#18: Regime Politics

Today’s readings talk about the so-called “switch in time” that happened in 1937. It’s clear that the Court’s interpretation of the Commerce Clause–which was in stark contrast to the more expansive interpretation demanded by a variety of New Deal Programs–was a thorn in FDR’s side. His so-called “court packing plan” was framed as a solution to the high workload pressures facing the Court, but nobody ever believed this was FDR’s real purpose.

The public and members of Congress, who roundly supported FDRs other New Deal policies, reacted quite negatively to the proposal. But this isn’t why the plan was never implemented. As your textbook notes, the worst of the battle “was averted in large measure by the actions of the justices themselves” (Epstein and Walker 2014, 429).

The classic version of this story posits that Justices Roberts and Hughes changed their position on the constitutionality of many New Deal programs in direct reaction to the president’s threat to pack the Court. But why would justices–with their life tenure, guaranteed salary, and seeming independence from the political branches–bend to such pressure?

The classic version of the tale argues that it probably has something to do with protecting the legitimacy of the Court. Roosevelt’s court-packing plan was a transparent attempt to bully the Court into submission; it was clearly a shot at the Court’s independence from the political branches. Were the Court to suffer this humiliation, the ability of the Court to oppose the policy preferences of the dominant national governing coalition would be forever sabotaged.

Paper Topic #18: What explains the seeming “switch in time?” Was this just a continuation of an evolution of policy positions on the part of two of the justices that might have happened regardless of FDR’s court packing plan? Or was the switch a direct result of this pressure? In any event, did the switch make a difference in the public’s esteem of the Court (or of FDR, himself)?

Suggested Reading: Caldeira, G. A. (1987). “Public Opinion and the US Supreme Court: FDR’s Court-Packing Plan.” American Political Science Review81(4), 1139-1153.

#17: The Meaning of Commerce

Our Commerce Power readings trace the development of the Commerce Power over several important spans of time: 1) before the New Deal, 2) the New Deal era, 3) the Commerce Power heyday, and 4) the modern era where the Commerce Power is seemingly in decline. The readings are formatted this way because of the sheer volume of important jurisprudence to cover. It’s no surprise, really; the Commerce Power is among the most important and wide-ranging powers that Congress has. Its use of the Commerce Power has long been controversial.

A reasonable starting point for understanding of the Supreme Court’s rollercoaster relationship with the Commerce Clause is to determine what in the world this Clause meant when it was enacted. As you see in the readings for today, the Court has always shown an interest in making arguments about the original meaning and/or original intent of the Commerce Clause.

As you might imagine, fiscal conservatives today argue that the Commerce Clause was originally intended more as a call to facilitate trade (and keep states from mucking it all up) than to exercise regulatory power over it. Take, for example, this Heritage Foundation column:

“In its original meaning, the clause functioned primarily as a constraint upon state interference in interstate commerce.”

This is in contrast, of course, to the view of progressives, who argue that the Commerce Clause was always intended to create a strong regulatory role for Congress. Contrast the Heritage Foundation account with this taste of the account provided in this column from People for the American Way:

“It is clear that the Framers who met in Philadelphia wanted the new Constitution to establish a comprehensive national legislative power to rationalize the fraught field of interstate commerce.”

So, it’s clear that the results of an originalist analysis of the Commerce Clause is in the eye of the beholder.

Paper Topic #17: Given what we know about the history of the country under the Articles of Confederation and the interests and concerns of the folks who wrote the Commerce Clause, what is the most plausible original meaning of that Clause? Which camp is closest to the original meaning, the pre-New Dealers, the Commerce Clause expansionists, or the modern Republican Court?

Suggested Reading: Barnett, R.E. 2001. “The Original Meaning of the Commerce Clause.” U. Chi. L. Rev. 68(Winter):101.


#16: Preempting Pot

Soon, we’ll be reading a commerce power case called Gonzales v. Raich (2005). In that case, the Court held that Commerce Clause gives Congress the power to regulate the intrastate cultivation and possession of marijuana for medical use. Because the Controlled Substances Act (21 U.S.C. 801) was a constitutionally permissible use of federal power, the law could be validly applied to California residents who possessed marijuana for medical use under California’s Prop 215.

“The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “`superior to that of the States to provide for the welfare or necessities of their inhabitants,'” however legitimate or dire those necessities may be. Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, so too state action cannot circumscribe Congress’ plenary commerce power.”Compassionate Use Act of 1996). The Court used the language of preemption when discussing the right of the federal government to pursue violations of the Controlled Substances Act in California, even when the violators were using marijuana in accordance with what is permissible under state law:

The Court’s decision in Raich, however, did not fully “preempt” California law. While the federal government reserved its right to enforce its stricter marijuana laws in California, state enforcement agencies were not obliged to follow.

This enforcement conundrum has only increased as more states have adopted more permissive marijuana laws. In light of the recent decriminalization measures in Colorado and Washington State, the Department of Justice has had to confront this difficulty head-on.

In a Senate Judiciary Committee hearing last year, the Deputy Attorney General addressed the problem of enforcement. Read this summary of the hearing.

In the hearing, Deputy AG James Cole invoked the 10th Amendment in his argument about why the federal government will not challenge the legalization of marijuana in Colorado and Washington. This has flummoxed some conservative opponents of legalization. Read this WND article about the controversy. In it, Rep. Cory Gardner (R-CO) is quoted as asking:

“Eric Holder has said that states cannot opt out of federal law, yet here he is doing the exact opposite. What is the administration’s guidance on when a state can assert 10th amendment freedoms and when they can’t?”

This issue is on its way to the courts, and Colorado is in the hot seat. Colorado is being sued by neighboring states over the legalization. SCOTUSblog has a primer on the litigation here. Colorado is now also being sued by residents of the state. Read this article for a quick background on the issue.

Paper Topic #16: What does this conflict–and the DOJ’s apparent capitulation on marijuana laws–say about federalism today, especially in light of the recreational use legalization laws in Washington and Colorado? How will Colorado fare in the litigation instigated by Nebraska and Oklahoma?

Suggested Reading: Renehan, A. (2014). Clearing the Haze Surrounding State Medical Marijuana Laws: A Preemption Analysis and Proposed Solutions. Hous. J. Health L. & Pol’y14, 299-299.

Related articles

#15: Wrongly Fired

The 11th Amendment states that:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Before its ratification, the Court held in Chisholm v. Georgia (1793) that states could be sued in federal court. The Eleventh Amendment was ratified in response to that decision. After its ratification, the Court held in Hollingsworth v. Virginia (1798) that state sovereign immunity had been established by the 11th Amendment.

Subject to some exceptions, then, state government actors have sovereign immunity from lawsuits. But the actual text of the 11th Amendment does not say that sovereign immunity extends to cases where states are sued by their own citizens. The Court extended sovereign immunity to cover this sort of situation in Hans v. Louisiana (1890). However, the Court seems to have backtracked on this, at least a bit. Read the excerpt of Nevada Department of Human Resouces v. Hibbs (2003) on WebCampus. Notice how the Court is allowing this abrogation of the 11th Amendment’s sovereign immunity requirement based on the fact that Congress was acting under section 5 of the 14th Amendment.

But it is still clear that states are afforded considerable protection from lawsuits in federal court, even lawsuits filed by their own citizens. Read this WSJ article about the “Facebook Likes” case, Bland v. Roberts (2013). Note that, while the 4th Circuit seems to have sided with the fired employees, these employees are unlikely to be entitled to back pay if they win at trial. Also relevant, though, is the Supreme Court’s sovereign immunity decision in Virginia Office for Protection and Advocacy v. Stewart (2014). Click through some of the links at the SCOTUSblog VOPA v. Stewart page, especially this analysis by Schwinn.

Paper Topic #15: How is the issue of sovereign immunity different in this case than it is in Hibbs and/or VOPA? What would have to happen in order for the workers in Bland to collect damages? Is this kind of sovereign immunity still relevant in today’s America?

Suggested Reading: Gates, H. M. (2012). Closing The Gap: The Fourth Circuit’s Narrowing Of The Ex Parte Young Exception In Virginia V. Reinhard And The Implications For Federal Rights. Seton Hall Circuit Review6(2), 1.

#14: Federalism and Same-Sex Marriage

Equality Bacon

Read for 10/21/2015

You might remember a while back when many of your facebook friends changed their profile pictures to red equals signs. This was the round before everyone rainbowized their profile pics. This was about the time that the Court was preparing to hand down its decision in U.S. v. Windsor (2013). Read the excerpt I’ve posted in the content section on WebCampus. How is it that what seems like a 14th Amendment equality issue could morph into a federalism question? Read this insightful SCOTUSblog post that helps to show how the question came to be framed in these terms.

Of course, it has also become very trendy for conservative politicians to abandon the position that “marriage should legally be between one man and one woman” and move to a position that calls for each state to make that determination for itself. One recent example of this is Rep. Joe Heck, who recently made an interesting argument on KNPR’s “State of Nevada.” First, he averred that he still believes (“personally”) that marriage is between a man and a woman. He went on to say that there should be no federal role in defining marriage as anything other than that, although he thought the states should be able to decide for themselves. Interestingly, he also thought that the process currently taking place in the federal courts, whereby these institutions are now regularly striking down state-level bans on same sex marriage, were an appropriate part of the process of determining the legality of same sex marriage. As we all know, of course, the federal courts are part of the federal government. Heck did not elaborate on what he thought of the role of the federal courts in using the federal constitution to invalidate state same sex marriage bans.

For the Alabama Supreme Court, however, this debate is far from over. A federal judge overturned Alabama‘s 2006 ban on same sex marriage. Even though the US Supreme Court refused to issue a stay of the same sex marriages in anticipation of the Supreme Court ruling on the case, the Alabama Supreme Court has taken the matter into its own hands. This Washington Post article gives some of the early details. The Alabama Supreme Court issued a bewildering per curiam opinion, which can be found here. In it, they seem to suggest a number of contradictory reasons for refusing to abide by the federal court’s order. Among these reasons is simply that the Supreme Court’s decision in Windsor was wrong, so the Alabama Supreme Court is not bound by it.

In the wake of Obergefell v. Hodges (2015), you’d think that Alabama would have fallen in line. But you’d be wrong. Indeed, a request to disregard Obergefell is currently pending in front of the Alabama Supreme Court. Read this for an update. In any event, the Obergefell decision has essentially settled the primary question of marriage equality (setting aside the major issue of First Amendment rights). However, the implications of Windsor’s lesser-known companion case Hollingsworth v. Perry (2013) might be construed as having more important implications for federalism than Obergefell did.

Paper Topic #14: Outside of the same sex marriage context, what impact does Hollingsworth v. Perry (2013) have on state sovereignty  and federalism aside from those related to marriage equality?

Suggested Reading: Young, E.A. and Blondel, E.C. 2012. “Federalism, Liberty, and Equality in United States v. Windsor.” Cato Supreme Court Review 2012-2013:117-147.

Palmer, S. 2015. No Legs to Stand On: Article III Injury and Official Proponents of State Voter Initiatives. UCLA L. Rev.62, 1055.

#0: Welcome to PSC 330

D69898_11Congratulations! You’ve found your way to the PSC 330 blog. Here, I’ll be posting short articles that help to link the content of the course to what’s going on in the world. I’ll let you know on Twitter when a new post is up by tweeting with the hashtag #PSC330. This feed will also include links to additional news items or opinion pieces that are relevant to our course. If you’re not on Twitter, you can check the WebCampus Twitter widget or look on my website: rebeccagill.net. Just click on the “330” link on the menu bar.

Many of these blog posts will pose a question about the the breadth, limits, and interaction of government powers. You will choose from among these questions the topic for each of your three short papers in the course. Really, though, you’ll probably need to narrow the question a bit and form it into an appropriate argument that you can defend in your short papers. There’s much more information about this on our WebCampus page in the “Short Papers” folder.

The material on the blog is required, just as is the material in the book. You need to read the appropriate book section and the blog before you come to class. Each blog post will include the date by which I expect you to read it. I will be posting the blogs several class periods ahead so that you have the information you need to get started on your papers. I’ll post these a bit in advance, but not too far ahead; I want to make sure I have the chance to update these with any new cases or content that is relevant to the discussion.

The blog content will feature prominently in most of our classroom discussions, and it is fair game for both the in-class clicker questions and the exams. Remember, if I preface a link by saying “read this,” then the material on the linked page is required, too. Enjoy! 


#11: Independent Watchdogs

Read for 10/12/2015.

In the arena of domestic affairs, there has been a lot of separation-of-powers debate surrounding the attempts of Congress to reform the financial system. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2009), the Court struck down an arrangement in Title I of the Sarbanes-Oxley Act. Here’s a quick summary of the act from the SEC’s website:

“On July 30, 2002, President Bush signed into law the Sarbanes-Oxley Act of 2002, which he characterized as “the most far reaching reforms of American business practices since the time of Franklin Delano Roosevelt.” The Act mandated a number of reforms to enhance corporate responsibility, enhance financial disclosures and combat corporate and accounting fraud, and created the “Public Company Accounting Oversight Board,” also known as the PCAOB, to oversee the activities of the auditing profession.”

In a 5-4 decision, the Court held that the Act violated the separation of powers doctrine. This is because it gave broad powers to the PCAOB (an entity of the executive branch) while simultaneously keeping the President from appointing or removing the members of the PCAOB. Read this CS Monitor article decribing the separation of powers issue in Free Enterprise Fund v. PCAOB.

As a 2012 article in Compliance Week explains, the most recent attempt at financial sector regulation, known as “Dodd-Frank”, is facing a similar legal challenge. The suit’s main points are that the CFPB was established with too much independence—that Congress cannot set the CFPB budget (its funding is determined as a total portion of the Federal Reserve’s budget); that the president cannot remove the CFPB director except in special circumstances; and that the courts must give CFPB decisions extra deference.

“As a whole, Dodd-Frank aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat,” said former White House Counsel C. Boyden Gray, attorney for the plaintiffs and founder of Boyden Gray & Associates.

“Dodd-Frank is to financial reform like a tsunami is to a slightly dry lawn—all-enveloping, hugely destructive, and pretty much unaccountable to whoever unleashed it,” said Sam Kazman, CEI’s general counsel. (The rest of the article is here.)

Part of the problem with Dodd-Frank, according to its critics, is that it violates the nondelegation doctrine in much the same way that Sarbanes-Oxley did. Read this short analysis by Professor Bainbridge.

Indeed, a lawsuit challenging the constitutionality of Dodd-Frank on separation of powers grounds is in the works. As one conservative analysis explains,

“The challenge to Dodd-Frank is … serious. As former White House Counsel C. Boyden Gray and his co-author, Adam White, wrote in a recent Weekly Standard cover story: “Dodd-Frank is a gift to big banks,” and “Even if we take President Obama, Sen. Dodd, Rep. Frank, and the rest of Dodd-Frank’s supporters at face value when they protest that they actually intended to rein in Wall Street banks, the laws they passed accomplish the opposite result. Intentional or not, a kiss is still a kiss.”

“Dodd-Frank’s kiss is intensified by an unconstitutional regulatory structure. The Consumer Financial Protection Bureau grants its director czar-like power, combining the authority with little legislative, executive or judicial oversight. Similarly, Dodd-Frank’s Orderly Liquidation Authority authorizes unaccountable corporate death panels, which are unrestrained by meaningful judicial scrutiny, while the Financial Stability Oversight Council has unchecked power to define “too big to fail.” In each instance, Dodd-Frank ignores our Constitution’s mandate for separation of power into three branches of government, housing it instead in one unaccountable agency.” (The rest of the article is here.)

The decision to keep the new agencies independent from the Fed and other executive agencies accountable to the President was a conscious one. As this HuffPo article explains:

“Specifically, Dodd’s bill takes away the Fed’s regulatory power in some key areas. “I really want the Federal Reserve to get back to its core enterprises,” Dodd said. “We saw over the last number of years when they took on consumer protection responsibilities and the regulation of bank holding companies, it was an abysmal failure. So the idea that we’re going to go back and expand those roles and functions at the expense of the vitality of the core functions that they’re designed to perform is going in the wrong way.” …

“Dodd said that despite removing a fair amount of regulatory authority from the Federal Reserve, the bill shouldn’t be seen as a criticism of Chairman Ben Bernanke himself. “This is not about ego,” he said. “It’s about putting together an architecture that works.” …

“Dodd’s bill protects the independence of financial accounting standards …”

Topic #11: Given what we know about the Supreme Court’s separation of powers and nondelegation jurisprudence, will these independent agency provisions from Dodd-Frank survive judicial review? Is it even possible for the Congress to develop a mechanism for creating truly independent watchdog groups?

Suggested Reading:

#12: Separation of Powers in Foreign Policy

Read for 10/14

The Supreme Court’s decision in MBZ v. Clinton (2012) is an example of a three-way separation of powers battle. Amanda Frost over at SCOTUSblog summarizes the debate this way:

“Federal law requires the Secretary of State to record the birthplace of an individual born in Jerusalem as “Israel,” which is at odds with State Department policy. The question for the Court in M.B.Z. v. Clinton … is whether that law interferes with the President’s constitutional authority to recognize foreign nations, and whether that dispute between the branches is a political question beyond the power of the courts to decide.”


More details can be found in this National Journal article.

The Court’s decision in MBZ v. Clinton (2012) did little to clear up the dispute between the executive branch and the legislative branch; however, it did assert the power of the judiciary to decide the dispute. Read Lyle Denniston’s astute commentary on the Court’s decision.

Paper Topic #12: As Lyle points out, the question remains as to whether Congress has the power to legislate about how a birthplace is listed on a passport. How will the lower courts answer this question? Is § 214(d) of the Foreign Relations Authorization Act constitutional? What implications will the decision have for striking a balance in this foreign policy separation of powers game?

Suggested Reading: Hand, A. (2012). Forbidden Territory or Well-Defined Boundaries-MBZV Clinton and the Overzealous Application of the Political Question Doctrine. Duke J. Const. L. & Pub. Pol’y Sidebar7, 61.

Viewing Videos in Blog Posts

Because of the way that some of the content is presented, you may occasionally see a big blank space in a blog post where I’ve promised a video or some other content. This is covered in OIT’s “Known Issues” section. Here is what they say about the matter:

A security setting in your browser may be preventing you from seeing content in your courses.  If you click on a link to content pages for your course, it will either appear as a blank page or a pop up will appear warning you of unsecure content. Allowing mixed content will resolve this issue.

Note: Firefox and Chrome does not allow you to save the settings below.  Therefore, the fixes for Firefox and Chrome must be done each time you visit the pages that have blocked content.

Browsers Affected:  Internet Explorer 7+, Firefox 20+, Chrome

Issue (by IE version):

  1. Internet Explorer 7 & 8: Navigation to page has been canceled
  2. Internet Explorer 8: Security warning: Do you want to view only the webpage content that was delivered securely? (Click No to display all content)
  3. Internet Explorer 9: Page will show up blank with a warning at the bottom of your browser window indicating that content has been blocked and prompting you to Show All Content

Issue in Firefox and Chrome

  1. The page may show up incorrectly formatted and/or certain items may not show up at all.

Fix for Internet Explorer:

  1. Click Tools on the top of your Internet Explorer window or the Gear icon in the upper right hand corner.
  2. Select Internet Options.
  3. Click the Security tab.
  4. Click the Internet icon.
  5. Click Custom level.
  6. Locate Display mixed content under Miscellaneous.
  7. Click the radio button next to Enable (the default setting is” Prompt “).
  8. Click OK to save your changes.

Fix for Firefox

  1. Check for a shield icon near your back button at the top of your screen:
  2. Click the shield icon and change the “Keep Blocking” to “Disable Protection on This Page”
  3. If the page, does not refresh, manually refresh the page.  The content should be displayed correctly.
    Fiefox - Disable Protection.PNG

Fix for Chrome

  1. Click the shield icon at the end of the address bar
  2. Click on Load unsafe script
  3. Return to the page that was not displaying properly and you should see the missing content
    Chrome - Shield.png

If you continue to have difficulty accessing the blog material, be sure to contact the OIT Helpdesk.