Analysis and Commentary on Constitutional Law

The Defense of Marriage Act (DOMA) Takes Another Bullet: How Can It Survive?

Justia columnist and Hofstra law professor Joanna Grossman comments on recent and past developments regarding the Defense of Marriage Act (DOMA), which sought to ignore valid same-sex marriages for federal purposes, such as the receipt of federal benefits. Grossman covers the beginning of DOMA; describes DOMA’s effect, including the legal havoc it wrought; and notes recent developments that she predicts will ultimately spell the death of DOMA. With four federal courts striking down DOMA’s key provision, Section Three, in just the last six months—in decisions that Grossman describes in detail—and the Department of Justice refusing to defend the law, Grossman suggests that the law cannot stand much longer.

The Michigan Supreme Court Holds That the First Amendment Protects Drivers From Being Punished for Their Purely Verbal Disagreements With Parking Ticket Officers

Justia columnist and attorney Julie Hilden comments on a recent Michigan Supreme Court First Amendment case, regarding a Michigan State University (MSU) ordinance. The ordinance makes it a misdemeanor to disrupt an MSU officer from performing his or her normal activities. In this case, a man whose car has been ticketed went up to the officer whom he believed gave him the ticket, and began shouting at him; a misdemeanor conviction ensued. The Michigan Supreme Court ultimately heard the case, addressing the key question whether a purely verbal interaction could constitutionally count as falling within the ordinance. Relying on a closely parallel Supreme Court precedent, the Michigan Supreme Court held that it could not.

Why the Chick-fil-A Controversy Raises Tough Questions About Government Power to Regulate Business Based on Owners’ Political Spending

Justia columnist and Cornell law professor Michael Dorf confronts an interesting question arising from a controversy relating to the Chick-fil-A restaurant chain. The chain’s president has made anti-same-sex-marriage statements. Under the First Amendment, Dorf notes, no government—federal, state, or local—can punish him for those statements alone. But Dorf also notes that the speech of businesses and their representatives can sometimes be a legitimate concern of government. And he cites two central reasons: First, speech manifesting bias may hint at illegal conduct manifesting the same bias, thus arguably justifying special scrutiny for the speaker. And second, in many circumstances, private speech may also implicate the government itself—for instance, when there is a restaurant on a military base. Citing a mix of hypotheticals and real-life examples, Dorf illustrates the difficult constitutional issues that are at play here.

Digital Parody and the Shell Arctic Hoax: Did the Yes Men Cross A Legal Line With Their Most Recent Brandalism?

Justia columnist and U. Washington law professor Anita Ramasastry comments on legal issues regarding the “Yes Men”—a group that creates faux websites and events in order to take aim at corporations, and other entities, the actions of which they oppose. While parody is strongly protected under Supreme Court precedent, Ramasastry notes that the Yes Men’s work is somewhat different from traditional parody, which makes the difference between the parody and its target very clear, very quickly. Ramasastry suggests that in the future, the Yes Men’s strategy may be tested, for the Yes Men’s actions may cause more confusion—and for that reason, may not receive, in court, the full protection that clear, non-confusing parodies enjoy. Ramasastry concludes that even if that is the case, this will have little impact on the Yes Men’s strategies—beyond changing the corporate names on their parody sites.

A Florida Court Allows a College Professor to Learn the Name of a Student Who Lodged a Complaint Against Him: Was This the Right Result?

Justia columnist and attorney Julie Hilden comments on an interesting case regarding educational privacy. The case arose when a Florida college instructor sought to find out the name of the student who had filed a complaint with the college against him. Federal and Florida law regarding student privacy were stumbling blocks, but the instructor ultimately did find out the name of the complaining student. As Hilden explains, precedent indicates that students’ educational privacy rights yield only if a given communication is held to be not directly, but only tangentially, related to a student. Here, that very holding was made—since although the student sent the complaint, the substance of the complaint was about the professor. Hilden questions the court’s reasoning, and questions, more broadly, whether privacy is much needed in the education context in the first place.

The Supreme Court Strikes Down the Stolen Valor Act: Was It the Right Call?

Justia columnist and attorney Julie Hilden comments on the Supreme Court’s recent ruling striking down the Stolen Valor Act (SVA), a federal criminal statute that punishes lies about winning medals, including the Congressional Medal of Honor. Hilden covers the majority opinion striking down the SVA, Justice Breyer’s concurrence, and the adamant, fact-filled, and passionate dissent. Hilden contends that this case was not only interesting in its own right—because the SVA permitted criminal consequences simply for a proven lie, and nothing more than that—but also interesting as a political litmus test of sorts: Liberals, she suggests, will tend to worry about imposing harsh criminal penalties on mere bar-room braggadocio, while conservatives will tend to worry about the dilution, by false claims, of the significance of the medals that cost so much, and mean so much, to the recipients and their families.

Can A Lower Federal Court Effectively Provide Protection Against Prosecution? A Mississippi Abortion Law Raises the Question

Justia columnist and U.C., Davis law professor Vikram David Amar comments on an interesting and important issue regarding the power of federal courts. Specifically, Amar addresses the question whether a federal court can issue an injunction against future prosecution: If a district court tells you that the actions you are about to take are immune from prosecution, should you be able to rely on that immunity, even if it turns out that the district judge had provided it based on a flawed legal premise? As Amar points out, the Supreme Court precedent on this question is far from clear, and at least one of the Court’s liberals has suggested that reliance by a party on immunity that is wrongfully accorded to that party by a district court may be foolhardy. Amar also explains how this issue has arisen in a current controversy about Mississippi abortion services.

Coercion, Volition, and Consent: Did the Supreme Court’s Decision Limiting Congress’s Ability to Cut Off Medicaid Funds Signal a New Sensitivity to the Realities of What Counts as a “Free” Choice?

Justia columnist, George Washington law professor, and economist Neil Buchanan comments on an interesting and little-remarked aspect of the Supreme Court’s recent decision regarding the Affordable Care Act (ACA), also known colloquially as “Obamacare”: the decision’s concept of what constitutes free choice. Buchanan examines the significance of that concept in the ACA case, and notes that—in addition to the decision’s significance for Commerce Clause cases, and taxing power cases—the ACA decision may possibly affect other cases, in other areas of law, that also turn on what counts as the exercise of free will, versus what counts as coercion.

A Legal Challenge to Targeted Killings

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner asks the following question, which she notes is far from hypothetical, as three Americans have already been killed: Does the Executive Branch—including, specifically, the Pentagon and the CIA—possess unreviewable power under the US Constitution to carry out targeted killings of Americans overseas? With an ACLU/Center for Constitutional Rights lawsuit being filed today to challenge the legality of targeted killings carried out by the United States, the contention that these scenarios fall under the “political question” doctrine and thus cannot be adjudicated in court, will be tested soon.

Bringing Title IX to Bear on the Problem of Sexual Violence in Schools: Part Two of a Two-Part Series

In Part Two of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman continues her discussion of the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result. Here, Grossman stresses, among other points, that a police investigation of alleged sexual harassment or assault is no substitute for the required school investigation that is mandated.

Bringing Title IX to Bear on the Problem of Sexual Violence in Schools

In Part One of a two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman discusses the application of Title IX of the Education Amendments of 1972, which effected a ban on sex discrimination by educational institutions that receive federal funding. Grossman focuses especially on the recent case of Student v. Henderson Independent School District (HISD), in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault; and the legal standards that produced that result.

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the ten key takeaways from last week’s Obamacare opinion. Some of the lessons Amar suggests that the opinion teaches are not just about the Supreme Court, but, interestingly, also about the media, and about Intrade users. Moreover, when it comes to the Court and its Justices, Amar points out lessons that we might learn about Justice Kennedy and Chief Justice Roberts, respectively, from the opinion. Amar also points out lessons that we might learn from the opinion about Commerce Clause doctrine and doctrines regarding constitutional federalism.

It Does Not Matter Whether Congress Calls a Tax a Tax: Explaining the Dissenting Justices’ Misconceptions About the Taxing Power in the Affordable Care Act Case

Justia columnist, George Washington law professor, and economist Neil Buchanan takes aim at the arguments that the dissenting justices made regarding the Affordable Care Act (ACA), and, more specifically, regarding the taxing power. Those taxing power arguments, Buchanan contends, proved to be a dangerous red herring. Buchanan makes his case to that effect by using some ingenious hypotheticals; he argues that it is perfectly logical to deem a certain measure a tax for some purposes, but not for others. It is substance, he says, rather than form, that ultimately matters. Moreover, Buchanan notes, a tax by its nature need not be motivated by the government’s aim to raise money, although the ACA will, indeed, raise some money. Often, Buchanan points out, taxes are meant not to raise money but to incentivize or penalize certain behaviors. Ultimately, Buchanan notes that it is of no import, legally, that the ACA is not characterized as a tax; the key is that it, in part, operates as a tax.

Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan

Justia columnist and former counsel to the president John Dean comments on Chief Judge John Roberts’s role in the Supreme Court ruling upholding Obamacare. Dean anticipated that Roberts would vote, as he did, to uphold the healthcare statute, and Dean notes some other learned commentators who had also anticipated Roberts’s stance. A major factor in Dean’s prediction as to where Roberts would come down was Robert’s own testimony in the confirmation hearings that led him to join the Court. Describing himself in those hearings as an “umpire,” Roberts made clear that he would apply pre-existing, well-grounded legal rules, and not create new ones out of whole cloth. To show how Roberts did just that, Dean sums up the various Commerce Clause precedents that were relevant in the Obamacare case, and explains how Roberts dutifully followed them.

Why The D.C. Court of Appeals Rejected the Claim that Performing a Rap Constituted Making a Criminal Threat

Justia columnist and attorney Julie Hilden comments on a recent decision by the D.C. Court of Appeals—D.C.’s highest court—regarding the First Amendment and the “true threats” doctrine, which holds that true threats are not First Amendment-protected. Hilden notes that the case was unusual as it involved not just a statement, but a rap. After covering three key U.S. Supreme Court cases regarding the “true threats” doctrine, Hilden goes on to consider why the court ruled in favor of the speaker, and to agree with the court’s result. She also emphasizes the importance of context in the decision whether a given comment counts as a true threat or First-Amendment-protected speech, and notes a number of factors that might cut for or against a “true threat” finding in particular cases.

The Big 4-0: Title IX Puts a Fourth Decade Under Its Belt

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake comment on the 40th anniversary of Title IX, the federal civil rights statute that bans sex discrimination in federally-funded education programs. Grossman and Brake focus on the area in which Title IX has had its biggest impact, athletics, and explain its impact on college women’s and high school girls’ opportunities in sports. They reveal the secrets of Title IX’s success, including its refusal to take current, status quo levels of girls’ and women’s interest in sports as fixed or natural and thus to cap opportunities at current levels. Grossman and Brake also comment on Title IX’s recent history, criticizing the George W. Bush Administration for undermining the law, and praising the Obama Administration for properly enforcing it. Finally, they describe the stumbling blocks that still remain when it comes to full Title IX enforcement.

Under What Circumstances Can a State Compel a Pharmacy to Provide “Morning After” Drugs Against the Religious Objections of Pharmacists? A Case From Washington State Illustrates Modern Free Exercise Doctrines and Dilemmas

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on a recent Washington State controversy that raises the issue whether a pharmacy must provide the emergency contraceptive known as “Plan B” if the pharmacy’s owner objects to doing so, based on his or her own religious beliefs. (Such pharmacy owners believe that life begins at conception, meaning fertilization; Plan B prevents the implantation of a fertilized egg.) Amar and Brownstein note that the case is important and interesting not just in itself, but also because it illustrates many of the unanswered questions that concern the First Amendment’s Free Exercise Clause. The federal judge who heard the case ruled in favor of the pharmacy owners, but was he right to do so? Amar and Brownstein consider the arguments on both sides, focusing especially on the Supreme Court case of Church of Lukumi Babalu Aye v. Hialeah, in which a church sought to sacrifice animals in its rituals even though doing so was against the law. They also consider variations of the fact pattern in the Washington State case itself, and consider whether they might yield different results.

Social Security and the Economy: The President and Congress Should Be Happy That Social Security Is Not Part of the Problem, and They Should Leave It Alone

George Washington law professor and economist Neil Buchanan argues that the current debate about Social Security is dangerously misleading in several ways. Buchanan faults both parties for using inaccurate rhetoric: President Obama, he says, must stop acting as if Social Security is in peril, and both the President and Congress must stop using Social Security as a bargaining chip in negotiations with Republicans. In turn, and most importantly, Buchanan argues, Republicans must stop misrepresenting Social Security’s current financial situation as being dire, when that really is not the case. The best approach now, he argues, is to leave Social Security alone and focus on improving the economy. Buchanan also calls for an end to misleading estimates regarding in what year Social Security will be “bankrupt,” as they only scare and mislead the public. Finally, too, he warns that calls to “Act now to save Social Security” are often plans to weaken Social Security, in disguise.

How Rulings of the Supreme Constitutional Court of Egypt Hold Lessons for Emerging Democracies, and for Our Own

Justia columnist and Cornell law professor Michael Dorf comments on what emerging democracies, and even America’s own long-established democracy, can learn from two recent rulings from the Supreme Constitutional Court of Egypt. As Dorf explains, the rulings, and the political context in which they arose, can teach us much about courts’ role in promoting democracy. He notes that the world has decisively opted for constitutional review, and the protection of individual rights, which are now a standard feature of established democracies around the globe. Dorf notes, however, that constitutional courts in emerging democracies not only must worry about the tyranny of the majority and the protection of individual rights, but must also be concerned that the government will fall prey to a military coup. In addition to commenting on Egypt’s situation, Dorf also cites Pakistan as another instructive example of the role of courts.

A Supreme Court Ruling on Jurisdiction Has Potential Implications for the Law Regarding Drone Strikes

Justia columnist and Cornell law professor Michael Dorf discusses the Supreme Court’s decision in Elgin v. Dep’t of Commerce, which was just recently handed down. Dorf argues that the opinion, though not one of Term’s blockbusters, is still quite significant. That is, in part, because the decision may have implications for the U.S.’s controversial practice of using drone strikes to kill persons deemed to be U.S. enemies—including even U.S. citizens who are abroad. Moreover, Dorf notes that Elgin may have implications for the question whether the Obama Administration has been on firm legal ground when it has declined to enforce the Defense of Marriage Act (DOMA). In addition to these more practical implications of Elgin, Dorf contends that the decision may also be significant as a matter of constitutional theory regarding the respective roles of each of the branches of government.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more