The Supreme Court’s “anti-commandeering” doctrine holds that the federal government lacks authority under the Constitution simply to order state governments to implement federal programs or act affirmatively in other ways. Did Congress overstep this bound when it enacted the Professional and Amateur Sports Protection Act of 1992 (PASPA), a federal statute that with some exceptions forbids states to “authorize” sports gambling “by law”? That question has come up in a case in which New Jersey sought to repeal some of its old gambling laws. [Ilya Shapiro and David McDonald on Cato’s amicus brief participation supporting New Jersey’s petition for Supreme Court review in Christie v. NCAA et al.]
Posts Tagged ‘constitutional law’
Constitutional law roundup
- When government uses regulation to retaliate against someone’s politics, relief shouldn’t depend on whether the harassment would have silenced an ordinary citizen [Ilya Shapiro, Trevor Burrus, and Thomas Berry, Cato]
- More thoughts on the constitutional amendment process [Mike Rappaport, Liberty and Law] To what extent did Antonin Scalia’s thinking on Article V constitutional conventions change over the years? [Josh Blackman on this 1979 AEI roundtable, Paulette Rakestraw and Mead Treadwell/Ricochet] I debated the issue in April in St. Louis [Show-Me Institute] “Conservative groups pushing for a constitutional convention are just six states short of their goal.” [ABA Journal]
- D.C. Circuit panel, Judge Brett Kavanaugh writing, strikes down structure of Consumer Financial Protection Bureau (CFPB) as unconstitutional [Thaya Brook Knight, Ira Stoll back in 2013]
- Sounds like the ACLU’s internal “Civil Liberties Caucus,” as it’s been nicknamed, continues to lose clout within the org [David Meyer Lindenberg, Fault Lines]
- It’s not just Baltimore: unreasonable and unconstitutional police searches are common [Steve Chapman]
- A curious subject of academic wrath: constitutional “extremism” [Scott Greenfield]
Senator Mike Lee interviewed
18:24 well spent: Caleb Brown interviews Sen. Mike Lee (R-Utah) on separation of powers, criminal justice, the electoral college, executive powers and many other topics [Cato Podcast series]
“You Have a Constitutional Right to Record Public Officials in Public”
Ilya Shapiro and Devin Watkins:
In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP [United States Customs and Border Protection] agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.
Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.”…
The Ninth Circuit will hear Askins v. U.S. Dep’t of Homeland Security later this fall.
Supreme Court roundup
- Randy Barnett and Josh Blackman: yes, the confirmation process had gone wrong, but not necessarily in the way we’re told [National Affairs] A case against judicial restraint [Ilya Shapiro, same, related Cato]
- “Business and the Roberts Court without Scalia” [Jonathan Adler, related on supposed “pro-business” Court]
- SCOTUS should (again) step in to reject Obama end-run around advice/consent on appointment power [Ilya Shapiro and Thomas Berry, Cato]
- The disappointeds docket: ten cert petitions last term the Court should have granted [Mark Chenoweth, WLF] WLF’s term preview with Jay Stephens, Neal Katyal, and Daryl Joseffer;
- “Tiers” of constitutional scrutiny, without tears [Mike Rappaport, Liberty and Law]
- Prominent lawprof Mark Tushnet says with majority looming, liberals should drop their “defensive crouch constitutionalism” [Balkinization, responses at PrawfsBlawg by Paul Horwitz and Rick Garnett]
U.K.: cross-examination before jury deemed too hard on vulnerable witnesses
New court reforms proposed by the U.K.’s Ministry of Justice would do away with many criminal defendants’ right to cross-examine accusers before a jury. The rules provide that what are deemed “vulnerable” victims and witnesses, mostly in sex cases, will instead be allowed to undergo cross-examination recorded in advance for later play in court. [BBC] Here in the U.S., the Sixth Amendment’s Confrontation Clause might have a thing or two to say about that.
Randy Barnett podcast on Libertarianism.org
Self-recommending: Prof. Randy Barnett discusses his new book Our Republican Constitution with Trevor Burrus and Aaron Ross Powell for Cato’s Libertarianism.org (53:40).
Remember to mark your calendar for Cato’s 15th annual Constitution Day, Sept. 15, which coincides each year with the release of the Cato Supreme Court Review. Details here.
“Hamilton” and progressive constitutionalism
Will the runaway Broadway success “Hamilton,” by repositioning our nation’s origin story, reinvigorate progressive originalism in constitutional law? [David Post, Volokh Conspiracy]
Bonus: Alexander Hamilton’s role in the development of truth as a defense in libel law [Eugene Volokh]
Could the White House be “tyrant-proofed”?
How would one go about “tyrant-proofing” the U.S. presidency, after years in which many were happy to cheer the expansion of White House power so long as the office was held by someone *they* liked? Key point in Ben Wittes’s 3-part series at Lawfare: the hardest to tyrant-proof are not the extraordinary and covert national security powers held by the chief executive, but the everyday powers over the Department of Justice and regulatory agencies [parts one, two, three].
More: Neither Donald Trump nor his progressive opponents have shown themselves loyal to the principle of the rule of law [John McGinnis, Liberty and Law] Nature of the Presidency lends itself to authoritarianism and despite retrenchment under Coolidge and Ike, that’s been the trend for a century or more [Arnold Kling] And quoting William & Mary lawprof Neal Devins: “A President Trump could say, ‘I’m going to use the Obama playbook’ and go pretty far.” [Marc Fisher, Washington Post] And: Tyler Cowen on FDR, McCarthy, the politics of the 1930s-50s, and “our authoritarians” versus “their authoritarians.”
Constitutional law roundup
- Ilya Shapiro on round II of Fisher v. University of Texas, the racial preferences case [Pope Center]
- “Supreme Court Endorses Tribal Courts; Bad News For Corporate Defendants?” [Daniel Fisher on Sixth Amendment case U.S. v. Bryant]
- “Is The Consumer Financial Protection Bureau Unconstitutional?” [Susan Dudley]
- “Dueling perspectives on Lochner v. United States” [Andrew Hamm, SCOTUSBlog on Paul Kens vs. Randy Barnett debate, earlier]
- First Amendment and commercial speech: “Crazy Law Allows ‘Discounts’ for Cash but Not ‘Surcharges’ for Credit” [Ilya Shapiro on Expressions Hair Design case]
- Who ‘ya gonna call if you need a Third Amendment lawyer? [humor]