Final Exam

Here is some information about the final exam:

1. It is closed book (CLOSED MODE). You mat not have any written or printed materials with you while taking the examination nor may you consult any written or printed materials before turning in all portions of the examination.

2. You must write your answers to the essay questions on a computer with the current version of Exam 4 already loaded on the computer. Consult with Vickie in the Dean's Office if you have any questions about computer procedures.

3. The exam consists of three essay questions and 25 multiple-choice questions.

4. There are approximate word limits for each essay question. Be sure to observe these word limits. The limits are approximate to enable you to finish a sentence or two. Although you may exceed the approximate word limit by a few words, if you go beyond a few words it will not help your grade and it could adversely affect your grade. If the approximate word limit is 750 words, 765 is okay; 800 is not okay. So again, be sure to observe the approximate word limits for each essay question.

Wednesday's Readings

Here are the cases we will concentrate on this Wednesday:

1. Brown (p. 784)
2. Bolling (p. 787)
3. Reed (p. 813)
4. Craig (p. 818)
5.Rostker (p.833)
6. U. S. v. Virginia (p. 840)

"After A Bitter Election, Unite A Divided Nation Around Federalism"

Here is an article for some light reading over the break. I am not assigning it for the course, just offering it for curious minds.

Link

No Class on Wednesday October 24

I think our final class cancellation (already made-up) will be next Wednesday October 24, 2012.

Additional Reading For Tomorrow

For Wednesday's class, in addition to Assignment no. 17, please read the first few pages of Assignment no. 18 (p. 503-512).

War Powers

Here is the problem with understanding which branch has the war power--the Constitution provides that the war power is a shared power, that both the President and the Congress have a not-so-well defined role.

Art. I, section 8 provides that Congress has the power "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

Art. II, section 2 provides that "The President shall be commander in chief" of the armed forces.

 The Supreme Court is very reluctant to intervene in cases involving war and the use of military power.

As Dean Chemerinsky explains: "[T]he Supreme Court rarely has spoken as to the constitutionality of the president using troops in a war or war-like circumstances without congressional approval.  In fact, the only Supreme Court case to address the issue was in the unique context of the Civil war and the actions of the president to deal with the rebellion. In the Prize cases, the Court ruled that the president gad the power to impose a blockade on Southern states without a congressional declaration. No other Supreme Court case has addressed the constitutionality of presidential war making without a congressional declaration of war."

No Class--Wednesday October 10

I will be in Arizona on a 3-school speaking gig from October 8-10.

I will be speaking on "The United States Senate: Equal Representation, the Movement to Repeal the Seventeenth Amendment, and Federalism."

October 11--Global and Local Perspective on Human Trafficking

In lieu of a make-up class for conflicts that are coming in a few weeks, I am assigning you to attend the Human Trafficking conference: October 11 @ Noon in the Auditorium.

People are not property, and human trafficking is a truly global issue of human rights. Each person owns his or her own body, and I think it is very important to learn about the issues that will be discussed at this conference.

It won't be on the exam, but it is very important that we be aware of this issue.

Hamdi v. Rumsfeld--page 417

Yaser Hamdi is an American citizen who was "residing in Afghanistan in 2001. The Government claims he took up arms with the Taliban and was captured in Afghanistan. He is being held in a South Carolina military prison as an "enemy combatant," but he has never been charged with any crime.

Hamdi's father sought a writ of habeas corpus arguing that Hamdi's "detention in the United States without charges, access to an impartial tribunal, or assistance of counsel" violates Due Process.

The Fourth Circuit agreed with the Government's position and held that Hamdi was not entitled to any type of due process or hearing.

The first issue before the Supreme Court was whether the President ("the Executive") has the authority to detain an American citizen apprehended as an enemy combatant in a foreign country.

Does the President have the inherent executive power to do this?

---Art. II, section 1: "The executive power shall be vested in a President of the United States of America."

--Art. II, section 2: " The President shall be commander in chief of the Army and Navy of the United States."

Or, alternatively, does the President have the authority to do this if authorized to do so by Congress?

What are the two acts of Congress that are relevant?

--18 USC sect 4001 provides that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." [designed to prevent situations such as the Japanese internment camps of WW II] p. 419
\
--AUMF: One week after 9/11, Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons" engaged in terrorism against the United States. p. 417-418

What does Justice O'Connor and the Plurality hold?

p. 420 The plurality held that "once it is sufficiently clear that the individual is...an enemy combatant,"
the President has legislative authority under the AUMF to detain Mr. Hamdi.

Justice Thomas is the 5th vote in favor of the power to detain under the President's 'war powers" under Art. II: "the President has constitutional authority to protect the national security and...this authority carries with it broad discretion....it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive." p. 433

The second issue is what, if any, procedural rights are available to Hamdi.

The Court held that Hamdi was entitled to due process--at the minimum some kind of meaningful factual hearing.

The case was remanded for a determination of exactly what process was due, but before the remand was held the Government and Hamdi reached an agreement: "In exchange for Hamdi being released from custody, he agreed to leave the country, renounce his citizenship, and never to take up arms against the United States."

Nebraska Marriage Amendment--Standing and 11th Amendment

Nebraska State Constitution » I-29

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I-29. Marriage; same-sex relationships not valid or recognized.

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Source

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416. 

Pls. were gay couples who challenged only the second sentence of the Marriage Amendment. They sued the Nebraska Attorney General to enjoin his enforcement of the second sentence of the law.

Nebraska did not recognize any kind of civil union even before the Marriage Amendment passed. The Attorney General was not involved in any present action to enforce the second sentence.


Do Pls. have standing to challenge the amendment?


Does the 11th Amendment bar this suit against enforcement?

This Week

We are having a special day on Friday.

First, as we discussed, I am assigning as a make-up class attendance at the Lane Foundation Lecture by Paul Clement at Noon in the Auditorium.

Second, we are having a joint class on Friday from 2:15 until 3:30 in the Auditorium. Paul Clement will be our guest and he will share his thoughts about important Con Law cases and answer your questions.

Third, here are the assignments for Wed and Thurs of this week (notice I corrected a typo on the syllabus that relates to assignment no. 12:

Wednesday September 26:   11 Casebook p.208-217; Supp. p.39-53; Rotunda, The Spending Clause (link)

Thursday September 27:      12 Casebook p. 238-271

Class Cancelled Tomorrow--Wednesday September 19

I am stuck overnight at the airport due to bad weather on the East Coast.

So class is cancelled Wednesday Sept. 19.

Sorry. I hate air travel!

Lane Lecture-Friday Sept. 28 at Noon

 Paul Clement will deliver the Lane Lecture at the Law College on September 28th at Noon in the Auditorium.  Clement is the former United State Solicitor General, 2005-2008, and now practices in DC at Bancroft PLLC.   He has a Supreme Court practice, which included representing the opponents of the health care reform act and arguing the case before the Supreme Court last year.    Here's some more info on him.

http://www.bancroftpllc.com/professionals/paul-d-clement/

http://en.wikipedia.org/wiki/Paul_Clement

http://nymag.com/news/features/paul-clement-2012-3/

 

I am assigning this Lecture for our Con Law I class. We will cancel a class later in the year to make up for this extra session. General Clement is one of the leading constitutional law lawyers in the country, and has been involved in some of the most important constitutional cases. This is a very special opportunity for Con Law students, and I am sure you will learn a lot from Mr. Clement.

John Roberts on Umpires and Judges

I am a big fan of the “great and glorious game,” as Commissioner Bart Giamatti once described baseball, the game he (and I) both love. Because I am both a baseball fan and a law professor, Chief Justice John Roberts grabbed my attention when he compared the role of a judge to that of an umpire during his confirmation hearings before the Senate Judiciary Committee:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Of course, there is more than one kind of umpire, and Sen. Cornyn was a quick to pick up on this. Referring to a post he had read somewhere in the blogosphere, Sen. Cornyn recounted the “old story” about three different kinds of umpires explaining their approach to calling the game:

First was the umpire that says, 'Some are balls and some are strikes, and I call them the way they are.' The second umpire says, 'Some are balls and some are strikes, and I call them the way I see them.' The third said, 'Some are balls and some are strikes, but they ain’t nothing till I call them.'

When asked which kind of umpire was his role model for serving as a judge, Roberts hit the pitch out of the park:

Well, I think I agree with your point about the danger of analogies in some situations. It’s not the last, because they are balls and strikes regardless, and if I call them one and they are the other, that doesn’t change what they are. It just means that I got it wrong. I guess I like the one in the middle because I do think there are right answers. I know that it’s fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations, and because of that it should affect how we approach certain other issues. That’s not the view of the law that I subscribe to.
I think when you folks legislate, you do have something in mind in particular, and you put it into words, and you expect judges not to put in their own preference, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute.
I think when the Framers framed the Constitution it was the same thing, and the judges are not to put in their own personal views about what the Constitution should say, but they are supposed to interpret it and apply the meaning that is in the Constitution, and I think there is meaning there, and I think there is meaning in your legislation, and the job of a good judge is to do as good a job as possible to get the right answer.
Again, I know there are those theorists who think that is futile, or because it is hard in particular cases, we should just throw up our hands and not try in any case, and I do not subscribe to that. I believe that there are right answers, and judges, if they work hard enough, are likely to come up with them.

Which kind of umpire do you think a judge should strive to be like? Which kind of umpire is the model for an "activist" judge? What is the difference between a judge who says he "calls them as they are" and one who says he "calls them as he sees them." Is one more humble than the other? Is humilty a vice or a virtue in a judge?

Justice Scalia and Justice Breyer

Debate Originalism and the Living Constitution

Here is the link.

This is a classic discussion between two sitting Supreme Court Justices.

 I am assigning this C-Span video for you to view. You should do so sometime before the end of the first week of class,

I will be cancelling a few classes this semester in order to speak at other law schools and at the Nebraska Bar meeting, and this video will be in lieu of a make-up session.

Legal Services Corp Case

The LSC is a government agency that "distributes funds appropriated by Congress to eligible local grantee organizations" to fund legal services for the poor. The law provides that the funds may not be used "if the representation involves an effort to amend or otherwise challenge existing welfare law."

Is this case more like Rust (funding private grantees to deliver government speech or government services) or more like Rosenberger (funding that facilitates private speech, in this case the private legal arguments of clients challenging governmental restrictions on welfare programs)? See page1619.

In a lawsuit challenging governmental restrictions in a welfare program, which lawyer delivers the government's legal viewpoint--the government's lawyer or the LSC-funded lawyer representing the welfare applicant? See id.

See p. 1619-1620:

1. " The private nature of the speech involved here, and the extent of the LSC's regulation of private expression, are indicated further by the circumstance that the Government seeks to use an existing medium of expression and to control it, in a class of cases, in ways which distort its usual functioning."

2. "Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of attorneys."

Now apply this to the Promise Scholarship Program in Locke v. Davey. Is this a pool of funds designed to facilitate private educational speech or is it government speech? Is the restriction against funding "devotional theology" majors a viewpoint restriction on private educational speech? Does it "distort" an "existing private medium of expression?"

Is Davey more like Rust or more like Rosenberger, Finley and Velazquez? If Rehnquist was really serious in avoiding a free speech issue in Davey, his job was to analyze this cases and persuasively argue that Davey was more like Rust than like the others. Did he do so?

Our Course in the News

Today's Wall Street Journal (link):

Catholics in Court

The religious-liberty lawsuit against ObamaCare is historic. 

 

 The 12 federal lawsuits filed Monday by 43 Catholic plaintiffs against the Obama Administration's birth-control mandate are a big political and Constitutional moment. The nation's most prominent Catholic institutions are saying that the same federal government they have viewed for decades as an ally in their fight for social justice is now a threat to their religious liberty.

This can't have been an easy decision, especially because the plaintiffs are hardly founding members of the tea party. They include the Archdioceses of New York and Washington but also Catholic University in Washington, D.C., and even the University of Notre Dame.

The famously liberal Notre Dame gave President Obama an honorary degree in 2009 despite his support for abortion rights. At the time, Notre Dame President John Jenkins applauded Mr. Obama's "willingness to engage with those who disagree with him and encourage people of faith to bring their beliefs to the public debate."

So much for that. The lawsuit signals that far from engaging with "those who disagree," Mr. Obama has rebuffed Catholic leaders in their attempt to work out a compromise over the Administration's mandate that all insurance plans offer contraception and sterilization services, including abortifacients. "If the government wants to provide such services," Father Jenkins said in a statement Monday, "means are available that do not compel religious organizations to serve as its agents."

 But the Administration deliberately rejected any such means, exempting a religious employer only if it is a nonprofit whose goal is the "inculcation of religious values" and which primarily employs and serves people who share the same values. That leaves out legions of parochial schools, universities, hospitals, soup kitchens and other charities whose beliefs are also threatened by the mandate.

The Department of Health and Human Services offered a fig leaf in February, foisting the mandate onto insurance companies rather than religious employers. But the insurers would pass along the mandate's cost to the employers in any case, and institutions like Notre Dame that self-insure would still be subsidizing policies that violate core church teaching. As Cardinal Timothy Dolan of New York put it, this so-called "safe habor" effectively gives religious institutions "a year to figure out how to violate [their] consciences."

The suit charges that the mandate violates the First Amendment's Free Exercise Clause, as well as the 1993 Religious Freedom Restoration Act, which requires that the federal government meet a higher legal standard for any law that interferes with religious liberty. "If the Government can force religious institutions to violate their beliefs in such a manner," argues the Notre Dame suit, "there is no apparent limit to the Government's power."

The Administration and Democrats have tried to obscure the real nature of this dispute by claiming that the church wants to deny contraception to women. But birth control will continue to be widely available and easily affordable no matter what the legal outcome. Nine out of 10 health plans currently provide it.

The real and startling question at issue is whether the entitlement state can pound everything, including religious belief, to its political will. Few previous Administrations would have dared such a high-stakes Constitutional battle, but Mr. Obama's willfulness reveals the change that is taking place in liberal politics.

 Once upon a time the political left viewed Catholics and especially the bishops as their allies in using government to create more equal opportunity and redistribute income. But today's Democratic Party puts a higher cultural value on sexual politics and expanded reproductive freedom. We trust the courts will instruct the Administration that the Constitution still puts religious liberty first.

Class Schedule

I checked with Vickie this morning. Here is the remainder of our schedule.

We meet every day this week.

Monday May 28--No class Memorial Day Holiday

Tuesday May 29--Regular class

Wednesday May 30--Regular Class (last scheduled class)

Thursday May 31--No class scheduled. Study for Final

Friday June 1--Final Exam (8:30 AM)

For Monday May 21

Let's start Monday's class with a discussion of education and religious liberty and justice from a Rawlisian consensus from behind the "veil of ignorance." Scroll down to next post.

We will break up into small groups and, writing from a blank slate, try to reach a consensus as to how to structure the role of government in the new society we are creating.

You won't know what your situation will be like in this new society.

You might be a committed secularist or Christian or Jew or Buddhist or atheist or some other religious or non-religious believer.

You may be rich or poor or somewhere in between.

Whatever your beliefs, you love your children and want them to be educated about what is true and good and beautiful. And you also understand that we do not agree about many of these truths, or indeed, even about the nature of reason and rationality.
 
 Consider, for example, brilliant scholars such as Profs. Ackerman and Johnson and their very different worldviews. If you and they had to design an educational system from "behind the veil of ignorance" how would you reach a consensus about how to design it?

A Call for Religious Freedom

Here is the text of George Weigel's recent Commencement Address, delivered at Benedictine College, entitled "Defending Religious Freedom in Full: A Generation's Challenge."It has generated a great deal of buzz lately.

Link

Today (Wed. May 16)

Let's start today's class with a discussion of the John Spokes hypo in Handout 2.

Incorporation of Individual Liberty

I think I went too quickly over the issue of Incorporation of the EC yesterday.

I want to start today's class by going back over the theory of incorporation, which is that individual liberty interests from the Bill of Rights are "incorporated" against the states because these are fundamental individual liberties.

However, in many EC cases the state law being challenged as a violation of the EC is not one that deprives anyone of liberty. Indeed, it often seems as though the court is being asked not to advance individual liberty but to restrict individual liberty in order to carry out some structural rule concerning state power (such as Lemon's rule that laws must have a "secular purpose"--this doesn't ask "whose liberty is being restricted, but rather "does the state have the power to enact laws if the legislature lacks a "secular purpose').

Think about Everson, Zorach, and the cases we read for today. Ask yourself is the EC being brandished to protect liberty, or to take liberty away?

New Look For Blog

I decided to do a little interior decorating and gave the blog a new template.

I like it!

Handouts Available

The Handouts referred to in the list of Assignments are available in the Handout Racks near the South Side faculty Suite.

Obamacare Arguments Explained

Balkin

Volokh/Barnett

Recent Equal Access Case Filed

From RelgionClause blog:

Suit Filed Over Library's Room Use Policy

The religious education and advocacy organization, Liberty Counsel, last month filed a federal lawsuit against the Seaside, Oregon public library after being denied use of a library meeting room for a planned program on educating children from a Biblical perspective.  The complaint (full text) in Liberty Counsel, Inc. v. Seaside Public Library Board of Trustees, (D OR, filed 2/9/2012), alleges that the library's room-use policy violates the 1st Amendment's free expression and establishment clauses, as well as the equal protection clause of the 14th Amendment. Under the library's rules, rooms are available for non-profit groups to use, but use for religious services or proselytizing is not permitted. The Astoria (OR) Daily Astorian reports on the lawsuit.

Montana Constitution--Every 20 Years the People Look Under the Hood

Article XIV Constitutional Revision

Section 1. Constitutional convention. The legislature, by an affirmative vote of two-thirds of all the members, whether one or more bodies, may at any time submit to the qualified electors the question of whether there shall be an unlimited convention to revise, alter, or amend this constitution.

Section 2. Initiative for constitutional convention. (1) The people may by initiative petition direct the secretary of state to submit to the qualified electors the question of whether there shall be an unlimited convention to revise, alter, or amend this constitution. The petition shall be signed by at least ten percent of the qualified electors of the state. That number shall include at least ten percent of the qualified electors in each of two-fifths of the legislative districts.
(2) The secretary of state shall certify the filing of the petition in his office and cause the question to be submitted at the next general election.

Section 3. Periodic submission. If the question of holding a convention is not otherwise submitted during any period of 20 years, it shall be submitted as provided by law at the general election in the twentieth year following the last submission.

Section 4. Call of convention. If a majority of those voting on the question answer in the affirmative, the legislature shall provide for the calling thereof at its next session. The number of delegates to the convention shall be the same as that of the larger body of the legislature. The qualifications of delegates shall be the same as the highest qualifications required for election to the legislature. The legislature shall determine whether the delegates may be nominated on a partisan or a non-partisan basis. They shall be elected at the same places and in the same districts as are the members of the legislative body determining the number of delegates.

Section 5. Convention expenses. The legislature shall, in the act calling the convention, designate the day, hour, and place of its meeting, and fix and provide for the pay of its members and officers and the necessary expenses of the convention.

Section 6. Oath, vacancies. Before proceeding, the delegates shall take the oath provided in this constitution. Vacancies occurring shall be filled in the manner provided for filling vacancies in the legislature if not otherwise provided by law.

Section 7. Convention duties. The convention shall meet after the election of the delegates and prepare such revisions, alterations, or amendments to the constitution as may be deemed necessary. They shall be submitted to the qualified electors for ratification or rejection as a whole or in separate articles or amendments as determined by the convention at an election appointed by the convention for that purpose not less than two months after adjournment. Unless so submitted and approved by a majority of the electors voting thereon, no such revision, alteration, or amendment shall take effect.

Section 8. Amendment by legislative referendum. Amendments to this constitution may be proposed by any member of the legislature. If adopted by an affirmative roll call vote of two-thirds of all the members thereof, whether one or more bodies, the proposed amendment shall be submitted to the qualified electors at the next general election. If approved by a majority of the electors voting thereon, the amendment shall become a part of this constitution on the first day of July after certification of the election returns unless the amendment provides otherwise.

Section 9. Amendment by initiative. (1) The people may also propose constitutional amendments by initiative. Petitions including the full text of the proposed amendment shall be signed by at least ten percent of the qualified electors of the state. That number shall include at least ten percent of the qualified electors in each of at least one-half of the counties.
(2) The petitions shall be filed with the secretary of state. If the petitions are found to have been signed by the required number of electors, the secretary of state shall cause the amendment to be published as provided by law twice each month for two months previous to the next regular state-wide election.
(3) At that election, the proposed amendment shall be submitted to the qualified electors for approval or rejection. If approved by a majority voting thereon, it shall become a part of the constitution effective the first day of July following its approval, unless the amendment provides otherwise.
History: Amd. Const. Amend. No. 37, approved Nov. 5, 2002.

Section 10. Petition signers. The number of qualified electors required for the filing of any petition provided for in this Article shall be determined by the number of votes cast for the office of governor in the preceding general election.

Section 11. Submission. If more than one amendment is submitted at the same election, each shall be so prepared and distinguished that it can be voted upon separately.

Done in open convention at the city of Helena, in the state of Montana, this twenty-second day of March, in the year of our Lord one thousand nine hundred and seventy-two.

Wednesday Jan. 25--Federalism

Here are some questions I would like you to think about for this week's class.

1. What exactly is federalism under the U S Constitution?

2. Which provisions or structural designs of the Constitution  provide for federalism?

3. What are the benefits and the costs of federalism? What is the difference between centralized authority and local authority?

4. Is the original balance between centralized authority and state authority still recognized? Which provisions or judicial decisions are responsible for shifting the original design?

5.In Federalist No. 45 Madison said:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Re-write Madison's description to describe the relative powers of the federal government and the states in the the times or our lives.

6. What, if anything should we do to restore the originally designed balance of power?