Constitutional Law Commons^™

From Guantánamo To Syria: The Extraterritorial Constitution In The Age Of "Extreme Vetting", Shawn E. Fields

Cardozo Law Review

This Article examines for the first time in scholarly literature whether and to what extent the Constitution applies extraterritorially to immigrants abroad. In particular, it explores whether non-detained immigrants and refugees outside the territorial boundaries of the United States can claim constitutional protection to challenge immigration policies and orders. The Supreme Court's recent willingness to reconsider the limits of the political branches' "plenary power" over immigration law and policy, coupled with the Court's recent extension of the Constitution to certain classes of extraterritorial noncitizens, suggests that a future role may exist for extraterritorial jurisprudence to inform constitutional immigration law. Using …

Dueling Denominators And The Demise Of Lucas, Stewart E. Sterk

Articles

In Murr v. Wisconsin, the Supreme Court outlined a process for ascertaining the denominator in takings cases – an issue that arises both with respect to Penn Central takings claims and Lucas takings claims. The underpinnings of Penn Central claims and Lucas claims are not identical; Penn Central’s primary concern is assuring fairness to landowners, while the focus of Lucas is on restricting government efforts to bypass the condemnation process. Although this difference in focus might suggest a difference in appropriate denominator, the Court’s multi-factor balancing approach apparently applies to all takings claims. Although the Court’s approach is consistent with …

The Supreme Court's Constitutional "Bright Line": Preempting Authority Of 47 Of 50 States, Steven Ferrey

Suffolk University Law School Faculty Works

The Supreme Court unanimously stripped 47 of the 50 states of their authority to regulate key commerce. In Hughes v. Talen Energy Marketing, the Court withdrew from state authority the power over law applicable to, and now controlling, what is identified as the second most important invention in history.

The transcendent constitutional question is whether this unanimous Supreme Court decision expands constitutional “field preemption” to permanently withhold from 47 states this power, or only employs “conflict preemption” to preempt this one single challenged state regulation. This article examines and esolves that the Court chose “field preemption” to permanently crimp and …

Pardoning Immigrants, Peter L. Markowitz, Lindsay Nash

Articles

In the waning days of the Obama Administration, with Trump’s promised immigration crackdown looming, over one hundred advocacy organizations joined forces to urge President Obama to permanently protect hundreds of thousands of immigrants from deportation by pardoning their breaches of civil immigration law. That pardon never materialized and, as expected, the Trump enforcement regime is sowing terror and devastation in immigrant communities nationwide. While it seems unfathomable that the current president would use his pardon power to mitigate even the most extreme applications of our nation’s immigration laws, there is unfortunately no indication that the harshest aspects of the immigration …

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

Articles

Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.

Konstitusionalitas Ketetapan Majelis Permusyawaratan Rakyat Dalam Hierarki Peraturan Perundang-Undangan, Meirina Fajarwati

Jurnal Hukum & Pembangunan

The Provision of the People Consultative Assembly is a kind and hierarchy of legislations in 2011 Law No. 12 on the Establisment of Law. The Provision of the People Consultative Assembly assignments again in hierarchy of legislation after being eliminated in the hierarchy of legislation with law number 10 years 2004 had created problems because that Provision can’t be judicial review by constitutional court or supreme court. The Provision of the people Consultative Assembly that can’t be judicial review has aroused problems related to exsistence of that Provision as stipulated in law number 12 years 2011

Menggagas Pembatasan Pembentukan Dan Materi Muatan Perppu: Studi Perbandingan Pengaturan Dan Penggunaan Perppu Di Negara-Negara Presidensial, Fitra Arsil

Jurnal Hukum & Pembangunan

Government regulation in lieu of law or ‘Perppu’arrangement in Indonesia is more limited than other types of emergency regulations issued by the president in various countries. Such arrangement apprently is not sufficient to be considered as limiting the issuance of the emergency regulations. Some presidential state countries have made changes to provide sufficient restrictions to presidential legislative power. The limitation is not only in terms of its formation procedures but also on the material which can be regulated by the Perppu. Therefore, lessons from other jurisdictionsindeed inspires Indonesia to limit the pasage of Perppu

Gagasan Pengadilan Khusus Untuk Sengketa Hasil Pemilhan Kepala Daerah, Qurrata Ayuni

Jurnal Hukum & Pembangunan

The Constitutional Court in Decision Number 97 / PUU-XI / 2013 states that the dispute over the head of region election is not included in the authority of its constitutionality. The Lawmakers follow up this ruling by initiating a special judicial body that will hear disputes over the results of head of region election. Special judicial bodies should have been formed before the head of region election simultaneously. In the transitional period, before the establishment of a special judicial body, disputes over the results of head of region election are still handled by the Constitutional Court in 2015 and 2017. …

Penerapan Uji Proporsionalitas Dalam Kasus Pembubaran Partai Politik: Sebuah Perbandingan, Bisariyadi -

Jurnal Hukum & Pembangunan

The Indonesian Constitutional Court has no jurisprudence related to the application of proportionality test. In comparative law perspective, proportionality test is referred to as "the ultimate rule of law”. This study aims to provide a consideration to the possibility of applying proportionality test when the Constitutional Court needs to deals with the issue of political parties dissolution. In countries that have examined cases of political parties dissolution, the proportionality test is a method of legal reasoning to reach the decision. This studyis conducted by comparing verdicts from national and regional courts, which have dealt with the dissolution of political parties …

Trump V. Hawaii: Brief Of Constitutional Law Scholars As Amici Curiae In Support Of Respondents, Richard Primus

Appellate Briefs

Amici are constitutional law scholars. They submit this brief to identify a distinct legal principle compelling the conclusion that the President's travel ban proclamation is unconstitutional: the long-settled prohibition on governmental acts based on animus toward a particular religious group. A full list of Amici is attached as an appendix to this brief.

President Trump has repeatedly espoused the animus that motivated his promises-and his subsequent acts-to ban a large number of Muslims from entering the United States. As a result of his statements, a decision by this Court upholding the Proclamation would deliver a powerful blow to popular faith …

March 28, 2018: Is Donald Trump The Antichrist?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Donald Trump the Antichrist?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Dassey V. Dittmann: Brief Amicus Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel R. Gross, Yale Kamisar

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality-of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of this …

Dassey V. Dittmann: Brief Amici Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel Gross, Yale Kamisar, Eve Brensike Primus

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality- of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of …

The Death Penalty And The Constitution, John M. Greabe

Law Faculty Scholarship

[excerpt] The death penalty is back in the news. Last week, President Donald Trump argued that capital punishment should be available to punish drug dealers who have contributed to the opioid crisis. Earlier this month, the New Hampshire Senate voted to prospectively repeal the state's death penalty. These developments provide occasion to review the constitutional issues raised when the federal government or a state seeks to put a convict to death.

Treating Neighbors As Nuisances: Troubling Applications Of Criminal Activity Nuisance Ordinances, Joseph Mead, Megan E. Hatch, J. Rosie Tighe, Marissa Pappas, Kristi Andrasik, Elizabeth Bonham

Et Cetera

Thousands of cities nationwide enforce Criminal Activity Nuisance Ordinances that catalyze the eviction of tenants when there are two or more police visits to a property. We report findings of an empirical study of enforcement of nuisance ordinances, finding that cities often target survivors of domestic violence, people experiencing a mental health crisis, nonprofit organizations serving people with disabilities, people seeking life-saving medical intervention to prevent a fatal drug overdose, and non-criminal behavior such as playing basketball or being “disrespectful.” Codifying into public policy a path to homelessness in these instances is not only cruel and counterproductive, but likely violates …

March 23, 2018: Going Martin Luther King, Jr., One Better, Bruce Ledewitz

Hallowed Secularism

Blog post, “Going Martin Luther King, Jr., One Better“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit

Duke Journal of Constitutional Law & Public Policy Sidebar

NCAA v. Christie will determine whether a federal statute that prevents a state legislature from repealing a previously enacted state law violates the anti-commandeering doctrine. In 2014, New Jersey passed a state law repealing state prohibitions against sports wagering in Atlantic City. Five sports leagues sued New Jersey in federal court. The leagues asserted that the new state law violated the Professional and Amateur Sports Protection Act (“PASPA”), a federal law. New Jersey claimed PASPA violated the anti-commandeering doctrine and was accordingly unconstitutional. The Third Circuit Court of Appeals held that PASPA does not violate the anti-commandeering doctrine because it …

Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether the Ohio’s Supplemental Process for maintaining its voter rolls violates the requirements of the National Voter Registration Act (“NVRA”) and the Help America Vote Act (“HAVA”). The Court’s opinion will shape the landscape of voting rights, as many states are struggling to meet the dual mandates of election sanctity and increased voter access. This commentary argues that the Supreme Court can give states a guideline for what is an acceptable process that complies with the conflicting federal policies in the NVRA and HAVA. The Court should …

Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher

Duke Journal of Constitutional Law & Public Policy Sidebar

Mr. Patchak was a concerned citizen with standing to bring a suit against the federal government. A previous Supreme Court decision, Carcieri v. Salazar, made it clear that Mr. Patchak would win his case. Congress, however, did not want him to do so. Congress passed, and President Obama signed, the Gun Lake Act, which effectively ordered Mr. Patchak’s suit to be dismissed. Mr. Patchak’s suit was subsequently dismissed, and he appealed on the grounds that the Gun Lake Act violated separation of powers principles.

Privacy, Mass Intrusion And The Modern Data Breach, Jon L. Mills, Kelsey Harclerode

Florida Law Review

Massive data breaches have practically become a daily occurrence. These breaches reveal intrusive private information about individuals, as well as priceless corporate secrets. Ashley Madison’s breach ruined lives and resulted in suicides. The HSBC breach, accomplished by one of their own, revealed valuable commercial information about the bank and personal information about HSBC customers. The employee responsible for the breach has since been convicted of aggravated personal espionage, while third-party news outlets have been free to republish the hacked information.

Some information disclosed in data breaches can serve a public purpose. The Snowden disclosures, for example, revealed sensitive government information …

Contextualizing The Free Exercise Of Religion, Adam Lamparello

Florida Law Review

The level of protection afforded to an individual’s First Amendment right to freely exercise religion should depend upon the context within which it is exercised. Put differently, an individual’s right to religious liberty should be balanced against other individuals’ right to equal protection of the law, and the broader societal interest in protecting individuals from invidious discrimination. This Article proposes a multifactor test that fully protects the right to freely exercise one’s religion while simultaneously safeguarding equal protection and antidiscrimination guarantees. Specifically, the level of protection afforded to a free exercise claim should depend, among other things, on whether it …

Being Forced To Code In The Technology Era As A Violation Of The First Amendment Protection Against Compelled Speech, Adrianna Oddo

Catholic University Law Review

Over the past several decades, technological advancements led several courts to hold that computer code is protected as speech under the First Amendment of the Constitution. However, after fourteen people were killed in the 2015 San Bernardino massacre the U.S. Government sought to ignore those findings when it ordered Apple, Inc. to write a computer code to bypass the encryption software on the shooter’s cell phone. To access this particular phone Apple would need to write a code that could potentially compromise its customers’ data and personal information. Apple vehemently opposed the Government’s order and claimed that compelling it to …

When Constitutional Rights Clash: Masterpiece Cakeshop's Potential Legacy, Ken Hyle

ConLawNOW

The narrow question presented to the U.S. Supreme Court in Masterpiece Cakeshop is undoubtedly one of great national importance. The decision will likely yield a framework for courts to resolve conflicts that specifically involve religious freedom, artistic expression, and anti-discrimination laws in the context of public accommodations. However, my essay suggests that Masterpiece Cakeshop is an appropriate vehicle for the Court to expound upon a broader, more fundamental constitutional issue: what is the optimal framework for resolving direct conflicts between constitutional rights? The essay begins by exploring the inherent flaw in a framework grounded in the traditional levels of judicial …

Remedies Symposium: Article Iii, Remedies, And Representation, Andrew Coan, David Marcus

ConLawNOW

As articulated by the United States Supreme Court, the principal purpose of Article III standing is to force decisions affecting large numbers of people into the democratic process where all affected parties are represented. The logical implication of this “representation-centered theory” for the proper scope of injunctive relief is straightforward. That relief must not exceed what is reasonably necessary to remedy the particularized injury that sets the plaintiff or plaintiffs apart from the general population. The Supreme Court has repeatedly reaffirmed this logic. Yet courts and commentators, including the Court itself, routinely ignore it. The most prominent recent examples are …

March 18, 2018: Ross Douthat Misunderstands How Christ Works In The World, Bruce Ledewitz

Hallowed Secularism

Blog post, “Ross Douthat Misunderstands How Christ Works in the World“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rwu First Amendment Blog: David Logan's Blog: Weather Forecast For March 25: Stormy On 60 Minutes? 03-18-2018, David A. Logan

Law School Blogs

No abstract provided.

Schuette And Antibalkanization, Samuel Weiss, Donald Kinder

William & Mary Bill of Rights Journal

In Schuette v. Coalition to Defend Affirmative Action, Justice Kennedy’s controlling plurality revised the political process doctrine and ended the practice of affirmative action in Michigan. In this opinion, Kennedy followed in the Court’s tradition of invoking antibalkanization values in equal protection cases, making the empirical claims both that antibalkanization motivated the campaign to end affirmative action in Michigan and that the campaign itself would, absent judicial intervention, have antibalkanizing effects.

Using sophisticated empirical methods, this Article is the first to examine whether the Court’s claims on antibalkanization are correct. We find they are not. Support for the Michigan …

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Legitimacy, Authority, And The Right To Affordable Bail, Colin Starger, Michael Bullock

William & Mary Bill of Rights Journal

Bail reform is hot. Over the past two years, jurisdictions around the country have moved to limit or end money bail practices that discriminate against the poor. Although cheered on by many, bail reform is vehemently opposed by the powerful bail-bond industry. In courts around the country, lawyers representing this industry have argued that reform is unnecessary, and even unconstitutional. One particularly insidious argument advanced by bail-bond apologists is that a “wall of authority” supports the proposition that “bail is not excessive merely because the defendant is unable to pay it.” In other words, authority rejects the right to affordable …

Fifty Shades And Fifty States: Is Bdsm A Fundamental Right? A Test For Sexual Privacy, Elizabeth Mincer

William & Mary Bill of Rights Journal

No abstract provided.