Orin Kerr at Volokh Conspiracy sorts through the complications of a Fifth Circuit case that has arguable Fifth, Fourth, and First Amendment angles.
65 years ago this week President Harry Truman by executive order seized control of the U.S. steel industry, then facing a labor impasse. The Supreme Court didn’t let him get away with it, despite his lawyers’ claims that the emergency arising from the Korean War, then in progress, gave him inherent power to act in the national interest. The case of Youngstown Sheet & Tube v. Sawyer was to set an outer bound on Presidential power, which continues to be felt in cases to this day. I’ve got a write-up at Cato at Liberty.
- SEC’s use of in-house judges violates constitutional principle of independent judiciary [Thaya Brook Knight, Ilya Shapiro, Devin Watkins, and Ari Blask]
- Have you checked out the annual Cato Supreme Court Review on the 2015-16 term, available both in-print and free online? Among the contents: Roger Pilon on Scalia’s originalism; Andrew Trask on the class action case of Tyson Foods v. Bouaphakeo (and more); Steven Calabresi on originalism and liberty; Steven Eagle on wetlands law; Harvey Silverglate and Emma Quinn-Judge on McDonnell and honest-services-fraud prosecutions of state and local officials; and Glenn Reynolds looking ahead to this (2016-17) term;
- Federal agency can’t unilaterally rewrite unambiguous statutory provision [Ilya Shapiro and Frank Garrison on Cato certiorari amicus in FLSA tip-pooling case of National Restaurant Association v. Department of Labor]
- “You Shouldn’t Be Criminally Liable If You Don’t Have a Guilty Mind” [Ilya Shapiro on Cato certiorari brief in mens rea case of Farha v. U.S.; related on mens rea, Orrin Hatch, Time]
- Court must resolve constitutionality of CFPB structure, especially now that DoJ itself agrees it’s unconstitutional [Thaya Brook Knight and Ilya Shapiro, more]
- In ineffective-assistance-of-counsel case that might hinge on whether drug defendant was bound to be convicted anyway, Court should not sidestep the historically significant phenomenon of jury nullification [Cato podcast with Tim Lynch on Lee v. U.S.; more on case from Amy Howe at SCOTUSBlog on oral argument and from Lynch at The Hill]
Ilya Shapiro and David McDonald describe the background of the Eighth Circuit case of Niang v. Carroll, in which Cato has filed an amicus brief:
…the Missouri Board of Cosmetology and Barber Examiners (an administrative board made up primarily of practicing barbers and cosmetologists, as well as the owners of in-state cosmetology/barbering schools) has declared that anyone wanting to braid hair professionally must be a licensed cosmetologist or barber—despite the fact that neither licensing program offers any training whatsoever in the [African hair-braiding] services [Ndioba “Joba”] Niang and [Tameka] Stigers intend to offer. Defended as necessary to protect Missouri’s consumers from the health, safety, and fraud risks caused by untrained hair braiders, this licensing regime is actually a thinly disguised cartel in which insiders have built up arbitrary and expensive licensing requirements in an effort to limit competition.
Pacific Legal Foundation and Goldwater Institute have also taken an interest in the Niang. case. Relatedly, Scalia/George Mason law professor recently published an article in the Yale Law Journal Forum, “The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?” For decades courts reviewed occupational licensure laws under a very relaxed rational basis test under which challengers were unlikely to succeed unless they could point to, say, a violation of the Bill of Rights. “Recent precedent, however, suggests that courts are becoming more protective of what has traditionally been considered a subset of liberty of contract: the right to pursue an occupation.” Prof. Bernstein (via his Volokh blogging) also has an interview with Reason on the ideas in the piece.
Yesterday, in Bethune-Hill v. Virginia State Board of Elections, the Supreme Court ruled unanimously that a lower court had been too indulgent toward race-based drawing of district lines, a process subject to scrutiny under the Equal Protection Clause. Although the decision makes at most a small difference in the law, I write at Cato that the Court’s relatively unified stand serves as a testament to the far-sightedness of Justice Sandra Day O’Connor, who was roundly excoriated in the New York Times and elsewhere after warning in a landmark 1993 decision that “Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions.” Two more views: Rick Hasen, Richard Pildes. (Also reprinted Newsweek; and see Kimberly Strawbridge Robinson, BNA Bloomberg coverage, thanks for quotes).
- Congress’s enumerated powers don’t extend to making this local bar fight a federal hate crime [Ilya Shapiro on Cato brief in United States v. Metcalf, Eighth Circuit]
- On this point, at least, history’s verdict went with President Andrew Johnson: Congress can’t entrench Cabinet officers if the President no longer wants them to serve [Mental Floss]
- “Video: Ilya Shapiro on judicial abdication and the growth of government” [Acton Institute]
- “Our decision is about the First Amendment, not the Second.” Eleventh Circuit en banc strikes down Florida law restricting doctors’ speech with patients about guns [Eugene Volokh; quote is from Pryor concurrence in Wollschlaeger v. Governor]
- In the mail: paperback reissue of Michael Stokes Paulsen and Luke Paulsen, The Constitution: An Introduction [Basic]
- “Federal Appeals Court Nixes Blanket Drug Screening of State College Students” [Jacob Sullum]
I joined Virginia Prescott for episode 4 of the interesting Civics 101 podcast series, hosted by New Hampshire Public Radio, this one covering the Article V constitutional amendment process. You can also find it at NPR and AudioBoom. Description:
It’s been 25 years since the last constitutional amendment was ratified. How hard is it to change our most sacred document? We discover that there are not one, but two ways to amend the constitution – and one of them has never been used. Walter Olson, senior fellow of the Cato Institute explains that the founders didn’t exactly spell the process out clearly.
— Charlie Eastaugh (@inapposite) February 3, 2017
David Lat, in a brief assemblage of Antonin Scalia anecdotes, gives this one:
“…A lot of stuff that’s stupid is not unconstitutional.”
“I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.”
And now Charlie Eastaugh on Twitter has posted the above picture. If you’d like your own new version, he sells that too.
P.S., a Twitter exchange shedding more light:
— Christopher J Scalia (@cjscalia) February 11, 2017
My first piece for Quartz: why lawsuits over President Trump’s foreign business interests are likely to be more a nuisance than a knockout blow, even if his opponents identify potential violations of the Emoluments Clause. Excerpt:
Two aspects of the Clause in particular must be causing Trump’s lawyers angst: It’s worded as a no-fault provision, and it sets no minimum threshold. That means a present or emolument could tip the scales, even if it’s meant innocently on both sides and is very small. And the realities of an international hospitality and real estate business make for lots of possible triggers both large and small.
Even if Trump fails to comply with the Clause, however, the courts aren’t obliged to provide a broad remedy. A case that manages to get over the standing hurdle might result in a narrow ruling ordering the president’s business, say, to refund a single disputed payment. Before resorting to wider injunction powers, as groups like CREW urge, judges would need to consider what’s known as the political question doctrine under which the courts have chosen to say out of some issues they see as better suited for other branches of government—or for voters—to address.
A fresh-outta-the-gate lawsuit asks the courts to step in to prevent President Donald Trump from violating the Constitution’s Emoluments Clause through his business dealings. So, Josh Blackman asks, what’s its argument for standing under Article III? Basically, it’s that “because CREW is spending time on Trump’s emolument issue, they are not able to do things they would otherwise do.” That’s remarkably weak, even under what’s left of such liberal precedents as Havens Realty Corp. v. Coleman (1982), and unlikely to persuade the courts. The ACLU is biding its time while preparing a stronger eventual case for standing by looking for a hotel or other competitor that can plausibly claim to have lost business because of transactions involving the Trump Organization and foreign states that (it expects to argue) violate the clause. Even if litigants succeed in obtaining standing in some case, they will still face a daunting barrier in the state of the doctrine on justiciability and political questions, which could lead the courts to step back and defer to Congress as the appropriate branch to devise a remedy. Earlier here.
More: Jonathan Adler on Twitter comes to similar conclusions about standing — “It’s as if complaint is just a PR exercise” — and notes that Prof. Erwin Chemerinsky, who backs the new suit, argued earlier that Texas and other states, for lack of injury, had no standing to challenge the Obama administration’s DAPA immigration action. “If no standing because Texas had ‘choice’ not to issue drivers licenses, CREW has a choice not to worry about emoluments.” And from Derek Muller:
I wondered if Chemerinsky's suit v. Trump for an Emoluments Clause violation was justiciable, so I checked his Fed Jur book for answers: pic.twitter.com/xtv87pIQ9I
— Derek T. Muller (@derektmuller) January 22, 2017
I wondered if Tribe's suit v. Trump for an Emoluments Clause violation was justiciable, so I checked his Con Law treatise for answers: pic.twitter.com/wiCN4xW85p
— Derek T. Muller (@derektmuller) January 23, 2017