Constitutional Law

Just tuned in to the hearings on

Posted on June 30, 2010
Just tuned in to the hearings on Lady Kaga (blogger David Lat's term) on CSPAN -- and have been reminded why it's such a better use of my time to blog up Supreme Court opinions than Supreme Court hearings.What kind of opposition party do the Republicans think they're being, when all they do is orate? The most radical nominee any Democratic president ever dreamed of sending up would have nothing

Here is a better link for Prof.

Posted on June 30, 2010
Here is a better link for Prof. Randy Barnett's WSJ op-ed on McDonald. H/t: Randy! And leave it to CATO to make sure its scholars' op-eds are available to the public! ;)The reason you should read this is that it details why the Thomas concurrence not only provides a scholarly analysis of the 14th Am...

Before Monday's onslaught of end-of-year

Posted on June 28, 2010
Before Monday's onslaught of end-of-year SCOTUS bombshells, this blog would like to extend deepest condolences to Justice Ginsburg and her family on the passing of her husband, eminent tax attoreny Martin Ginsburg. RIP.

Remarkable that Free Enterprise

Posted on June 28, 2010
Remarkable that Free Enterprise Fund is a unified opinion from start to finish! I was sure that if any opinion today would be fractured, it would be this one (along with McDonald, which partly was).The Chief, writing for the Court, even prevented Scalia from writing a jeremiad-concurrence about Humphrey's Executor and its woeful progeny...

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WHOA!! Separation-of-powers geeks

Posted on June 28, 2010
WHOA!! Separation-of-powers geeks -- and that should be all Americans, especially those who like to call themselves constitutionalists and go to rallies where there are George Washington impersonators -- rejoice!In Free Enterprise Fund v. PCOAB, the Court has actually found that a set of federal bureaucrats are "inferior officers" within the meaning of the Appointments Clause, and that the

Bilski, the patent case, is a wishy-wash.

Posted on June 28, 2010
Bilski, the patent case, is a wishy-wash. This particular business process can't be patented, but there's no categorical prohibition on patenting business process. Only clear result: further gajillions in billable hours for patent lawyers.

CLS is a loss. Ginsburg writes,

Posted on June 28, 2010
CLS is a loss. Ginsburg writes, as SCOTUSBlog predicted. Narrow, however: remand to 9th Circuit; CLS still has a case if Hastings applies its policy "selectively."Remember that the oral argument in this case began with the Justices expressing confusion about the most basic facts in it, and proceeded with McConnell, arguing for CLS, fending off accusations of trying to back-peddle from some

More about McDonald: The majority

Posted on June 28, 2010
More about McDonald: The majority leaves the issue of the Privileges or Immunities Clause substantially untouched. In a section that is plurality only, the Alito opinion (with Scalia on board) says there is no need here to revisit the P/I Clause and the Slaughterhouse Cases, since the Due Process Clause is the established way in which the Court has long applied the Bill of Rights to the

Justice Alito has written McDonald,

Posted on June 28, 2010
Justice Alito has written McDonald, holding that the 14th Am. makes the 2nd Am applicable to the States!The first part of the opinion is a scholarly overview of the Court's past practices in applying the B of R to the states (or not) under the P/I Clause and/or the Due Process Clause...

More on CLS v. MartinezRemember

Posted on June 28, 2010
More on CLS v. MartinezRemember Tom Lehrer's "The Folk Song Army"?We are the Folk Song Army.Everyone of us cares.We all hate poverty, war, and injustice,Unlike the rest of you squares.Thought I caught a little tribute, if not to that song, then at least to its "protest" against the notion that indignant liberals have a natural monopoly on moral outrage and the social stature that goes with it,

OK, let's turn to Christian Legal

Posted on June 28, 2010
OK, let's turn to Christian Legal Society v. Martinez now. I'll start with the Alito dissent, cos it's my blog & I can do whatever I want (cos I'm not on the Hastings College of Law campus). "SAA" is loaded for bear:The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS?s application for registration...

Free Enterprise Fund gets even

Posted on June 28, 2010
Free Enterprise Fund gets even better, this time in a part where petitioners do not prevail. On the issue of appointment power, as distinct from the removal power, the Court adopts a position taken by Scalia and three others in his "scathing concurrence" (my term) in Freytag v...

Free Enterprise Fund, slip op.

Posted on June 28, 2010
Free Enterprise Fund, slip op. at 25:The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. Post, at 23?31.By "such positions," the Court is referring to "other" independent agencies whose members are removable only by the (tenure-protected) heads of still-other independent agencies...

I haven't posted yet on Doe v.

Posted on June 25, 2010
I haven't posted yet on Doe v. Reed -- the referendum-signature public-disclosure 1st Am case, decided yesterday -- because I've been contemplating the radical divergence between the extreme of the Scalia position (concurring separately) and the Thomas position (a lone dissent)...

More preparations for CLS armageddonI

Posted on June 24, 2010
More preparations for CLS armageddonI wrote a rather confused blogpost here (scroll down, after enjoying the Douglas/IOLANTHE business if you like) about the rather confused oral argument in CLS v. Martinez (decision expected next Monday; see post immediately infra)...

To those waiting to find out whether

Posted on June 24, 2010
To those waiting to find out whether the Court will hold that business process can be patented: you'll have to wait until Monday. Fwiw, SCOTUSBlog is sure (based on who has and has not written opinions from the Court's last round oral arguments this year) that Justice Stevens will write the opinion in the business-processes case (Bilski v...

Part III of the Humanitarian Law

Posted on June 21, 2010
Part III of the Humanitarian Law Project opinion points to a way the Obama DOJ has of defending statutes that tread close to free-speech interests. If the Bush boys did the same thing, please point that out to me.When SG Kagan was defending McCain-Feingold in Citizens United, and had to admit that the law would authorize the banning of books within 60 days of an election, she fell back on the

Plaintiffs do not challenge the

Posted on June 21, 2010
Plaintiffs do not challenge the above statutory terms in all their applications. Rather, plaintiffs claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities....such as splitting infinitives:With respect to the HLP and Judge Fertig, those activities are: (1) ?train[ing] members of [the] PKK on how to use humanitarian and international law to

Of obvious interest to those following

Posted on June 21, 2010
Of obvious interest to those following the Flotilla Megilla, even though the IHH is not a party the case we are considering:The District Court in this action found that the PKK [Kurd dudes] and the LTTE [linked to "Tamil Tigers"] engage in political and humanitarian activities...

We conclude that the material-support

Posted on June 21, 2010
We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future...

Chief Justice Roberts delivered

Posted on June 21, 2010
Chief Justice Roberts delivered the opinion of the Court. And if you're not in, he leaves it with the doorman. -- Sorry; being from New York, I've loved that really stupid line for ages.

Holder v. Humanitarian Law Project

Posted on June 21, 2010
Holder v. Humanitarian Law Project is out, with a 6-3 victory for the guvmint. This was the one where even warriors-on-terror like me wondered whether the government may have gone too far toward construing speech as aid to terror. Reading now; we'll see.

So, what have we got in Holder

Posted on June 21, 2010
So, what have we got in Holder v. Humanitarian Law Project? (See earlier posts: this is a summary.)We've got: foreign organizations that might be called "dual-use": some of their activities are terrorist, others are not; and American citizens who sympathize with them and want to help their non-terrorist goals, in ways that are speech-like, though also susceptible to more concrete and specific

The Court also sees this case,

Posted on June 21, 2010
The Court also sees this case, not only as Cohen/Johnson rather than O'Brien (which would favor the plaintiffs as far as that goes), but also as an international security analogue of Brandenburg, with the standard appropriately adjusted in favor of law enforcement due to the judiciary's institutional lack of competence in this area:The Government, when seeking to prevent imminent harms in the

Free speech aspects of the case:1.

Posted on June 21, 2010
Free speech aspects of the case:1. Contrary to gov't's contention, this is not O'Brien; the restrictions are content-based, therefore it's Cohen/Texas v. Johnson.2. However: "It is not difficult to conclude as Congress did that the 'tain[t]' of such violent activities [as PPK and LTTE have engaged in] is so great that working in coordination with or at the command of the PKK and LTTE serves to

In part IV, the Court seems to

Posted on June 21, 2010
In part IV, the Court seems to be saying: the test for vagueness is more sensitive when speech and expressive association are concerned; but it does not follow that speech and expressive association are a "third rail" such that any otherwise-valid law that touches them become per-se void for vagueness...

Filibuster -- NONo, Senate Minority

Posted on June 20, 2010
Filibuster -- NONo, Senate Minority Leader Mitch McConnell is not hinting at a filibuster of Elana Kaga. He is merely not closing the door on it. But he should close that door.It's all very well -- in fact, it's brilliant -- to point out, as he does, that currently active Democrats, including Obama, have voted to require a 60-vote threshold for Supreme Court nominations...

Elena Kagan supported Peter KeislerWell,

Posted on June 19, 2010
Elena Kagan supported Peter KeislerWell, here's why I don't feel I can oppose the Kagan nomination actively. (H/t: SCOTUSBlog)I have no illusions about how she'll vote on the Court, tho' I think her likely influence within the Court has been overstated...

So, what does Stop the Beach Renourishment

Posted on June 18, 2010
So, what does Stop the Beach Renourishment betoken for McDonald? 1. Scalia -- whether he's writing the opinion of the Court, or a concurrence, or a dissent, will not use Substantive Due Process to apply the 2nd Am to the states. Still less will he use the P/I Clause...

As we have said, if we were to

Posted on June 17, 2010
As we have said, if we were to hold that the Florida Supreme Court had effected an uncompensated taking in this case, we would not validate the taking by ordering Florida to pay compensation. We would simply reverse the Florida Supreme Court?s judgment that the Beach and Shore Preservation Act can be applied to the Members? property...

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