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Hobby Lobby: does RFRA violate the Establishment Clause?

In the 1997 case Boerne v. Flores, where the Supreme Court decided that the Religious Restoration and Freedom Act exceeded the Congres' Section 5 enforcement power as applied to the states, Justice John Paul Stevens issued a little remarked concurrence in the result. Justice Stevens wrote:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).

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Federal Judge in Florida Rules Welfare Drug Testing Unconstitutional

Good news in Florida today. A federal judge in Orlando has ruled Florids's law requiring welfare recipients to be tested for drugs is unconstitutional.

“The court finds there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied,” she wrote. The ruling made permanent an earlier, temporary ban by the judge.

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Stop and Frisk Ruled Unconstitutional

NYTimes:

In a repudiation of a major element in the Bloomberg administration’s crime-fighting legacy, a federal judge has found that the stop-and-frisk tactics of the New York Police Department violated the constitutional rights of minorities in New York, and called for a federal monitor to oversee broad reforms.

Here is the opinion.

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WaPo: Individual Section 215 Searches Not Subject to FISA Court Review

This is an interesting bit of pushback from the NSA, as anonymously sourced to Dana Priest of the WaPo:

The analysts’ 215 requests go to one of the 22 people at the NSA who are permitted to approve them — the chief or the deputy chief of the Homeland Security Analysis Center or one of 20 authorized Homeland Security mission coordinators within the Signals Intelligence directorate’s analysis and production directorate.

Once a request is approved, it is given to one of the Signal Intelligence directorate’s 33 counterterrorism analysts who are authorized to access the U.S. phone metadata collection.

The sourcing is intended to push back from the idea that any old analyst can just make this decision. But in the attempt, it undermines the idea that the FISA court is an actual check on NSA abuse. The FISA court is not involved at all in the individual search process, according to Priest's NSA sources.

That undermines the idea of the FISA court as an effective check on the NSA.

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It Was 40 Years Ago Today: Roe v. Wade

It is all the fashion these days to criticize the opinion in Roe v. Wade (and the companion case, Doe v. Bolton), which 40 years ago today guaranteed a women's constitutional right to privacy with regard to pregnancy.

While neanderthals like Andrew Sullivan label Roe the "the worst decision ever made by the Supreme Court" (Dred Scott? Plessy? Dagenhart? Korematsu? Bush v. Gore?), even intelligent individuals like Jack Balkin and the Yale Law School crowd have argued that Roe was poorly reasoned, if correctly decided.

I come here today to defend the opinion in Roe, which, while not the most articulate of opinions, still holds up as an exercise of reasoned judicial decision making. Read why I think so on the flip.

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The Founders vs. The Republican Party

Josh Marshall writes:

If you read about how the federal constitution came about, one thing is crystal clear: it was devised by people who wanted to create a strong federal government and saw the states as obstacles to doing so. The people who believed in states rights and an anemic federal government — the ancestors of today’s Tea Party — were the Anti-Federalists. And they lost.

Regular readers know this: see The Republican Party, The Anti-Federalists And The Tea Parties, Taking The Tenth Amendment Seriously, The Tea Party v. Alexander Hamilton, What The Tea Party Believes, What The Founders Believed and David Brooks' Dishonest Invocation of Alexander Hamilton.

Marshall reports on the somewhat more honest GOP attempts to reinstate the Articles of Confederation. Marshall writes:

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Living Originalism: A Conference

I'm participating at a Yale Law School conference on Constitutional Interpretation on Jack Balkin's book "Living Originalism. I wrote about it last week. Some previous posts on the subject: Constitutional Interpretation, Originalism and a Living Constitution and Dred Scott, Originalism and a Living Constitution..

You can watch a live stream of the conference. It should be fascinating.

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DC Circuit Upholds ACA's Individual Mandate

Here is the opinion (PDF).

As I have argued repeatedly, the case is a simple one and Judge Silberman reaches the obvious conclusion. I do think the Anti-Tax Injunction Act may provide the SCOTUS an escape hatch for avoiding deciding the case in 2012.

I'm really busy so no deeper analysis from me until next week.

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Misunderstanding The Constitutional Option On The Debt Ceiling

In today's New York Times, Lawrence Tribe misses the mark on the argument about the Fourteenth Amendment's requirement that "The validity of the public debt of the United States, authorized by law, shall not be questioned. Tribe creates a straw man, declaring that "[s]ome have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause." No one has argued that as a general proposition. The argument is that "public debt authorized by law" may cause the debt ceiling to violate the Fourteenth Amendment, and in those circumstances, the President MAY be empowered to ignore the debt ceiling law.

Jack Balkin explains it best:

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Sixth Circuit Upholds Individual Mandate In ACA As Constitutional

Opinion here (PDF). The vote was 2-1. I discuss the dissent on the flip.

First, the court ruled that the individual mandate regulates economic activity:

The minimum coverage provision regulates activity that is decidedly economic. In Raich, the Supreme Court explained that “‘[e]conomics’ refers to ‘the production, distribution, and consumption of commodities.’” Id. at 25 (quoting Webster’s Third New International Dictionary 720 (1966)). Consumption of health care falls squarely within Raich’s definition of economics, and virtually every individual in this country consumes these services. Individuals must finance the cost of health care by purchasing an insurance policy or by self-insuring, cognizant of the backstop of free services required by law. By requiring individuals to maintain a certain level of coverage, the minimum coverage provision regulates the financing of health care services, and specifically the practice of self-insuring for the cost of care. The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan. Thus, the financing of health care services, and specifically the practice of self-insuring, is economic activity.

More on the flip.

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The Warmaking Power, The Constitution And The War Powers Act

Balkinization provides a copy of the 1980 Office of Legal Counsel Opinion (PDF) on the constitutionality of the War Powers Act. Jack Balkin notes this passage:

We agree that the term "hostilities" should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad.[. . . W]e also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by "guerrilla" operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to "command, coordinate, participate in the movement of, or accompany" the forces of the host government in operations against such guerrilla operations. 16 50 U.S.C. § 1547(c).

[. . .] The structure and thrust of those provisions is the "introduction" of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read "introduction" to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense.

(Emphasis supplied.) Obviously, it was the Obama Administration that introduced US military power into Libya. This was no act of self defense. It is beyond debate, in my view, that the 1980 OLC opinion conflicts with the Obama Administration argument that the United States is not engaged in "hostilities" covered by the WPA. More . . .

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"The President Has No Power To Declare A War"

By the Constitution, Congress alone has the power to declare a national or foreign war. [. . .T]he President [. . .] has no power to initiate or declare a war either against a foreign nation or a domestic State. - The Prize Cases

One of the more bizarre aspects of the Obama Administration's arguments regarding the non-applicability of the War Powers Resolution to American involvement in the Libya conflict is the blithe dismissal of the fact that the Constitution does not authorize the President to engage the Nation in war at all. Consider Jack Goldsmith's reaction to the Administration's arguments:

The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits[.]

How about without regard to the Constitution? Of course, this is not new, see (in recent history, see Panama, Grenada.) But it is sad that no seems to even give a passing thought about the Constitution on this issue. More . . .

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Is Arizona's Birther Bill Constitutional?

Arizona's brand of crazy:

Arizona's "birther bill" has passed the state Senate. The bill requires a sworn statement confirming the candidates residents and... drum roll... (sorry for the caps):

A CERTIFIED COPY OF THE PRESIDENTIAL CANDIDATE'S LONG FORM BIRTH CERTIFICATE THAT INCLUDES AT LEAST THE DATE AND PLACE OF BIRTH, THE NAMES OF THE CANDIDATE'S MOTHER AND FATHER, INCLUDING INFORMATION SUFFICIENT TO DETERMINE THE CITIZENSHIP OF BOTH PARENTS, THE NAMES OF THE HOSPITAL AND THE ATTENDING PHYSICIAN, IF APPLICABLE, AND SIGNATURES OF ANY WITNESSES IN ATTENDANCE.
Let's look at the Constitution:

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Can States Make You Eat Broccoli?

The Attorney General of Missouri has filed an amicus brief (PDF) in the case before the Eleventh Circuit, State of Florida, et al. v. Department of Health andHuman Services, et al.. While it repeats the litany of arguments seen previously (and ignores the import of the Necessary and Proper Clause I discussed in this post), it places a great deal of emphasis on the supposed invasion of federal power on state police power:

Can the United States Congress employ an enhanced Commerce Clause authority to mandate expectant mothers undergo amniocentesis testing in order to identify and treat individuals, yet unborn, whose extraordinary medical expenses may someday be cost-shifted onto the society-at-large? To each of these questions, the state of Missouri answers “No.” Such federal authority would require a generalized police power or a separately enumerated power, but is not cognizable under the Commerce Clause.

I agree that the Constitution does not permit the Congress to enact such a law, but for reasons different than those articulated by the Attorney General of Missouri. Indeed, I believe the Attorney General's argument begs the question - does he believe a State could enact such a law? I believe neither a State nor the federal government could do so. The reason is that the constitutional right to privacy and liberty preclude such governmental action, absent a compelling state interest, whether the attempt is by a state government or a federal government. The question I have for the Missouri Attorney General is this - does he believe the State of Missouri has the power to effect such a law? More on the flip.

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The Living Constitution And The War Power

Over the years, I have written often about The Living Constitution. See, e.g. On Constitutional Interpretation: Originalism v. A Living Constitution; Scalia's Nonsense on Originalism,Dred Scott,Originalism and A Living Constitution, Constitutional Interpretation: Originalism v. A Living Constitution, Uncertainty In Life:Justice Souter's Harvard Commencement Address. I spilled tens of thousands of words on the subject, but Justice Souter's commencement address at Harvard last year wonderfully described the philosophy that I believe underpins the Living Constitution idea:

[B]ehind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.

[. . .] If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

Brilliant words from one of the finest of our modern Justices (now about that Twombly decision. . . .) It is important to realize that this concept does not always redound to consequences that we may feel are optimal. One of those for me is the modern understanding of the war power under the Constitution. The words are simple enough. Article I, Section 8 of the Constitution provides:

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