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Defending Statutes

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HolderDaisy.jpgTwo weeks ago, a divided panel of the Ninth Circuit declared California's law on carrying guns in public to be unconstitutional in Peruta v. San Diego, No. 10-56971.  Judge O'Scannlain's opinion begins, "We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense."  He and Judge Callahan answer yes.  Judge Thomas dissents.

The San Diego Sheriff announced he would not seek rehearing en banc.  The California Attorney General has now moved to intervene and petitioned for rehearing en banc.

In my view, the AG is entirely correct to do this regardless of where one stands on the underlying question.  The proper operation of our system of separation of powers requires a defense of statutes when they are challenged judicially, and it is the Attorney General's duty to make that defense as long as one can reasonably be made.  It is dereliction of duty for AGs to refuse to defend statutes merely because they agree with the plaintiffs on close questions of constitutional law or, even worse, merely because they oppose the policy behind the statute.  The United States Attorney General notoriously failed to defend the anti-Miranda statute in the Dickerson case back in 1999.  That was very wrong, even though the case ultimately ended with the statute being struck down.

In this case, I have no doubt that Ms. Harris supports the policy behind the statute, so the disagreement issue is not presented.  However, I expect she will be criticized for defending it, so I wanted to state up front that her decision to make the case for the statute's constitutionality is correct, in my view.

Oh, BTW, the case is a slam dunk for rehearing en banc.

Defining Crimes By Regulation

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Eugene Volokh at VC has a post titled "May Congress delegate to the Executive the power to define minor crimes by regulation?"  He points to a Tenth Circuit decision Tuesday in United States v. Baldwin, No. 13-1198, in which Judge Gorsuch muses on that question.

Faithful Execution

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Article II, section 3, of the Constitution says that the President "shall take care that the laws be faithfully executed."  What exactly does that mean?  The House Judiciary Committee held a hearing on that subject today.  Video and written testimony are available here.

More on the FedSoc Convention

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As Bill notes, the Federalist Society is posting video of its annual convention.  The full list is here.

Along with the two events Bill mentioned, the annual Rosenkranz Debate was between Randy Barnett and Judge Harvie Wilkinson on judicial deference to the legislature.  Having heard both of them speak on this subject, I expect I will agree much more with Judge Wilkinson.

Judicial activism -- giving the Constitution an interpretation different from its original understanding in order to advance the judge's political, ideological, or policy preferences -- remains a far greater danger than its opposite.  For want of a better term, I call the opposite "judicial refractivism."  That is when a statute really does violate the Constitution as originally understood but the judge declines to so hold, either because he agrees with the statute and disagrees with the Constitution, or because he is excessively deferential to the legislature.

Judicial refractivism is a problem when it occurs, but it is both less common and less serious than judicial activism.  It is less common because of the natural human tendency to lean in the direction of enhancing one's own power.  It is less dangerous because genuinely unconstitutional statutes can be repealed through political action far more easily than wrongly stricken statutes can be resurrected through constitutional amendment.

I look forward to viewing this debate when the video is posted.

Barring Out-of-State Prisoner Placements

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When the lawyers for the California prisoners in the Plata case were arguing against a stay of the three-judge court's order in the U.S. Supreme Court, they said, "More fundamentally, Appellants do not have to release any prisoners; they have wide latitude to substitute other methods for reducing overcrowding....  For example, Appellants could 'reassign prisoners to leased jail space,' without any impact on public safety whatsoever."

With the stay denied, Gov. Brown proposed to do exactly that, which necessarily includes out-of-state facilities, as there is only so much capacity within the state.

Today, as noted in the News Scan, the three-judge court extended the deadline by a measly four weeks and ordered the parties to "meet and confer."  Okay, but then there is this provision in the order:  "During the meet-and-confer process and until further order of the Court, defendants shall not enter into any contracts or other arrangements to lease additional capacity in out-of-state facilities or otherwise increase the number of inmates who are housed in out-of-state facilities."

Excuse me, your honors, but exactly by what authority do you order California's executive officials, and thereby effectively order the State of California, not to employ additional out-of-state capacity to house its prisoners?
Justice Scalia gave a talk at George Washington University yesterday.  He emphasized the structural aspects of the Constitution, including federalism and the bicameral legislature, as underappreciated factors in the preservation of freedom.  Alex Hopkins has this story at the Washington Times.  Tony Mauro has this post at BLT.

Elizabeth Wydra of the Constitutional Accountability Center has this post on the speech, giving us a fine example of the straw man fallacy.  She discusses the fact that the Constitution was drafted to make a federal government more robust than the anemic Articles of Confederation government.

Of course, conservatives like Justice Scalia might not like this part of our constitutional story so much, because it helps to refute the claim that the Constitution is a document that is primarily about limiting government.
Huh?  What "conservatives like Justice Scalia" make such a claim?

A More Perfect Union

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We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

On this date 226 years ago, George Washington et al. signed the proposed Constitution and sent it to Congress with a recommendation to submit it to the States for ratification.

Foie Gras and the Eleventh Amendment

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The Ninth Circuit today upheld California's foie gras ban in Assoc. des Eleveurs de Canards v. Harris, No. 12-56822.  The relevant part for this blog is when a Governor or Attorney General has Eleventh Amendment immunity against a claim based on their duty to enforce a challenged law.
Under the Supreme Court's post-1937 view of the Commerce Clause, Congress has the power to regulate intrastate activity if it affects interstate commerce.  That includes a farmer growing wheat for use on his own farm, the high court decided in my least favorite opinion by my favorite justice, Wickard v. Filburn (1942).  What's good for wheat is good for weed, the court said in Gonzales v. Raich (2005).

Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.

The Montana Legislature passed the Montana Firearms Freedom Act ("MFFA" or "the Act"), which declares that a firearm or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words "Made in Montana" be "clearly stamped on a central metallic part." Id. § 30-20-106.
Will that dog hunt?  No.

Speaking of Radioactive Decisions...

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The DC Circuit today decided In re Aiken County, No. 11-1271, a case involving the Yucca Mountain nuclear waste repository in Nevada. The case involves executive discretion regarding enforcement of the law and the limits on that discretion.

The court decided that the Nuclear Regulatory Commission can no longer drag its feet on this controversial question, as it has been doing for years.  Kind of like DoJ has been doing on the AEDPA fast track.  This is illegal.  An administrative agency cannot nullify an Act of Congress just by sitting on its rump, and a court should issue a writ of mandamus when necessary to move it.

The court distinguishes prosecutorial discretion: 

One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior - more precisely, the power either not to seek charges against violators of a federal law or to pardon violators of a federal law.
When this authority is abused, the remedies are political and not judicial.

Judge Kavanaugh wrote the opinion of the court.  Judge Randolph concurred.  Judge Garland dissented.

More on Recess Appointments

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Standard operating procedure in the U.S. Supreme Court is that the party who lost in the lower court asks the Court to take the case, and the party who prevailed there files a "brief in opposition" telling the Court why the case is not worth its time.

Occasionally, though, the prevailing party below joins in the request to take the case up, even though it believes the Court should affirm once it does.  The U.S. Government is the party most likely to do this, as it is uniquely hampered by having to enforce different interpretations of the law in different federal circuits.  Much more rare is such a request by a private party, but one has been filed by Noel Canning, the bottling company that prevailed in the NLRB recess appointments case.  "Respondent does not oppose certiorari because this case presents a constitutional question of extreme importance."

Noel Canning asks the Court to add an additional Question Presented to the two proposed by the Government:
The U.S. Supreme Court occasionally issues summary reversals of lower court decisions.  That is, it sometimes reverses just on the certiorari petition, without new briefing on the merits or oral argument.  These reversals are particularly common in Ninth and Sixth Circuit habeas cases, where those courts repeatedly do exactly what Congress told them not to do.

Much more rare is a summary affirmance, but a case about to be filed may call for it.

Charlie Savage has this story in the NYT:

The Original Originalist

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Adam Freedman has this article in the City Journal:

With the passing of Judge Robert Bork at 85, America has lost one of its most influential legal scholars. Though media obituaries tend to focus on Bork's unsuccessful nomination to the Supreme Court in 1987, Bork's legacy is one, not of failure, but of enormous success.
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No Supreme Court nominee today dares disavow originalism or declare his or her sympathy with a "living Constitution" philosophy. When Elena Kagan faced Senate confirmation for the Supreme Court in 2010, she went out of her way to praise originalism as an interpretive method. As the future justice explained: "Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists."

Indeed we are. And for that, we should thank Robert Bork.

In constitutional criminal procedure, the Supreme Court has largely embraced originalism in its interpretation of the Confrontation Clause.  If we can extend that to Fourth Amendment remedies (not including exclusion of evidence) and to the Witness Against Himself Clause, we can make some real progress.

Notice I did not say "Self-Incrimination Clause."  There is no such clause in the Fifth Amendment.

Robert Bork

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Bill noted earlier today the passing of Robert Bork.  As an advocate of judicial restraint, Bork has an important place in American jurisprudential thought.  Courts have, in fact, exercised will instead of judgment, substituting their pleasure for that of the legislative body.  (Cf. Federalist No. 78.)  The Supreme Court has done that from Dred Scott v. Sandford (1857) to United States v. Alvarez (2012) and many times in between.

I did not agree with Bork on everything, though.  To this day, I shake my head when I read his words from 1971, "Constitutional protection should be accorded only to speech that is explictily political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic."  Porn is one thing, but to say that Congress could declare an official dogma on, e.g., global warming and forbid expression of a dissenting view is more than one bridge too far.

That said, Bork was an important force moving constitutional jurisprudence in the direction it needed to move.  Judicial activism was and remains a far greater danger than its opposite, which for want of a better term I call judicial refractivism.  Excessive deference to the legislative authority -- upholding acts that really are contrary to the Constitution as originally understood -- does happen, but it is far less common than judicial activism, striking down a constitutional law because the judge disagrees with it.  Judicial activism remains the principal danger, and we lost a strong voice against it today.

Emancipation Anniversary

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Seven score and seven years ago, our forefathers fixed the number one problem in the Constitution bequeathed to them by their forefathers.

The Constitution is indeed a "living document," in the sense that it changes.  The process by which it legitimately changes is set forth in Article V.  Let us raise a glass today to the most important of those changes.

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