Justia columnist and U.C. Davis law professor Vikram David Amar comments on an interesting case about affirmative action, in which U.S. Supreme Court review is being sought. As he explains, the case asks the question whether a rejected applicant who challenges an affirmative-action program as unconstitutional must prove that, without the affirmative-action program, he or she would have been admitted. Focusing on two key prior Supreme Court cases, Amar notes that there is another possible standard to be applied here—one under which the applicant would not need to show that he or she would have been admitted under the program, but would simply need to assert that he or she had applied, and thus that he or she had been harmed by being considered under an unconstitutional set of rules. Carefully parsing the Court’s precedents, Amar considers whether ambiguous prior decisions are best seen as involving substantive or jurisdictional issues.
Justia columnist and U.C. Davis law professor Vikram David Amar comments on a case that the Supreme Court will take up this November. As he explains, the case potentially raises thorny questions regarding two important topics: (1) the relationship between Congress and the President with respect to American foreign policy in the Middle East; and (2) the power (or lack of power) of federal courts to weigh in on such matters, pursuant to the Court’s “political question” doctrine. The case, MBZ v. Clinton (that is, Secretary of State Hillary Clinton), involves a 2002 law passed by Congress that, among other things, requires the Secretary of State, upon the request of a citizen or the citizen’s legal guardian, to record the place of birth for U.S. citizens born in the city of Jerusalem “as Israel.” President Bush signed the law into effect, but issued a signing statement to disclaim the legal effect of part of the law he was signing—on the ground that forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President’s constitutional power to formulate and speak on behalf of American foreign policy. The plaintiffs in the M.B.Z. lawsuit seek to force the executive branch to follow the terms of the statute, notwithstanding the signing statement’s disclaimer. Whether they can do so, Amar explains, depends on whether the case at issue triggers the political question doctrine, under which there are some questions on which even the U.S. Supreme Court cannot rule, on the ground that they are properly resolved by one of the U.S. government’s political branches, rather than by the Court.
Justia columnist and U.C. Davis law professor Vikram David Amar comments on Pennsylvania and Nebraska proposals to change the allocation of those states’ electoral college votes. Amar expresses concern that, while the proposals may not be illegal, they are nevertheless deeply problematic and antithetical to basic principles underlying American democracy. The Pennsylvania proposal would alter the winner-take-all approach to the states’ electoral college votes, and instead would allocate the lion’s share of those votes based on how many congressional districts a given candidate won. Meanwhile, in Nebraska, another proposal suggests the opposite change: from a district-by-district approach to winner-take-all. Amar points out that each of these proposals, authored by Republicans, has been put forward now for a plainly partisan reason: to reduce President Obama’s chances of re-election. Amar contends that this partisan motive should make us skeptical of the proposals, which would take effect immediately, much more so than if they were to take effect at a time in the future when their authors could not so easily determine what their partisan effect might be. Finally, Amar also considers whether Bush v. Gore ought to be deemed relevant to the controversy over the Pennsylvania and Nebraska proposals.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, assess the claim of Texas governor and presidential candidate Rick Perry that the U.S. Constitution’s Seventeenth Amendment—which provides for the direct election of U.S. Senators—was a mistake. Amar and Brownstein explain the original Constitution’s provision for state legislative election of Senators, and the thinking behind it, and the genesis of the Seventeenth Amendment. They also assess the Amendment’s costs, but note that if it were repealed, there would be costs to that decision, as well.
Justia columnist and U.C. Davis law professor Vikram David Amar comments on an affirmative action decision from the U.S. Court of Appeals for the Fifth Circuit in which the Supreme Court may well grant review. Amar explains why, if the High Court does indeed take the case, its decision may substantially alter constitutional law relating to affirmative action in the context of educational admissions. In addition, Amar notes that this case, if taken up by the Court, may illustrate the very considerable power that Justice Anthony Kennedy now wields. Amar also provides thorough background to allow the reader to put this case, and the issues it raises, in the context of prior precedents relating to affirmative action in admissions, such as Bakke, Hopwood, Grutter, and Gratz.
Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.
Justia columnist and U.C., Davis, law professor Vikram David Amar argues in favor of America’s adoption of the National Popular Vote (“NPV”) proposal. As Amar notes, California may soon adopt the proposal, and if it does so, that would be a major development in the movement towards a direct national popular election for the Presidency. The essential idea, he explains, is to get states that, together, possess a sufficient number of electoral votes to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who may have prevailed in that state, but rather for the candidate who won the most popular votes nationally. Amar points out that this idea could be put into effect without a constitutional amendment, considers the details of how the NPV proposal might work, addresses some possible criticisms, and notes that requiring Congressional approval for the proposal to take effect might be wise.
Justia columnist and U.C. Davis law professor Vikram David Amar completes his two-part series of columns on two key decisions from the U.S. Court of Appeals for the Sixth Circuit. His last column focused on the Circuit’s Obamacare ruling; this one focuses on the Circuit’s ruling on an issue relating to affirmative action. Amar describes two different lines of Supreme Court precedent that offer different ways of analyzing affirmative action cases, and considers the possibility that the Court will take the opportunity—by reviewing this or another lower-court decision—to clean up apparent tensions between these two lines of High Court cases.
Justia columnist and U.C., Davis law professor Vikram Amar begins a two-part series on two important recent rulings by the U.S. Court of Appeals for the Sixth Circuit, both of which may end up before the Supreme Court. In this first column, Amar comments on the Sixth Circuit ruling that upheld Obamacare—citing a number of factors that make the decision noteworthy. These factors include a conservative judge's vote to uphold Obamacare; that same judge's use of broad reasoning in doing so; the fact that the dissenter was a district court judge; the decision's timing; and the arguments the two judges in the majority could have made, but declined to make, in support of the statute.