Executive Orders

The President's role is not to enact laws, nor to repeal or amend laws already enacted, but rather to  "take care that the laws be faithfully executed."

Consiider this hypothetical:

A conservative Republican President has repeatedly asked a Democratic-controlled Congress to pass a law repealing the capital gains tax. The President believes this is a form of double taxation, and is therefore unfair to investors and harmful to the economy.

When Congress refuses to act, the President signs an executive order deferring enforcement of the capital gains tax and directing the IRS to issue "blue cards" to investors suspending their obligation to pay capital gains taxes.

How should we react to this use of executive orders by the President?

Lawrence and "Autonomy of Self"

Justice Kennedy, writing for the majority in Lawrence, asserts that "Liberty presumes an autonomy of self.." (p. 600).

Really? Constitutional liberty? Or philosophical liberty?

He notes that this autonomy of self includes such things as freedom of thought, belief, expression, and certain intimate conduct.

What about autonomy of self in matters of business and contract--the right of consenting adults to enter into contracts concerning employment, the right of the individual to decide whether to purchase health insurance (and what kind of policy to purchase), the right of the owner of a business to decide how to run her business, who to hire, how much to pay, whether to offer health insurance or not to the consenting adults whom she employs?

What about the autonomy to decide how to spend your own money, without government constantly taxing it away from you and giving it to others?

Lawrence is to sexual laissez faire whet Lochner was to economic laissez faire.

Just substitute "right to consensual sex" for "right of consensual contract" and the opinions are identical.

Should we go back to Lochner and use SDP to strike down the Welfare/Regulatory State?

Lawrence and Legitimate State Interests

In Lawrence, the State of Texas claimed that public morality provided a rational basis for its law forbidding homosexual anal sodomy. The Court held that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." (edited from this edition of casebook)


Suppose instead of relying on public morality, the State of Texas had argued that the sodomy law furthers a strong governmental interest in public health? Is public health a rational basis for upholding a law prohibiting conduct that has serious health consequences?




Consider the following link from the Center for Disease Control:



1. HIV/AIDS and Men Who have Sex With Men


Here is an excerpt from this CDC study:



"The term men who have sex with men (MSM) refers to all men who have sex with other men, regardless of how they identify themselves (gay, bisexual, or heterosexual). In the United States, HIV and AIDS have had a tremendous impact on MSM. Consider these facts:


* AIDS has been diagnosed for more than half a million MSM. Over 300,000 MSM with AIDS have died since the beginning of the epidemic.


*MSM made up more than two thirds (68%) of all men living with HIV in 2005, even though only about 5% to 7% of men in the United States reported having sex with other men....



*For complex reasons, HIV/AIDS continues to take a high toll on the MSM population. For example, the number of new HIV/AIDS cases among MSM in 2005 was 11% more than the number of cases in 2001. It is unclear whether this increase is due to more testing, which results in more diagnoses, or to an increase in the number of HIV infections. Whatever the reasons, in 2005, MSM still accounted for about 53% of all new HIV/AIDS cases and 71% of cases in male adults and adolescents.

See also CDC Basic AIDS Statistics information (good link).

Suppose Texas enacts its law prohibiting anal MSM conduct. Assuming a rational basis test applies, is the law rationally related to the state's legitimate interest in protecting public health by regulating this type of conduct?

Apart from the liberty interests involved (consenting adults right to contract vs. consenting adults engaged in sexual relationships), the majority opinions in Lochner and Lawrence are strikingly similar. Both reject public morality (social justice in the one case, and sexual morality in the other) as legitimate state interests for interfering with "liberty;" both refuse to recognize legitimate public health interests as justifications for the laws invalidated; and both reflect the ideological preferences of the "lawyer class" at the time the decisions were handed down.In Lochner, the Court seemingly enacted "Mr. Herbert Spencer's Social Statics" as a constitutional right, and in Lawrence the Court seemingly enacted Mr. Vatsyayana's Kama Sutra as the law of the land.

Chief Justice Roberts on Politicization of the Court

Remember when CJ Roberts visited earlier this year, and he said the Court is not a political body, it is an objective body of lawyers. He blamed the Senate for politicizing the judicial confirmation process.

I hope you didn't miss Justice Scalia's views about this issue--he blames the Court (p. 591); he says when the Court interprets the Constitution based upon the ideological or political or moral preferences of the Justices, rather than upon the text and historical understanding of the Constitution, the Court brings political pressure upon itself. If the Court acts as a politcal lawmaking body, it should not complain or be surprised when it is treated as a political lawmaking body.

I think Scalia hits the nail on the head with this observation!

Class Schedule--Last Trip Nov. 5

We have 7 classes that need to be canceled because of our 60-minute classes.


I will be speaking at a number of other law schools on the Hobby Lobby decision this semester, and at least so far these are the Con Law classes I am canceling:

1. Wed. Sept. 17 (I will be speaking at U Pittsburgh Law and Duquesne Law)
2. Wed. Oct. 15 (I will be speaking at Brooklyn Law)
3. Wed. Oct. 22 (Minnesota Law)
4. Thurs. Oct. 23 (St. Thomas Law)
5. Wed. Nov. 5 (Pace Law School)

This trip to Pace is my last trip of the Semester.

By the way, I will be doing a STIR talk on Hobby Lobby here in November.

Texas New Abortion law

Recently, the state of Texas enacted a law regulating abortion. The law has a number of provisions, but I want to focus on 2 of these provisions.

First, the law requires that a physician performing or inducing an abortion "have admitting privileges...at a hospital no more than thirty miles from the location at which the abortion is performed or induced."

Second, the law prohibits "abortion at or after 20 weeks post-fertilization."

Are these laws permissible under Casey and the "undue burden" test?