explains, the two cases together raise the following question: Does the Eighth Amendment’s cruel and unusual punishments ban prohibit mandatory sentences of life imprisonment without the possibility of parole (LWOP) for homicide offenses committed by fourteen-year-olds? In one case, the fourteen-year-old had suffered years of abuse and neglect, as well as severe poverty. In the other case, the fourteen-year-old apparently learned only on the way to a planned robbery that one of his accomplices was carrying a gun, and it was the accomplice who committed murder during the robbery, not the fourteen-year-old. (The fourteen-year-old was thus only charged with murder under the “felony murder” doctrine, based on his participation in a robbery that led to murder.) Colb explains that, in these two cases, the Court will need to consider the relationships among three relevant factors: (1) the capacity of an offender to behave morally; (2) the wrongfulness of the offender’s behavior; and (3) the harmful consequences of the offender’s actions. She describes the relevant prior Supreme Court precedents regarding juvenile offenders and other criminal law topics, and raises intriguing questions such as whether youth itself should be a mitigating factor to be taken into account in sentencing, in light of young teens’ demonstrably poor impulse control and susceptibility to pressure from others. Colb also covers the sentencing concepts of proportionality and discretion, and explains how they relate to these two cases. In addition, she describes—and, to some extent, challenges—the Supreme Court's “Death is different” jurisprudence, which singles out the death penalty for special notice despite the tremendous severity of an LWOP sentence, and the failure of an LWOP sentence to leave the offender hope for the future.

An Illinois Court Weighs in on the Protection of Anonymous Internet Message Board Speech

Updated:

When you post an anonymous message on an Internet message board, how anonymous is it, really? Justia columnist and attorney Julie Hilden comments on a recent Illinois state court appellate decision regarding the First Amendment right to speak anonymously. The dispute at issue arose from a number of anonymous comments posted on a newspaper website's message board, and relating in part to a local election. The target of the comments sued for defamation (via his parent, as he was a minor). However, the Illinois court—after clarifying Illinois law pertaining to defamation cases involving an anonymous defendant—found that the statements at issue were not necessarily defamatory, but rather could, and should, be subject to an innocent interpretation. Hilden argues that while the court’s invocation of the innocent-construction rule here was dubious, the court was right to protect the anonymity of the message-board-poster defendant.

The California Supreme Court Rules that Prop. 8’s Proponents Have Standing to Defend the Initiative: What Does That Mean in the Ninth Circuit and U.S. Supreme Court?

Updated:

Justia columnist Vikram David Amar, and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the latest ruling in the litigation regarding Proposition 8, the California anti-gay-marriage initiative. Amar and Brownstein begin by noting that this ruling holds that the initiative’s proponents have the authority to defend the initiative in California state court, now that elected representatives have declined to do so. They then summarize all the Prop. 8 litigation that has occurred thus far. In addition, they explain what may happen if this case reaches the U.S Supreme Court based on the standing issue it presents (that is, the issue of whether the parties at issue are legally able to bring this case). They cover a reason why the Supreme Court might decline to find federal standing: until now, initiative proponents have not been elected or specifically deputized by the people. Finally, they briefly discuss some other troubling questions regarding the Prop. 8 litigation that the California ruling did not address.

Why the U.S. Court of Appeals for the Third Circuit Declined to Change Its Mind About “Nipplegate,” Despite a Recent Opportunity From the U.S. Supreme Court to Do So

Updated:

Justia columnist and attorney Julie Hilden explains why a case regarding the famous 2004 “Nipplegate” incident—involving Janet Jackson, Justin Timberlake, and the Superbowl—has returned to the U.S. Court of Appeals for the Third Circuit: An FCC crackdown led to a whopping fine for CBS, which is still being litigated. The Supreme Court recently sent the case back for reconsideration, in light of the High Court’s recent, related decision in FCC v. Fox Television Stations, Inc. But upon reconsideration, two judges on the three-judge Third Circuit panel reached essentially the same decision that they had reached on the first go-round, despite the High Court’s direction to take into account the Fox ruling. In light of that fact, Hilden suggests that the “Nipplegate” case may end up at the Supreme Court—for the Justices may be unhappy with the Third Circuit panel majority’s approach of reiterating its prior decision, while emphasizing certain points it made earlier even more, in light of Fox, rather than altering its approach with Fox in mind.

Scholars’ Amicus Brief Controversy Reflects the Evolving Relationship Between the Bench and the Legal Academy

Updated:

Justia columnist and Cornell law professor Michael Dorf comments on the evolution and role of the “scholar brief.” A scholar brief is an amicus (friend-of-the-court) brief submitted to a court—usually, the U.S. Supreme Court—by a law professor acting in his or her role as scholar, rather than advocate. Dorf notes that a column in The New York Times recently pointed to Harvard Law Professor Richard Fallon’s article draft questioning the value of scholar briefs, by suggesting that they are very often not particularly scholarly. In this column, Dorf considers why scholars’ amicus briefs have proliferated recently, and what light that proliferation sheds on the evolving relationship between the bench and the legal academy. In particular, Dorf connects the proliferation of scholar briefs to the increasing divide between legal scholarship in the academy, and the more practical work of the courts, including the Supreme Court. And yet, he notes that the academy’s work—contrary to the claims of some—actually does continue to have relevance to courts, in part by showing how disciplines such as economics and psychology can better illuminate the workings of the law.

The Penn State Scandal: Why Is No One Talking about Title IX? Part Two in a Two-Part Series of Columns

Updated:

In the second in a two-part series of columns on the Penn State alleged child sex abuse and failure-to-report scandal, Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake continue their commentary on a new and interesting legal aspect of the scandal. They argue that in addition to raising issues of criminal liability and civil tort liability, the alleged Penn State child abuse and the failure to report it may also raise issues under Title IX—the 1972 federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Here, in Part Two of the series, Grossman and Brake discuss particular issues that may arise if a Title IX claim is brought: Does it make a difference if a given boy was abused only once, for liability purposes? Did the alleged Penn State abuse occur under “any education program or activity” as the statute requires? Does Title IX apply to the alleged harassment by Jerry Sandusky of these particular boys, who (obviously) were not Penn State students? In answering these questions, Grossman and Brake explain why, at the very minimum, the alleged sexual assaults that took place in the showers of the Penn State locker room or its sauna would, at least, fall within Title IX’s reach. In addition, they explain the legal issues regarding Penn State’s potential liability for the abuse, and look to the Grand Jury’s report to see if actual notice and deliberate indifference can be proven, as Title IX requires. Finally, Grossman and Brake note that, for several reasons, there are likely to be no statute-of-limitations issues here, despite the passage of time.

The Penn State Scandal: Why Is No One Talking About Title IX? Part One in a Two-Part Series of Columns

Updated:

In the first in a two-part series of columns on the Penn State alleged child sex abuse and failure-to-report scandal, Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake comment on a new and interesting legal aspect of the scandal. They argue that in addition to raising issues of criminal liability and civil tort liability, the alleged Penn State child abuse and the failure to report it may also raise issues under Title IX—the 1972 federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Grossman and Brake note that Title IX has been used in the past to address sexual harassment by teachers and coaches, and by third parties, and that such harassment can encompass sexual assault and rape. Title IX, they note, also reaches same-sex harassment. Based on the grand jury presentment, Grossman and Brake detail the allegations at issue. Based on Supreme Court precedent, they explain why the alleged conduct at issue could fit within the parameters of Title IX.

The Urgent Need to Fill The Current D.C. Circuit Vacancies

Updated:

Justia guest columnist and U. Richmond law professor Carl Tobias comments on the lingering vacancies on the U.S. Court of Appeals for the District of Columbia Circuit, and urges that they be filled. Tobias explains why the D.C. Circuit has been called the nation’s second most important court, behind only the U.S. Supreme Court, and notes that D.C. Circuit judges, more than other federal Circuit Court judges, are especially likely to go on to become U.S. Supreme Court Justices. Tobias emphasizes the importance of President Obama’s soon choosing nominees for the open D.C. Circuit spots, and of the Senate’s expeditiously confirming those nominees, and thus transcending the typically contentious battles that have been fought in the past over this Circuit’s seats. He also explains some of the likely reasons why the President has only nominated one person thus far to fill a D.C. Circuit opening.

Justice Thomas Takes Aim at the Court’s Church-State Jurisprudence but Hits the Constitution Instead

Updated:

Justia columnist and Cornell law professor Michael Dorf comments on Justice Thomas’s views on the proper approach to cases raising issues regarding the Constitution’s separation of church and state. Dorf contends that Justice Thomas is correct to observe that the Court’s current test for when the government is unconstitutionally endorsing religion, in violation of the Establishment Clause, is so vague that the way that lower courts and even the Supreme Court will rule, when applying the test, is highly unpredictable. Justice Thomas has accurately pointed out, for example, that a crèche displayed on government property violates the Establishment Clause, except when it doesn’t; a menorah displayed on government property violates the Establishment Clause, except when it doesn’t; and a cross displayed on government property violates the Establishment Clause, except when it doesn’t. Nevertheless, Dorf contends that Thomas, while mounting a biting critique of the Court’s current endorsement test, does not offer a superior alternative—and points out that, given the numerous Justices who’ve tried to solve this thorny problem over the years, there may actually be no superior alternative.

The Reasons Why Herman Cain Has Not Been Able to Talk His Way Out of His Exploding Sexual Harassment Scandal

Updated:

Justia columnist and Hofstra law professor Joanna Grossman comments on the Herman Cain sexual harassment scandal from a legal, rather than political, point of view—based on what is known so far, and on Cain’s own comments regarding sexual harassment. Grossman recalls Cain’s negative remarks about the Civil Rights Act of 1991, which strengthened discrimination law, and she explains in detail how discrimination law, and sexual harassment law in particular, have improved the situation of women in the ensuing years. She also takes issue with Cain’s suggestion that speaking to someone cannot be sexual harassment—pointing out that if the words that are spoken connect job benefits with sexual favor, speaking them is the very epitome of sexual harassment. In addition, Grossman notes that harassment by someone who is the head of a company, as Cain has been, triggers different and harsher rules and heightens the risk to the company. Finally, Grossman questions Cain’s claims that he was adept at line-drawing in this difficult legal area, and may only have had a problem with “over-complimenting” women. She notes, too, that the law sees things not from the point of view of the alleged harasser, but of the victim and of a reasonable person in the victim’s place. Worst of all, Grossman, argues, is Cain’s contention that the claims against him were fabricated; fabrications, she points out, are extremely rare in this area of law, making the multiple claims against Cain especially damning.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Dale E. Fowler School of Law. Before that, he was University Profe... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more