Law Commons^™

Is Obamacare Really Unconstitutional?, Nicholas Bagley

Articles

On December 18, 2019, just 3 days after the close of open enrollment on the exchanges and on the same day the House of Representatives impeached President Donald Trump, a conservative appeals court handed the President a major victory in his crusade against the Affordable Care Act (ACA). Over a stern dissent, the U.S. Court of Appeals for the Fifth Circuit declared that the law’s individual mandate is unconstitutional and that the entire rest of the law might therefore be invalid.

Piracy And Due Process, Andrew Kent

Michigan Journal of International Law

This article explores in depth the law of nations, English domestic law, and English government practice from the late medieval period through the eighteenth century, and the U.S. constitutional law and government practice during the Founding and antebellum periods. I conclude that Chapman’s claims about due process and piracy suppression are incorrect. Both Parliament and the U.S. Congress; both the Crown and its counselors and U.S Presidents and their advisers; both the Royal Navy and the U.S. Navy; and commentators both English and American believed that (1) pirates on the high seas could lawfully be subject to extrajudicial killing, but …

How The Ada Regulates And Restricts Solitary Confinement For People With Mental Disabilities, Margo Schlanger

Other Publications

In a landmark decision two decades ago, United States District Judge Thelton Henderson emphasized the toxic effects of solitary confinement for inmates with mental illness. In Madrid v. Gomez, a case about California’s Pelican Bay prison, Judge Henderson wrote that isolated conditions in the Special Housing Unit, or SHU, while not amounting to cruel and unusual punishment for all prisoners, were unconstitutional for those “at a particularly high risk for suffering very serious or severe injury to their mental health . . . .” Vulnerable prisoners included those with pre-existing mental illness, intellectual disabilities, and brain damage. Henderson concluded that …

A Moment For Pragmatism, Jane S. Schacter

Michigan Law Review

One of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted. The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended …

Certiorari And The Marriage Equality Cases, Carl Tobias

University of Michigan Journal of Law Reform Caveat

Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.

Enacted Legislative Findings And The Deference Problem, Daniel A. Crane

Articles

The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof

Michigan Law Review

The recent controversy surrounding President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in …

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

The Constitutionality Of California's Cap-And-Trade Program And Recommendations For Design Of Future State Programs, Thomas Alcorn

Michigan Journal of Environmental & Administrative Law

Global climate change has emerged as one of the greatest challenges of our time. While action has stalled on the national stage, states have started to take action to reduce their greenhouse gas emissions. Confronted with the risk of severe impacts that could cost it tens of billions of dollars annually by the end of the century, California has taken the lead and developed the first comprehensive cap-and-trade program in the nation and seeks to achieve significant reductions in the greenhouse gas emissions associated with its economy. The success of California’s program will determine whether other states and the federal …

Statutory Interdependence In Severability Analysis, Rachel J. Ezzell

Michigan Law Review

According to conventional wisdom, when a court rules a statutory provision unconstitutional, it must sever that provision or strike down the entire statute. This understanding is incomplete. In practice, courts may engage in compound severance: invalidating additional, otherwise constitutional provisions of the statute without striking down the entire statute. They reason that the degree of interrelation between those provisions is so significant that severance of one compels severance of the other. As a result, a subset of the statute remains law. The power to craft such subsets raises constitutional concerns, and yet the jurisprudence concerning statutory interdependence is inconsistent and …

Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum

Michigan Law Review

A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court …

Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter

Michigan Law Review

Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, …

Are Class Actions Unconstitutional?, Alexandra D. Lahav

Michigan Law Review

Are class actions unconstitutional? Many people-defendants and conservative legislators, not to mention scholars at the American Enterprise Institute-would like them to be. For opponents of the class action, Martin Redish's book Wholesale Justice provides some of the most theoretically sophisticated arguments available. The book is a major contribution both to the scholarly literature on class actions and to the larger political debate about this powerful procedural device. The arguments it presents will surely be debated in courtrooms as well as classrooms.

Kids Are Different, Stephen St.Vincent

Michigan Law Review First Impressions

The Supreme Court recently handed down its decision in Graham v. Florida. The case involved a juvenile, Graham, who was sentenced to life in prison after being convicted as an adult of a nonhomicidal crime. The offense, a home invasion robbery, was his second; the first was attempted robbery. Due to Florida's abolition of parole, the judge's imposition of a life sentence meant that Graham was constructively sentenced to life without parole for a nonhomicide crime. Graham challenged this sentence as unconstitutional under the Eighth Amendment. Somewhat surprisingly, the Supreme Court invalidated Graham's sentence by a 6-3 majority. By a …

The Constitution, The White House, And The Military Hiv Ban: A New Threshold For Presidential Non-Defense Of Statutes, Chrysanthe Gussis

University of Michigan Journal of Law Reform

The President's constitutional duty to 'take Care that the Laws be faithfully executed" implies that the President is entrusted with the responsibility to defend those laws against court challenges. On occasion, however, Presidents faced with legislation that they deem unconstitutional have declined to defend that legislation against legal challenges. On February 10, 1996, President Clinton declined to defend a provision included in the National Defense Authorization Act for Fiscal Year 1996 that required discharge from the military of all HIV-positive servicemembers because he believed that the provision violated the Equal Protection Clause of the Fourteenth Amendment. This Note explores whether …

Interstate Preemption: The Right To Travel, The Right To Life, And The Right To Die, Lea Brilmayer

Michigan Law Review

State laws differ, and they differ on issues of tremendous importance to the ways that we conduct our lives. Abortion and the right to die are two issues on which state law intersects with deeply held moral convictions, and on which state laws vary. With so much hanging in the balance, it is not surprising that those who find themselves outvoted or outmaneuvered in local political processes sometimes seek a legal climate more compatible with their beliefs about human decency and dignity. The right to "vote with one's feet" - to travel or move to another state and trade a …

Dialogue And Judicial Review, Barry Friedman

Michigan Law Review

This article argues that most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The goal of this article is to redescribe the landscape of American constitutionalism in a manner vastly different than most normative scholarship. At times this article slips across the line into prescription, but by and large the task is descriptive. The idea is to clear the way so that later normative work can proceed against the backdrop of a far more accurate understanding of the system of American constitutionalism.

This article proceeds in three separate parts. Parts I and II …

Are Laws Against Assisted Suicide Unconstitutional?, Yale Kamisar

Articles

On 15 February of this year, shortly after the number of people Dr. Jack Kevorkian had helped to commit suicide swelled to fifteen, the Michigan legislature passed a law, effective that very day, making assisted suicide a felony punishable by up to four years in prison. The law, which is automatically repealed six months after a newly established commission on death and dying recommends permanent legislation, prohibits anyone with knowledge that another person intends to commit suicide from "intentionally providing the physical means" by which the other person does so or from "intentionally participat[ing] in a physical act" by which …

The Severability Of Legislative Veto Provisions: An Examination Of The Congressional Budget And Impoundment Control Act Of 1974, Steven W. Pelak

University of Michigan Journal of Law Reform

This Note examines the constitutionality of the legislative veto provision (section 1013(b)) in the Congressional Budget and Impoundment Control Act, and discusses section 1013(b)'s and Title X's severability from the Act. Part I demonstrates that Chadha invalidates section 1013(b). Part II outlines the traditional severability doctrine. Part III proposes a refined model of the severability doctrine with which to resolve severability conflicts involving legislative veto provisions. Part IV applies the proposed severability model to the Congressional Budget and Impoundment Control Act, and concludes that section 1O13(b)'s unconstitutionality requires that the entire Congressional Budget and Impoundment Control Act fall.

The Twentieth-Century Primacy Of Statutory Law, Albert Tate Jr.

Michigan Law Review

A Review of Dealing with Statutes by James Williard Hurst

Making Noninterpretivism Respectable: Michael J. Perry's Contributions To Constitutional Theory, Richard B. Saphire

Michigan Law Review

A Review of The Constitution, The Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary by Michael J. Perry

Educational Financing, Equal Protection Of The Laws, And The Supreme Court, Michigan Law Review

Michigan Law Review

Recently, state systems of financing public education have been overturned or seriously threatened by several state and federal court cases based on the equal protection clause of the fourteenth amendment. Rodriguez v. San Antonio Independent School District, which invalidated the Texas system of educational financing, will be argued before the Supreme Court next term. This Comment will examine the doctrinal and policy problems that the Court will confront and the alternative solutions that are available to the Court when it considers the constitutionality of the Texas system, which is typical of the educational financing programs that have generated so …

Cappellitti: Judicial Review In The Contemporary World, Paul G. Kauper

Michigan Law Review

A Review of Judicial Review in the Contemporary World by Mauro Cappellitti

Constitutional Law--Statutory Interpretation Under Labor-Management Relations Act--Prohibition Of Union Political Expenditures, Roland E. Ginsburg

Michigan Law Review

The C.I.O., with the consent of its president, Philip Murray, made expenditures from the funds of the organization for the publication of an editorial in the "C.I.O. News," a regularly issued periodical, urging the members of the C.I.O. to vote for a particular candidate in a special Congressional election in Maryland. Additional funds were expended for the publication and transportation of one thousand extra copies. Both the C.I.O. and Mr. Murray were charged with violation of section 304 of the Labor-Management Relations Act in the district court. Defendants moved to dismiss the indictment, alleging that the statute abridged rights guaranteed …

Domestic Relations - Statutory Abolition Of Certain Causes Of Action, George A. Rinker S.Ed.

Michigan Law Review

ln response to widespread and vigorous criticism of the abuses practiced through the use of the action at law for breach of promise to marry, and to a lesser extent, the actions for alienation of affections, criminal conversation, and seduction, several states enacted legislation designed to eliminate the evils complained of by abolishing some or all of those causes of action. The purpose of the present discussion is to analyze and compare the various statutes, and to indicate how they have fared in the courts; in short, to survey the whole reform program as it stands twelve years after the …

Vested Rights And The Portal-To-Portal Act, Ray A. Brown

Michigan Law Review

The Portal-to-Portal Act of 1947 attempts, by new and retroactive definitions of what constitutes working time of an employee under the Fair Labor Standards Act of 1938, to deprive employees of claims under that earlier act, to which the Supreme Court of the United States has held they were entitled. This article will discuss whether this can be done under the due process clause of the Fifth Amendment.

The Newberry Case, Ralph W. Aigler

Articles

Senator Newberry of Michigan and sixteen others were convicted in the United States District Court on the charge that they "unlawfully and feloniously did conspire, combine, confederate, and agree together to commit the offense [in the Newberry indictment] on his part of wilfully violating the act of Congress approved June 25, 1910, as amended, by giving, contributing, expending, and using and by causing to be given, contributed, expended and used in procuring his nomination and election at said primary and general elections, a greater sum than the laws of Michigan permitted and above ten thousand dollars," etc. The Act of …

The Commodity Clause Of The Hepburn Act, Edwin C. Goddard

Articles

The Supreme Court of the United States has added another to the interesting line of cases construing the so-called "Commodity Clause" of the HEPBURN ACT of 1906. In United States v. Delaware, Lackawanna & Western Railroad Co. and the Delaware, Lackawanna & Western Coal Co., decided on June 21, 1915, 35 Sup. Ct. 873, the court reversed the decree of the District Court as reported in 213 Fed. 240, and found the relation and contract between the Railroad Company and the Coal Company to be in violation of the HEPBURN ACT and the SHERMAN ACT.