Constitutional Law Commons^™

May 4, 2015: Choosing To Be Good Without God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Choosing to be Good Without God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Dominican And Haitian Relations: Changing Constitutions And Migrant Rights, Tiffany Busch

Honors Projects

The Dominican Republic and Haiti share the island of Hispaniola. The two nations’ shared history can best be described as tumultuous. The French and Spanish long fought for control over the small island before ultimately becoming two independent nations. Tensions still exist between the nations. The Dominican Republic, operating under antihaitianismo, fears that the influx of Haitian people will be detrimental to the country’s economic and cultural well-being. As a result, deportations have increased. Human Rights Watch has condemned the Dominican Republic for its unethical deportation methods. Moreover, the Dominican Republic enacted a new constitution in 2010 with more …

American Civil Liberties Union Of North Carolina V. Tata: Manipulation Of The Government Speech Doctrine Through Specialty License Plates, Kaitlin E. Leary

Maryland Law Review Online

No abstract provided.

Voter Rights And Civil Rights Era Cold Cases: Section Five And The Five Cities Project, Paula C. Johnson

Journal of Race, Gender, and Ethnicity

No abstract provided.

Bond V. United States And Information-Forcing Defaults: The Work That Presumptions Do, Paul B. Stephan

Notre Dame Law Review

This Article first places Bond in the context of the Supreme Court’s growing reliance on interpretive presumptions to limit the effect of legislation. While some of the presumptions go back to the early days of the Republic, the current Court has expanded the roster of these devices and strengthened their effect. A review of the treatment of information-forcing defaults in contracts scholarship follows. Contract theory, or more precisely the strand of contract theory that draws on economics, seeks to identify socially optimal rules for contract formation, interpretation, and enforcement. To clarify the specific role of these rules, this Article compares …

Bond'S Breaches, Edward T. Swaine

Notre Dame Law Review

Bond v. United States illustrates a new maxim for today’s Supreme Court: hard cases make no law at all. To be sure, Bond’s bottom line was not particularly difficult. But once the Supreme Court ultimately did take the case, it became hard to decide—at least in terms of the rationale. Although the Justices all favored reversal and dismissal of the indictment, they wound up providing little clarity on the larger questions the case raised.

If, as the more time-honored homily goes, hard cases otherwise make bad law, making little bad law was hardly the worst outcome. Nevertheless, what the …

An Intersubjective Treaty Power, Duncan B. Hollis

Notre Dame Law Review

This Article explores whether the Constitution limits the making and implementation of U.S. treaties to subjects of “international” intercourse or concern. It does so in two steps. First, I undertake the existential inquiry, asking if the Constitution requires a nexus between treaties and “international” subject matters. I argue that Justices Alito, Scalia, and Thomas are correct—and the Restatement (Third) is wrong—on the question of whether the Constitution imposes an affirmative subject matter limitation on the treaty power. Various modalities of constitutional interpretation—original meaning, historical practice, doctrine, structure, and prudence—offer evidence in support of some version of an “international concern” test. …

The Boundless Treaty Power Within A Bounded Constitution, Saikrishna Bangalore Prakash

Notre Dame Law Review

I count myself among those who suppose that the Constitution contains no subject matter limits on the treaty power. More precisely, I believe that the original Constitution granted the President the power to make international agreements, with no particular constraints on the subjects they might touch. I reach this conclusion with a great deal of reluctance not because the case for this proposition is weak but because, as a matter of policy, I favor subject matter limits on the treaty power as a means of ensuring exclusive state authority over certain matters. Nonetheless, I have become convinced that the Constitution …

Congress's Limited Power To Enforce Treaties, Michael D. Ramsey

Notre Dame Law Review

This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. …

Bond And The Vienna Rules, Roger P. Alford

Notre Dame Law Review

This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.

Bond V. United States: Choosing The Lesser Of Two Evils, David Sloss

Notre Dame Law Review

This essay makes two main points. First, the majority’s interpretation of the CWC Act is inconsistent with the statute and the underlying treaty. Indeed, the majority opinion displays a basic misunderstanding of the design of the underlying treaty. Second, Justice Scalia’s construction of the Necessary and Proper Clause is antithetical to the structure and original understanding of the Constitution. If adopted as law, Justice Scalia’s view would seriously harm the federal government’s ability to conduct foreign affairs on behalf of the nation. Since Justice Scalia’s constitutional error would be far more damaging than the majority’s statutory error, the majority’s statutory …

Bond, The Treaty Power, And The Overlooked Value Of Non-Self-Executing Treaties, Julian Ku, John Yoo

Notre Dame Law Review

This Article proceeds as follows. First, it discusses the Bond case and how the treaty at issue in Bond illustrates the practical importance of non-self-executing treaties in U.S. practice. It elaborates on this point in Part II by arguing that the CWC is the classic example of an important international treaty that could not have been properly implemented without separate legislation. Next, it offers a discussion of the academic criticism of non-self-execution as tending to undermine the United States’ ability to comply with international obligations. It then responds to this criticism by exploring the ways in which non-self-executing treaties like …

Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong

Faculty Publications

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

Section 1983 Litigation: The Maze, The Mud, And The Madness, Karen M. Blum

William & Mary Bill of Rights Journal

No abstract provided.

Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer

William & Mary Bill of Rights Journal

No abstract provided.

Sovereign Impunity: The Supreme Court Of Georgia’S False Textualism Expands The Doctrine Of Sovereign Immunity In The State, Laura R. Dove

William & Mary Bill of Rights Journal

Until recently, sovereign immunity—the doctrine that protects state entities from suit without the State’s consent—had been held by the Supreme Court of Georgia not to apply to suits seeking solely injunctive relief to prevent the State, its departments, or agencies from acting illegally or outside the scope of their authority. This rule stemmed partly from the fact that a significant policy basis for sovereign immunity is the protection of taxpayer funds, but also was grounded on the principle that the State may not “cloak itself in the mantle of sovereign immunity” to prevent its citizens from holding the State accountable …

The Architecture Of Constitutional Time, Richard Alexander Izquierdo

William & Mary Bill of Rights Journal

Bruce Ackerman’s account in his We the People series urges the legal recognition of constitutional amendments enacted outside of Article V as part of a larger descriptive project concerning the creation of distinct republics within the Constitution of 1787. One of its limitations is that he and other scholars have not fully appreciated the way in which the original institutional design of the Constitution has facilitated—and perhaps even anticipated—the construction of subregimes during extraordinary times. This Article presents constitutional time and presidential incentives for a lasting legacy as the most important factors influencing constitutional meaning. It is constitutional time—the extraordinary …

Diversity, Democracy & Pluralism: Confronting The Reality Of Our Inequality, Stacy Hawkins

Mercer Law Review

African-Americans were inspired by the election of Barack Obama as the first African-American President of the United States. Women were energized by even the prospect of electing the first female President of the United States. Latinos expressed pride in the confirmation of Justice Sonia Sotomayor to the United States Supreme Court. And a movie was made immortalizing Harvey Milk, the first openly gay politician elected to public office in the United States. This list of celebrated "firsts" goes on and on. All too often in the twenty-first century, we have either celebrated diversity among our civic leaders as a novelty, …

King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda

University of Miami Business Law Review

The Patient Protection and Affordable Care Act—popularly called either the “ACA,” or “Obamacare” by opponents, proponents, and even the White House—is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never …

From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin

University of Miami Business Law Review

Americans describe the new healthcare system established by the Patient Protection and Affordable Care Act (“ACA”) as both a blessing and a nightmare. For millions of low and middle income Americans, the ACA offers access to health insurance they could not otherwise afford. The ACA’s opponents, however, view the new healthcare system as a threat to economic prosperity, an intrusion on personal liberty and a violation of the principles of federalism at the heart of our system of government. These same kinds of arguments were made more than eighty years ago in response to President Franklin Delano Roosevelt’s New Deal. …

Unfair Coercion, Or Greater Deference? Two New Sides Of King V. Burwell, Tom Miller

University of Miami Business Law Review

Litigation challenging the legality of an Internal Revenue Service rule that became final on May 2012 has traveled a long, winding, and contentious path. The IRS rule authorized the distribution of federal premium assistance tax credits in all health benefits exchanges under the Patient Protection and Affordable Care Act of 2010 (the “ACA”). However, potential legal problems with reconciling various sections of the final legislation involving those tax credits were identified as early as December 6, 2010. On September 19, 2012, the first of four different legal challenges to the IRS rule was filed in federal district court in Oklahoma. …

The Subsidy Question In King V. Burwell—A Federalist Response To Crony Capitalism, Antonio F. Perez

University of Miami Business Law Review

On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would …

The "Originalism Is Not History" Disclaimer: A Historian's Rebuttal, Patrick J. Charles

Et Cetera

Many originalists disclaim that competing strands of originalism are not history. This is perplexing, in part because the disclaimer contradicts what is arguably the central purpose of originalism: decoding the original meaning of constitutional text at a fixed point in time. Originalism’s strength is that it provides legal professionals with familiar tools to supplement the world of historical uncertainty. By accepting the premise that originalists only need to be familiar with a “subspecialty of history” or the “investigation of legal meanings,” originalism fails by facilitating mythmaking more so than fact-finding. Of course, originalism can be reformed in this respect. One …

What Did They Mean?: How Principles Of Group Communication Can Inform Original Meaning Jurisprudence And Address The Problem Of Collective Intent, W. Matt Morgan

William & Mary Bill of Rights Journal

No abstract provided.

The Second Amendment In The Twenty-First Century: What Hath Heller Wrought?, Patrick J. Charles

William & Mary Bill of Rights Journal

No abstract provided.

Diagnosed With Time Is Money: Arbitrary Medicare Provisions Differentiating Observation Services From Inpatient Admissions Violate Beneficiaries’ Due Process Rights, Stephanie Masaba

William & Mary Bill of Rights Journal

No abstract provided.

Impact Of The “Nirbhaya” Rape Case: Isolated Phenomenon Or Social Change?, Tina P. Lapsia

Honors Scholar Theses

In December 2012, a twenty-three year old college student, who was given the pseudonym “Nirbhaya” (“fearless”), was fatally gang-raped on a private bus in Delhi, India, galvanizing the country to swiftly adopt new legislative measures and catapulting the issue of violence against women in India into the international spotlight. Although assault and rape cases have made India infamous for its high volume of crimes against women, the reaction to this particular incident was much different from before. This paper investigates whether the governmental and societal responses represent social change, as indicated by changing attitudes towards violence against women in India. …

Reverse Nullification And Executive Discretion, Michael T. Morley

Scholarly Publications

The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption is …

Putting A Gag On Farm Whistleblowers: The Right To Lie And The Right To Remain Silent Confront State Agricultural Protectionism, Rita-Marie Cain Reid, Amber L. Kingery

Journal of Food Law & Policy

Whistleblowers play an important role in filling gaps in government food safety systems. Unfortunately, several dominant food-producing states have pursued legislative initiatives that punish farm whistleblowers and silence investigative tactics. First, this research describes various state legislative initiatives that curb criticism of agriculture. The work analyzes the federal food safety system and how these protections limiting agricultural criticism contravene that food safety net. Further, the research analyzes the free speech concerns in the newest protectionist laws. The analysis recommends strategies and future research to improve agriculture safety and protect free speech in an evolving food safety landscape.

Does The Right To Elective Abortion Include The Right To Ensure The Death Of, Stephen G. Gilles

University of Richmond Law Review

No abstract provided.