Constitutional Law, Professor Klarman, December 17, 2008 Question 1. Authority to Act. Congress has the constitutional authority to pass this resolution (Article I §8). It is unclear, however, whether (1) the resolution authorized the indefinite detention of thousands of citizens and, if not, (2) whether the President has the inherent power to detain. While Hamdi indicated that the AUMF, which is substantially similar to this resolution, satisfied §4001(a), the Court also emphasized that Congress believed that detaining individuals who fought the US in Afghanistan was “necessary and appropriate.” The current policy is outside the realm of congressional intent. Textually, the word “all” seems to indicate broad authority, but the words “necessary” and “appropriate” indicate that Congress didn’t give the President Caesarlike powers. And if it did, such an authorization lacks an “intelligible principle.” J.W. Hampton. While nondelegation is near fiction, the Court has refused to explicitly reject the doctrine. Whitman. If the Court decides that the delegation might violate nondelegation, constitutional avoidance canon should lead the Court to narrowly interpret the resolution. Hamdi doesn’t decide whether the President has the inherent power to detain enemy combatants. While the government might argue that the policy is in the “twilight zone” of congressional silence, §4001(a) puts the policy in Category III (Youngstown, Jackson), since it explicitly prohibits detaining citizens absent an Act of Congress. Curtiss-Wright, which stands for the proposition that the President has broad inherent powers in foreign affairs (though that was undercut somewhat in Medellin), is inapplicable. This action is not purely about foreign affairs; rather it concerns the detention of citizens within our borders. Moreover, Article I §8 reserved some role for Congress in “repel[ing] invasions.”
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Based on Scalia’s dissent in Hamdi and an informal prediction based on Padilla (dismissed on jurisdiction), it’s hard to see the Court sustaining the President’s actions. Commandeering. Even if there is constitutional authority for the President to act, his “commandeering” of local police officers violate the 10th Amendment. The trinity of cases (NY, Printz, and Condon) hold that the 10th Amendment is violated when the federal government enlists state officials to perform affirmative duties. In Printz, which is most analogous, Scalia focused the enlistment of state officers to administer the Brady Act, which required them to make policy judgments. In this case, state officers are similarly asked to make policy judgments—whether someone “appears to be of Middle Eastern descent.” To be sure, this argument is form over substance, since the President could, in theory, deploy the national guard, which would arguably be more damaging to states’ rights. That said, this argument should appeal to conservatives on the Court, even Thomas, who in Raich chose federalism over the underlying issue of marijuana. EPC Race. Obama’s detention policy, which is state action, violates the Equal Protection Clause. The policy creates a facial classification based on national origin (and race), and thus must be reviewed under strict scrutiny. Korematsu (ironically). Under strict scrutiny, the government has the burden to persuade the court that its classification is necessary to achieving a compelling government interest. National security is certainly a compelling interest. While all laws are to some extent both over- and underinclusive (and survive minimum rationality review), the extent to which this detention policy is under- and overinclusive demonstrates that it’s not necessary to achieving the government’s objective. The law is wholly overinclusive because it detains all men of Mideast descent because a few might be terrorists; it’s underinclusive because some men not of Mideast descent may be agents of Al Qaeda. Because the President’s order was
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issue on the evening of 1/20, it clearly failed to consider alternative measures that might be more narrowly tailored. Moreover, the President did not likely fully assess the necessity of total detainment to preventing another attack. To support our argument, we should obtain statements/studies following both 9/11 and 1/20 that show racial animus against ArabAmericans, though Korematsu indicates that evidence of prejudice is not alone sufficient. EPC Sex. The policy may also be challenged as a facial sex classification based archaic stereotypes that men are more dangerous than women. Under intermediate scrutiny, the government must prove that its policy is substantially related to an important government purpose. National security is an important purpose, but like the race analysis, the underinclusiveness of the policy (only detaining men) shows that it’s not substantially related to national security. Traditionally, while the Court defers to government classifications based on biological differences (Nguyen), classifications based on stereotypes are invalidated, even if statistics show that the classification is rational (Boren, US v. Virginia). The policy’s classification perpetuates the stereotype that men are terrorists while women are not. DPC Liberty. The indefinite detention of citizens violates procedural and substantive due process. Where’s deprivation of life, liberty, or property, the sufficiency of process is evaluated under the Matthews three-prong standard. Without going into depth, it’s clear that the importance of the private interest (freedom) and the high risk of error outweighs any government interest in eliminating pre-detainment process and providing no procedural safeguards postdetention. This is supported by Hamdi, where the Court held that detainees must be afforded a fair opportunity challenge their classification. Finally, liberty from imprisonment is both “carefully described” and “deeply rooted in the this Nation’s history,” and thus should be a fundamental right, the infringement of which warrants heighten review. Glucksberg. For the
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reasons stated above, the government fails to show that the policy is necessary, even if its interests are compelling. Conclusion. From a legal perspective, this policy is unconstitutional on many levels. The wisdom of challenging this policy in court is another matter. Strategically, we should only litigate if our opposition to the policy is shared by large portions of the country. Without popular support, we’ll probably lose in Court; and even if we won, we’d likely face massive backlash. If our position does have popular support and we prevail, then heeding the lessons from Roe and Brown , we must continue our fight in the political branches rather than solely relying on Courts for protection.
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Question 2. (1). Both cases highlight the Court’s weakness and devices used by Justices to maintain the appearance of strength. In Marbury, Marshall, recognizing that any writ of mandamus would be ignored, drafted a strategic opinion to dodge the conflict on jurisdictional grounds. In Brown II, knowing that southern states would resist, Warren drafted an ambiguous opinion that district courts act with “all deliberate speed.” While Marbury was successful, Brown II was perceived to be a major victory for segregationists. (2). Dred Scott is a quintessential example of where the Court tried unsuccessfully to resolve a deeply controversial issue. By declaring the Missouri Compromise unconstitutional, the Court helped set the Nation on a course for civil war. Perhaps realizing its mistake in Dred Scott, the Court in Naim decided to avoid the controversial issue concerning miscegenation laws, accepting instead humiliation and outright defiance. Interestingly, as Roe shows, the Court seems to have a selective memory on its ability to solve social problems. (3). Both decisions arguably hurt the intended beneficiaries. Roe has been credited with spawning the national anti-choice movement and halting the liberalizing trend in state legislatures. Similarly, Goodridge raised the salience of gay marriage, leading to numerous state ballot initiatives, which possibly lead to Bush’s reelection in 2004. Yet it would be a mistake to discount the important symbolic/legitimizing/empowering aspects of those decisions. (4). The Slaughter House Cases’s nullification of the privileges or immunities clause can be seen as a way to protect federalism and states’ rights by limiting the power of federal courts to review state regulations. Wickard, however, illustrates the broadening of federal powers under the Commerce Clause, permitting the federal regulation of private (intrastate) activities so long as the activity, when aggregated, exerts a substantial effect on interstate commerce.
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(5). Morrison reaffirmed the central holding of the Civil Rights Cases: Congress may not use its §5 powers to regulate private actors. Yet it’s not obvious that Congress was regulating private actors in either case. States grant licenses to public accommodations, and arguably, the private right of action in the VAWA was necessary because of the State’s systematic failure to protect victims of gender-motivated violence. (6). In Jenkins, the Court substantially limited the ability of district courts to order the state to provide remedial funds to victims of unconstitutional desegregation, which it had authorized in Milliken II. In Croson, the Court applied strict scrutiny to invalidate a local setaside law, which was modeled on a federal set-aside law that was constitutional (Fullilove). Taken together, the Court appears to be saying that redress for past discrimination cannot continue indefinitely. (7). Both cases are examples of the Court applying minimum rationality with some bite. In the post-Lochner world, virtually all economic regulations are upheld with no review. Yet Romer and Reed seem to indicate that social regulations are not afford the same deference (though technically the Court applies the same test). Perhaps the Court should explicitly adopt Thurgood Marshall’s spectrum of deference rather than apply “rigid” tiers of scrutiny arbitrarily. (8). The two cases represent opposite poles of what may constitute sex discrimination. Lewin rejected a ban on same-sex marriage partly because it created a sex classification (males only can marry females). The majority in Aiello refused to find sex discrimination because the policy divided recipients into two groups: pregnant women and non-pregnant persons. If the reasoning in Aiello remains good law, it undercuts the argument that a gay marriage ban is sex discrimination.
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(9). While City of Boerne limited Congress’s power to enact legislation pursuant to §5, Dole granted Congress wide latitude to influence state regulations via conditional spending. Yet if we view City of Boerne as, at least partly, a product of the post-Lopez federalism revolution, Dole’s expansive view of permissible spending for the “general welfare” is ripe for curtailment. (10). There is “zone of twilight” in instances of congressional silence, where Congress’s indifference may either “enable” or “invite” the President to act. Youngstown (Jackson). Ex parte Milligan seems to suggest, at least in the civil war context, that congressional inaction does not mean that the President has the inherent authority to set up military commission. (11). Curtiss-Wright is cited for the proposition that the President has broad inherent powers in the area of foreign affairs. Yet in Medellin, interestingly (but not surprisingly), conservative Justices limited inherent presidential powers, at least with respect to the President’s right to implement treaties without congressional approval. Practically, however, the President’s foreign affairs powers are usually upheld, either because of outright deference or lack of justiciability (standing/political question doctrine). (12). These opinions illustrate that Scalia does not use original understanding consistently. In Printz, Scalia invokes (dubiously) original understanding to show that the framers did not envision enlisting state officials to administer federal programs, and invalidates the Brady Act. In Hamdi, Scalia does not appear to use original understanding, and instead dissents on the textual ground that the political branches should have invoked the Suspension Clause. (13). Both opinions may be justified on political process grounds, which holds that courts can and should make the system more democratic. In Reynolds, the Court invalidated malapportionment in Alabama, articulating a principle of one person, one vote. Since taxation is
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checked by people who elect their officials, the McCulloch Court invalidates Maryland’s tax because the national bank lacks the protection provided by the political process. (14). Because text, original understanding, and precedent did not support overturning Plessy, Jackson would have grounded Brown as a political, rather than legal, decision. Similarly, in Korematsu, Jackson felt that the majority was being disingenuous in finding (implicitly at least) that the Constitution condones the military’s actions. While Jackson in Korematsu believed that the Court should’ve stayed neutral, Jackson appears to value transparency in the Court’s decision-making. (15). In Fritz, applying minimum rationality, the Court was uninterested in the determining the “actual purpose” of Congress’s legislation, finding it sufficient that there were “plausible reasons for the law.” Using intermediate scrutiny, the Webster Court upheld a social security law by determining that unlike Goldfarb, the “purpose” of the law was to provide redress to women for past discrimination (but this is far from obvious). Both cases were highly deferential, though the Court purportedly used different standards.
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Question 3. Scalia Originalism indeterminate. To Justices Scalia and Thomas (and the like), originalism is a cure-all drug, remedying “judicial activism” and the countermajoritarian difficulty by forcing judges to mechanically follow the will of the law’s enactor. But because the text and original intent is indeterminate, Scalia and Thomas apply originalism selectively and hypocritically (see, e.g., Bush v. Gore and Grutter), thus draining any medicinal value from the doctrine. On the issue of indeterminacy, first, the framers were a diverse group and had different interests and intentions. Hamilton, for example, believed that Congress has unconstrained power to spend for the general welfare; Madison believed that Congress’s spending power is limited to those powers enumerated in the Constitution. Butler (Hamilton won). Second, it is likely that the framers simply didn’t contemplate many of today’s constitutional questions. There is no reason to think that the framers supplied answers to constitutional questions posed by the Internet or wiretapping. Framers’ Intent. Additionally, there is evidence that the framers intended for future generations to interpret the Constitution according to either evolving social mores or natural law. Calder v. Bull (Chase). Strict originalists like to dismiss the Ninth Amendment as an ink blot. But the Ninth Amendment clearly states that there are “non-enumerated rights” which shall not be denied by the Constitution. Arguments that the Amendment was a delegation to Congress are not persuasive, since it is widely accepted that the first eight Amendments are judicially enforceable. Dead Hand. Originalists like to argue that the Constitution was purposely created to bind the nation’s hands. While Ulysses might have intended to bind his own hands, this analogy fails
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because the framers bound the hands of subsequent generations. The “dead hand” problem might be overcome if we interpret the Constitution at a sufficiently high level of generality, or if we engage in “translation.” (Lessig). But at such high levels, originalism collapses into nonoriginalism, since anything may be justified. Results Matter. Finally, originalism (by itself) should be rejected because a combination of other interpretive tools reach more just results. For example, to be taken seriously, a theory of constitutional interpretation must accommodate the result in Brown. Yet the text of the 14th Amendment fails to mention race. Additionally, all evidence indicates that the authors of the Amendment meant to only protect civil (rather than political or social) rights. Judge McConnell’s argument is not convincing.
Ely Not in Constitution. While Ely’s political process theory has appeal, the theory is not grounded in the Constitution. Rather, one can argue persuasively that the Constitution was purposefully crafted to impede principles of democracy (state legislators used to elect US Senators). For example, in addition to prohibiting Congress to bar the importation of slaves before 1808, Article V also prohibits any future Amendment that tries to deprive States of “equal Suffrage in the Senate” without the State’s consent. Thus, the Constitution actually mandates entrenchment of the worse kind, since no State will consent to losing its Senators (even though voters in Wyoming have 57 times the voting power of voters in California). Circular. Political process theory is supposed to help courts avoid making substantive judgments concerning when (and at what level) to apply heighten review. Yet to determine whether there is a flaw in the system necessarily requires courts to first make a substantive
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judgment as to the appropriate amount of power the group deserves. For example, aliens might deserve heighten review because they are disadvantaged in the political process (no vote). Yet maybe they should have less influence/power, since perhaps aliens, being citizens of other nations, have less at stake in charting this nation’s course. Infinite Regression. To the extent that political process theory is suppose to split the difference between originalism and nonoriginalism, when taken to the extreme, the theory knows no bounds, and may be used to justify any type of judicial intervention. Is it, for example, a flaw in the political process that women vote for anti-choice candidates or for poor people to vote for Republicans? Wrong Solution. Finally, even if there is a flaw in the political process, it’s not obvious that the remedy should be a more active judiciary. Why not “fix” the flaw in the system? Although Ely might argue that entrenchment (both agency and principal) prevents the system from fixing itself, there is no evidence that courts can do better. Partisan gerrymandering, for example, is largely non-justiciable (though Kennedy is holding out hope) because courts can’t articulate a workable standard. Vieth. Thus perhaps what some think to be a flaw in the system isn’t really a flaw.
Douglas Countermajoritarian. To the extent that one believes that political accountability and democratic control is advantageous, Douglas’ method of interpretation is anti-democratic. While Douglas may argue that legislatures aren’t democratic or accountable (partisan gerrymandering), legislators are at least comparatively more democratic than federal judges.
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Courts cannot be trusted. Douglas might argue that democracy is overrated, and that certain rights shouldn’t be left to majority vote. While undoubtedly true, it’s not clear that courts can, or should, indentify what rights are to decided democratically and what rights by “philosopher kings.” The Court’s career batting average is not great. In Dred Scott, the Court protected the “rights” of slave-owners; in the Civil Rights Cases, the Court thwarted legislation to protect blacks from discrimination; in Lochner, the Court repealed a state law protecting labor etc. Rule of Law/Legitimacy. Additionally Douglas’ method of interpretation undermines rule of law, which is rooted in predictability and stability in legal interpretation. While purported originalists are as guilty as nonoriginalists, consistent “flip-flopping” undermines the rule of law and the legitimacy of the Court. The why the Court articulate a per se rule of one-person, onevote in Reynolds was to maintain its legitimacy by avoiding the appearance of “making stuff up” according to one’s politics. Defeat Purpose of Constitution. Finally, Douglas’ method of interpretation arguably defeats the Constitution’s embrace of incrementalism. Because the framers anticipated that the Constitution may become outdated, they provided an amendment mechanism (Article V). Douglas renders the amendment mechanism meaningless (Harper, for example, nullified the 24th Amendment).
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