Tag: Supreme Court

Supreme Court Turns Minor Case Into a Potential Constitutional Conflict


shutterstock_141934102At first glance, yesterday’s Supreme Court decision in Zivotofsky v. Kerry — holding that Congress couldn’t force the executive branch to recognize Jerusalem as part of Israel on a passport — seems destined to end up as but a footnote in most constitutional law books. It only decides whether the president or Congress controls the content of U.S. passports. But because Zivotofsky involves the treatment of Jerusalem, it adds to the president’s foreign affairs arsenal and could affect the struggle over U.S. Middle East policy, such as an Iranian nuclear deal.

Zivotofsky upholds the executive’s right to control passports. According to the Court’s decision, the State Department, rather than Congress, decides whether to record the birthplace of a U.S. citizen born in Jerusalem as “Jerusalem,” rather than “Israel.” All of the justices agree that the president holds a monopoly on the recognition of foreign governments, which stems from his exclusive constitutional authority to “receive Ambassadors” and has existed since President Washington’s 1793 proclamation of neutrality during the French Revolution. Congress, on the other hand, has the authority to control immigration, the borders, and international travel. Justice Kennedy, who wrote the majority opinion on behalf of Justices Ginsburg, Breyer, Kagan, and Sotomayor, used an ill-conceived and undefined balancing test to conclude that Congress could not use these powers to contradict the president’s position on Israel’s territorial boundaries. A law using passports to contradict the president’s decision to recognize Israel “would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”

It is refreshing to see Democratic-appointed Justices, some of whom criticized President Bush’s right to manage the War on Terror, take a stand in favor of the executive’s authority in foreign affairs (though don’t hold your breath for their embrace of a President Walker’s use of executive power). Their majority opinion, however, skims over the most critical point by mistaking the power over passports as belonging to Congress, rather than the executive. But even if Congress enjoys this power, Justice Kennedy fails to explain why it undermines the executive’s recognition of Israel. His reason — that Congress cannot force the Secretary of State to contradict the president — makes little sense. Regardless of the passport’s listing of birthplace, U.S. recognition of Israel remains unchanged. President Obama can still maintain his frosty relations with Benjamin Netanyahu and even threaten to support Arab and European persecution of Israel at the United Nations, all the while claiming to be Israel’s best friend before domestic audiences. Although Congress’s passport law may reveal that the Republican legislature is far more supportive of Israel than the president, this will only come as news to those who missed Netanyahu’s March address before Congress.

The Disappearance of Jonathan Gruber


jonathan_gruberNo one lectures the United States Supreme Court quite like the New York Times. Their penchant for talking down to (face it) the conservative members of the court has transcended numerous personnel changes at the paper. And when it comes to the issues that define the twilight of modern liberalism, the Times does not obsess (as other, lesser news organizations might) about the distinction between news and opinion pages

A recent article by Robert Pear in the Politics section provides a priceless example. The Times recognizes, of course, that Obamacare represents the high water mark of statist ideology in the past 100 years of the U.S. Congress and that, should the law be forced back to Capitol Hill for repair of one sort or another, it has no chance at survival. As I have written elsewhere, the liberal cognoscenti view their task as pushing forward the great ratchet of history to lift us, the barbarians, out of chaos and onto the plateau of utopia.

Nothing is more agonizing to them than to see the ratchet slip a hard-won notch.

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The fourth case is my series is not a football or basketball rivalry — rather, Kansas v. Nebraska (Case No. 126) is essentially a contract dispute between the states of Kansas and Nebraska under the Republican River Compact, which is an agreement between Kansas, Nebraska, and Colorado to apportion the waters of the Republican River […]

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The Libertarian Podcast: Understanding the Dormant Commerce Clause


In the latest installment of the Libertarian podcast, Professor Epstein is giving listeners a tutorial on the Dormant Commerce Clause — the controversial legal doctrine that was at stake in the Supreme Court’s recent ruling in Comptroller of the Treasury of Maryland v. Wynne. What is it? Why was it able to so dramatically scramble judicial alliances in the Comptroller case (where the majority consisted of Alito, Roberts, Kennedy, Breyer, and Sotomayor)? And why does Justice Scalia regard it as a “judicial fraud”? Find the answers by listening in below or subscribing to the Libertarian podcast via iTunes or your favorite podcast app.

SCOTUS Notes # 3: Comptroller of the Treasury of Maryland v. Wynne


shutterstock_103670531The third case in my series is a Constitutional decision under the “dormant Commerce Clause,” involving state income taxation called Comptroller of the Treasury of Maryland v. Wynne. It is interesting because: (1) it limits the right of states to tax individual income, and (2) it generated an unusual 5-4 split, dividing both the conservative and liberal justices 2-2, with Justice Kennedy casting the deciding vote.

I.  Issue

Whether the Commerce Clause of the federal Constitution prohibits a state from imposing an income tax system that results in a higher tax burden on out-of-state income.

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And I have mixed feelings about it.  On the one hand, the incident occasioned congratulations from several friends and family members.  On the other hand, I have been insulted and I feel a slight urge to respond.  Here’s the insulting paragraph: Heritage recently publicized the claims of “100 scholars” attacking marriage equality. Almost without exception, the “scholars” […]

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This is the introductory post in a series that I’m going to call “SCOTUS Notes.”  My plan is to post brief summaries of relatively ordinary cases decided by the United States Supreme Court.  I hope that these will be of interest to others at Ricochet, and expect that some may generate some interesting discussion. Rodriguez […]

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Jim, David, and the Supreme Court


I have this uncle, let’s call him Jim. He and David lived together for decades. They shared expenses, kept each other company, and generally looked out for each other. They were, in many ways, like an old married couple. But when David died, Jim had no right to receive spousal survivor benefits because he was never married to David. Why did they never marry? Because they were gay? No: because they were brothers.

Why shouldn’t Jim and David have married? They were consenting adults. They had a long-term committed relationship.  Granted, there was no physical union, but so what? The idea that a marriage must be consummated by a sexual act is surely a relic of a bygone era.

The Supreme Court is Wrong: Get Race Out of Redistricting


Last week, the Supreme Court, in the case of Alabama Black Caucus v. Alabama, overturned a redistricting plan for Alabama’s State Legislature, with the Court’s majority (the four liberals and Justice Kennedy) arguing that the new district lines didn’t do enough to preserve the influence of black voters. As I write in my new column for Defining Ideasit’s a mistake to accept the redistricting status quo in which the majority party (Republicans, in Alabama) constructs relatively safe districts for itself and then gives the minority party a handful of even safer seats as compensation. As I write:

In a sensible world, the best counter to these dangerous tendencies uses explicit formal requirements to remove this unpleasant form of tit-for-tat politics. Two constraints, taken together, could achieve this result in a relatively simple fashion. The first is to stick with a requirement of rough numerical equality across districts. The second is to require relatively compact districts, which look more like simple squares than some grotesque 28-sided monster that white citizens (outnumbered by 4 to 1) consciously created in Tuskegee, Alabama in 1957 to block the possibility that newly enfranchised black residents would soon take over local politics. Six years after Brown v. Board of Education, the Supreme Court in Gomillion v. Lightfoot struck down this ploy under the Fifteenth Amendment, which provides that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

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After reading the articles that several of my Facebook friends posted concerning Indiana’s recent passage of a state-level Religious Freedom Restoration Act (RFRA) law and my friends’ and other Facebook users’ comments regarding those articles, it was clear that no one — not the journalists writing the articles, nor my friends reading them — had […]

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Peter Robinson and the Constitutional Complexities of Gay Marriage


Peter Robinson’s post yesterday cites Robert George’s passionate attack on claims for the constitutionality of gay marriage, wherein George argues that this weighty issue should be decided analytically at the wholesale level. He looks at what he, and many others, think to be bad decisions by an activist Supreme Court and urges that Republicans, both in and out of government, should treat the decision “as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives.”

This is a very radical claim and the effort to upset the doctrine of judicial supremacy, far from being confined to this decision, could easily be extended to any other ruling that is subject to extensive political disputation. Professor George seeks to make this argument by analogizing the situation with gay marriage to earlier cases. Here’s the relevant section that Peter quoted:

Calling Richard Epstein and John Yoo, or, if the Supreme Court Legalizes Gay Marriage, How Should We Respond?


shutterstock_103670531Constitutional scholar Robert P. George, writing in First Things:

Dred Scott v. Sandford was the infamous case in which the Supreme Court of the United States, usurping the constitutional authority of the people acting through their elected representatives in Congress, purported to deny the power of the United States to prohibit slavery in the federal territories. It is very much worth recalling that Dred Scott was not just a case about slavery. It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation.

The Supreme Court did it again in 1905 in the case of Lochner v. New York (invalidating a worker protection statute enacted by the state legislature), and then several more times in the Warren Court era, culminating in Roe v. Wade—the Dred Scott decision of our own time. Now we face the prospect of yet another Dred Scott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.

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Los Angeles – Paul Krugman took home the Academy Award for Economics yesterday for his role as a pundit posing as a morally-vain economist who couches his arguments in contemptuous terms toward dissenters. “Those who disagree with my views are either fools, knaves or foolish knaves” he said in his acceptance speech, transforming into the award-winning roll before his colleagues who comprise […]

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Abercrombie & Fitch at the Supreme Court


I have long argued that Title VII of the Civil Rights Act of 1964 — the part of the law enshrining prohibitions on employment discrimination — ought to be repealed. One of the great advantages of unregulated labor markets is that they lead to better fits between workers and their positions. Forced associations may require accommodations that often prove unstable in the long run. Allowing the voluntary market to work will reduce the overall cost of hiring and firing and will therefore systematically increase job opportunities across the board. Title VII provides no exception to the general rule that regulated labor markets underperform competitive ones.

The complicated thicket that results from Title VII can be seen in a case that went before the Supreme Court last week. At issue was whether an Abercrombie & Fitch store engaged in impermissible religious discrimination when it failed to hire a Muslim woman whose spiritual obligation to wear the hijab conflicted with the dress code expected of store employees. As I note in my new column for Defining Ideas from the Hoover Institution, this would have been a much easier process in a non-Title VII world:

March for Life


Right now, all across America and in several foreign countries, hundreds of thousands of people are preparing for a pilgrimage that will take them tomorrow to the site of a grave injustice that has cost the lives of tens of millions.

Supreme Court Takes Up Same-sex Marriage


Today, the Supreme Court granted a writ of certiorari to hear a case on the constitutionality of state bans on gay marriage. I thought, and continue to think, that the Supreme Court erred in Windsor two years ago in striking down the Defense of Marriage Act. The decision did not directly overrule the many states that had barred gay marriage, but the reasoning made it clear what a majority of the Justices think: discrimination against gays violates the Constitution.

Nevertheless, I thought it would be best for the Justices to allow the issue of a constitutional right of gays to marry to proceed through the states and the lower courts over time. As someone who supports gay marriage, I believe that the political process is the most appropriate means under our Constitution for the American people to reach a decision on gay rights.

Would We Be Better Off Losing on Obamacare at the Supreme Court? A Response to John Yoo


384px-Official_roberts_CJA few days ago, Ricochet’s John Yoo predicted that Supreme Court will decide that the PPACA (Obamacare) does not allow for the federal exchanges to pay out subsidies in the upcoming King v Burwell case. Although I am a legal ignoramus, I have been following the excellent symposium on this case over at SCOTUSblog, and I wonder whether we might see an unexpected result here.

Based on the evidence from both sides, two points become clear. There is indeed no explicit passage in the law that mandates the federal subsidies, as exists for state exchanges. Still, there are a number of passages which make no sense if the federal exchanges are forbidden from paying out subsidies. More to the point, the law is so inconsistent and muddled that a good-faith argument could be made that it is simply ambiguous and incoherent on this issue; if so, the IRS will have the authority to come up with its own interpretation (the so-called Chevron deference).

Prof. Yoo suggests that Chief Justice Roberts may be eager to atone for his prior sins in the NFIB v Sibelius case, especially after the last election in favor of Republicans. Yet I find it strange to imagine that a man who only two years ago twisted himself into pretzel-like contortions to save the law will reverse himself and let the law twist in the wind. Instead, I wonder if he has something more nefarious up his sleeve.

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Because she didn’t resign during the last six years. If for any reason we lose a member of the Supreme Court during the rest of O’s presidency, he will have to get his nominee through a Republican senate.  RBG is 81 years old and appears to be looking to stay through the rest of this […]

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Fight Against Gay Marriage Running Out of Legal Avenues


shutterstock_159118949The Supreme Court’s decision yesterday to leave undisturbed cases striking down gay marriage bans in five states should be no surprise, though it does put the lie to the Court’s gay marriage decisions two terms ago.

In that case, Justice Anthony Kennedy’s opinion for himself and four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) spent most of its time praising federalism and admitting that marriage and family law remained under the control of the states. It then briefly — and without much explanation — found that the federal Defense of Marriage Act could only come from irrational hatred of gays. DOMA’s refusal to grant gay marriages the same federal benefits as heterosexual marriages, the Justices claimed, violated the principle that all laws must have some rational basis. Presumably the Court did not find all bans on gay marriage throughout the nation unconstitutional because of the unprecedented nature of the issue, which had not yet been fully discussed and ventilated in the lower courts.

The decision is no surprise because there is no split in the lower courts. Every federal appeals court to face the issue has found bans on gay marriage to be unconstitutional under the same logic as Windsor, which itself did not strike down any state marriage laws. The Justices are unlikely to take the case until a circuit court upholds a state ban on gay marriage. Why should the Court do so when it can rely on the lower court judges to do its work?