“How many unconstitutional administrative trials must one endure before getting the chance to argue your case in an Article III court? According to the U.S. Securities and Exchange Commission, the answer is at least two.” [Russell Ryan, Ashley Parrish, Ilya Shapiro, and William Yeatman on Cato amicus brief in Lucia v. SEC, a case that has already made a trip to the Supreme Court]
Most of us are familiar with the Constitution’s Takings Clause, which requires the federal government to pay compensation when it takes private property. Virtually all state constitutions contain similar provisions. But twenty-seven state constitutions go further than that by requiring the government also to pay compensation for “damaging” or “injuring” property.
Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article by Professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.
Of the many lessons, one is simple: getting a constitutional amendment on the books is only half the battle, and often not the more difficult half. [Ilya Somin, Jotwell]
Lawmakers in both houses of the Virginia legislature have approved resolutions endorsing the Equal Rights Amendment, a measure proposed by Congress in 1972. An Associated Press story, in line with proponents’ characterization, describes the actions in Richmond as a “ratification,” as “final,” and as making Virginia “the critical 38th state.” Is that the case?
— Walter Olson (@walterolson) January 17, 2020
The Office of Legal Counsel of the U.S. Department of Justice has issued an opinion concluding that because the requisite number of states did not ratify the Equal Rights Amendment before Congress’s previously imposed deadline, it cannot be adopted now without starting the amendment process over. [Keith Whittington] The ruling binds executive branch agencies including the National Archives, which per AP “said it would abide by that opinion ‘unless otherwise directed by a final court order.'”
Proponents say the time limit written into the original ERA shouldn’t count because it appeared in the measure’s preamble rather than its main text, and argue that some combination of Congress and the courts are free if they like to count as valid all extensions (whether assented to by a supermajority or by a bare majority), revival measures, and ratification votes taking place at later times, while not counting as valid five states’ rescissions of earlier approval. The case of the 27th Amendment, which was proposed with no time limit and did not reach the requisite number of states until more than two centuries later, suggests that contemporaneous “meeting of the minds” is not so intrinsic a feature of the amendment process as many legal scholars once assumed; on the other hand, a 1921 Supreme Court case, Dillon v. Gloss, confirms that Congress did not act unconstitutionally in prescribing a time limit. [more: Michael Stokes Paulsen, Yale Law Journal, 1993]
The result before long could be a face-off in which advocates claim the ERA has been duly adopted as the 28th Amendment to the Constitution, while others say it hasn’t. [Mike Rappaport, Law and Liberty]
More: If you accept some ERA proponents’ theory that time limits don’t apply *and* that states can never rescind, then — surprise! — we may already be over the required number of states to require Congress to call a balanced budget constitutional convention [Josh Blackman]
A proposal from my Cato Institute colleague Clark Neily: small claims courts for low-level police misconduct. Ilya Somin praises it as among the few constitutional law ideas “that are simultaneously good, original, and potentially useful in the real world.” [Volokh Conspiracy] More: Howard Wasserman (similar ideas), Scott Greenfield and some other thoughts on small claims.
- Hosanna-Tabor sequel: Court agrees to review Ninth Circuit decisions taking narrow view of “ministerial exception,” which restricts court review of some decisions by religious employers [SCOTUSBlog, Eric Rassbach; Joseph Cosby on Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel]
- Once again the Court is being asked to green-light open-ended claims of disparate impact liability in mortgage lending. Proximate cause principles offer a way to hold the line [Ilya Shapiro, Trevor Burrus, and Sam Spiegelman on Cato amicus in Bank of America v. Miami]
- Article I, Section 3 of the Constitution provides that the Chief Justice shall preside over an impeachment trial of the President in the Senate. Should it wish, however, the Senate will have wide latitude to overrule Roberts’s rulings [John Kruzel, The Hill]
- Regulatory agencies whose officials are unremovable amount to an unaccountable fourth (or fifth?) branch of government [Ilya Shapiro and James Knight on Cato amicus brief in Seila Law v. CFPB]
- Comcast Corp. v. National Association of African American-Owned Media, argued before the Court Nov. 13, originally appeared to hinge on the Ninth Circuit’s adopting a looser standard for allegations of race discrimination in contracting than did other circuits; as it has evolved, however, it may be decided on questions of pleading [Washington Legal Foundation and more from WLF’s Richard Samp, ABA Journal; Dominic Patten and Mike Fleming Jr., Deadline on underlying dispute; Howard Wasserman and followup]
- Nearly two years after joining the Court, Justice Neil Gorsuch now has a track record [Jacob Sullum, Michael Greve] Gorsuch may be joining Thomas in the position that a federal agency’s considered decision *not* to regulate should not be interpreted to pre-empt state regulatory power [James Beck on concurrence in Lipschultz v. Charter Advanced Services (MN), LLC]
“Craighead County, Arkansas officials use private company to run probation for people convicted of misdemeanors. The company charges probationers monthly fees, other fees on pain of arrest, which results in more fees. (On one day in 2016, of 34 defendants brought to court, only six were charged with crimes. The remaining 28 were in jail for failing to pay the company.) Voters elect new judges who promise to cease using the company, erase outstanding debts. Company: Which violates the Contracts Clause, Takings Clause. Eighth Circuit: Can’t sue the judges over that. The judges are entitled to modify probation conditions and discharge debts.” [John Ross, Institute for Justice “Short Circuit” summarizing Eighth Circuit ruling in Justice Network v. Craighead County]
- “North Dakota legislators attempt to retroactively change the terms of contracts between manufacturers and dealers of farm equipment. Well, crack open your Con Law casebook because that violates the Contract Clause of Article I, Section 10. So holds the Eighth Circuit (over a dissent), treating the reader to a history of the clause from 1789 to the New Deal and beyond.” [IJ “Short Circuit” on Association of Equipment Manufacturers v. Burgum]
- Subsidies conditioned on, and meant to promote, an official orthodoxy: California moves to approve $50 million state fund for film and TV production earmarked for producers who “share” state’s “values” on reproductive rights [Eugene Volokh]
- Not your usual combination: Cato Institute, Brennan Center, and Sierra Club join in amicus brief to challenge President’s powers under National Emergencies Act to divert funds appropriated for other purposes to construction of U.S.-Mexico wall [David Post]
- Judge Diarmuid O’Scannlain on textualism and the future of the federal judiciary [Federalist Society]
- “No person shall be disturbed in his private affairs, or his home invaded, without authority of law,” declares the constitution of Arizona. While judges in Washington have developed a distinctive jurisprudence based on the similar clause in their state’s constitution, the Arizona judiciary as yet has not [Timothy Sandefur]
- Does the Commerce Clause really empower the U.S. Congress to criminalize acts of animal cruelty “affecting” interstate commerce, whatever that means? [Jacob Sullum]
A Cato-centric selection:
- Massachusetts bans the most popular variety of self-defense firearms and that violates the Second Amendment, as SCOTUS should make clear [Ilya Shapiro and James T. Knight II on Cato Institute amicus brief in Worman v. Healey] Congress has never passed a law criminalizing the accessories known as bump stocks and the Executive branch can’t change that on its own [Trevor Burrus and James Knight, Guedes v. BATF]
- Three more Cato certiorari amicus briefs: With return of Little Sisters case, Court should make clear that scope of accommodation under Religious Freedom Restoration Act is not for executive agencies to expand and contract accordion-like [Ilya Shapiro and Sam Spiegelman] Berkeley, Calif.’s ordinance requiring disclosure of the purported risks of cell phone radio frequency (RF) exposure poses First Amendment questions of forced commercial speech [Ilya Shapiro and Michael Collins on return to SCOTUS of CTIA v. Berkeley] Supreme Court has rejected attempt to use Alien Tort Statute to assert universal jurisdiction over human-rights abuses in overseas business, but Ninth Circuit still hasn’t gotten the message [Ilya Shapiro and Dennis Garcia, Nestle v. Doe]
- Summing up the last Court term: speech by Miguel Estrada and a short video with Ilya Shapiro for the Federalist Society;
- “Fearful that the Supreme Court will reject a broad interpretation of the CWA’s [Clean Water Act’s] scope, environmentalist groups have been seeking to settle the Maui case before the Court rules.” [Jonathan Adler on Maui v. Hawaii Wildlife Fund]
- Another case of surprise plain meaning? Advocates argue that Congress didn’t really end Indian reservation status for much of the state of Oklahoma even if everyone at the time thought it did [Will Baude on Sharp v. Murphy; earlier on surprise plain meaning]
- “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know” [new book by Randy Barnett and Josh Blackman; described here, and discussed in this Cato video]
The video of Cato’s 18th Constitution Day forum, held September 17, is now online, with a line-up of eminent speakers including Tom Goldstein of SCOTUSBlog, Jan Crawford of CBS News, and Judge Thomas Hardiman of the U.S. Court of Appeals for the Third Circuit, who in the annual B. Kenneth Simon Lecture discussed judicial independence and service during good behavior. I moderate the third panel, on Property Rights, Antitrust, and the Census.
- Does the Constitution allow Arizona to frame a new tax in such a way that de facto, though not de jure, nearly all of it falls on out-of-state residents? [Ilya Shapiro, Cato]
- Writer and star of one-act play “isn’t a fan of America’s founding charter — which may be why her audiences are such big fans of hers.” [Andrew Ferguson, The Atlantic]
- Pentagon has lately developed aerial surveillance technology with near-panopticon capabilities. OK to deploy over home territory? [Cato video with Patrick G. Eddington, Arthur Holland Michel, and Jenna McLaughlin on Michel’s book Eyes in the Sky: The Secret Rise of Gorgon Stare and How It Will Watch Us All]
- Ilya Shapiro discusses New York Rifle and Pistol Association v. the City of New York [National Constitution Center We the People podcast; earlier here, here, and here] “Maryland’s gun permit system is challenged — and it’s probably unconstitutional” [my post at Free State Notes] “3-D Printed Guns & the First Amendment” [Federalist Society Policy Brief video with John Stossel and Josh Blackman]
- Tradcons are kidding themselves if they imagine they can get a better constitutional deal outside the current legal conservative movement with its commitment to a broadly fusionist originalism, argues John McGinnis [Liberty and Law] “Originalism as ideology” [Michael Greve]
- “Guam officials seek to hold referendum allowing voters to express their opinion about the future of the relationship between Guam and the United States but will only permit ‘Native Inhabitants of Guam’ to vote. Ninth Circuit: Which means restricting voting based upon race, which is explicitly prohibited by the Fifteenth Amendment.” [Institute for Justice “Short Circuit” on Davis v. Guam]