Category Archives: Law: Constitutional Law

Attention Law Review Editors

Posted on February 8, 2023 by Michael Froomkin

The odds that any actual law review editors read this blog is vanishingly small, but if you, gentle reader, happen to know one, please tell them about this terrific article, Saving Democracy from the Senate, co-authored with one David Froomnkin, that they might want to publish in their journal.

This article is the first to take stock, in a systematic and comprehensive way, of the constitutional and statutory avenues available for reforming the malapportionment of the U.S. Senate. Collecting together the various options available enables reformers to think both programmatically about the normative choices at stake and strategically about a reform agenda. This in itself is a substantial contribution, not just to constitutional theory but also to ongoing practical efforts to reform the legal architecture of U.S. democracy. Moreover, by systematizing these considerations, the article also helps to make clear the relationship between statutory and constitutional reforms of the Senate, proposing a two-track strategy for reformers.

While the work of synthesizing the options and providing a comparative analysis is the most significant contribution, the article also provides several significant and novel analytical contributions that advance legal debates in these areas:

(1) The meaning of the Article V Entrenchment Clause. The article’s claims that (a) disempowering the Senate and (b) abolishing the Senate would not violate the Entrenchment Clause are claims that have been made before, although rarely. But they are not claims that have ever, to our knowledge, received extensive analysis. The article provides this extensive analysis, explaining why a range of ambitious constitutional reforms of the Senate would not violate the Entrenchment Clause and responding to objections.

(2) The referent of the Article V Entrenchment Clause. We are not the first to suggest that the Constitution could be amended to remove the Entrenchment Clause and then subsequently amended to alter the composition of the Senate. But we provide a crisper analysis of the reason than scholars have done previously. The reason is that the referent of the Entrenchment Clause is not a provision in Article V but a provision in Article I. The Entrenchment Clause, by its language, is not a self-entrenching clause.

(3) Article V and Equal Protection. The article provides a novel argument about the relationship between the Entrenchment Clause and the application of equal protection principles to the Senate. Orts in 2019 made a related argument, but his suggestion that Congress could reapportion the Senate by statute takes an idiosyncratic view of the Entrenchment Clause. We advance the more restrained argument that, while the Entrenchment Clause at present bars the application of equal protection principles to the Senate, amendment of the Constitution to remove the Entrenchment Clause would enable reapportionment of the Senate under Reynolds v. Sims.

(4) At-large Senators. Building on our argument about what the Entrenchment Clause prohibits—and what it does not—we explore the addition of a substantial number of nationally elected Senators to make the Senate more representative of the Nation. Whether or not we kept the existing Senators, no state’s “equal Suffrage” would be altered.

(5) Statehood. The article surveys the relevant legal authorities on the admission of new states, compiling an extensive range of relevant material. In the course of discussing the currently most salient cases of Puerto Rico and DC, the Article analyzes a Twenty-third Amendment issue that has not been extensively discussed.

(6) Breaking up (and merging) states. The article provides novel analysis of practical challenges confronting breakups (and, analogously, mergers) of states. It also suggests a promising policy response to these challenges, arguing that federal legislation to mitigate states’ costs and help to incentivize state breakups would be feasible, desirable, and constitutional. This prescription is, to our knowledge, original—perhaps in part because scholars have not yet grappled with the magnitude and stakes of the problem requiring a remedy.

Although we canvas a very wide variety of alternatives, and we weigh the difficulties, virtues, and vices of each, our recommendations center on certain constitutional reforms and the admission of a few new states.

All this, and yet even with the footnotes it’s still under 30,000 words!

 

Posted in Law: Constitutional Law, Law: Elections, Law: Reading the Constitution, Writings | 1 Comment

Five Random Mysteries

Posted on March 29, 2022 by Michael Froomkin

  1. A constitutional question. Why do people who think Donald Trump won the 2020 election think he’s eligible to run again in 2024, when the 22nd Amendment to the Constitution says, “No person shall be elected to the office of the President more than twice.”? (Gary Trudeau wonders this too.)
  2. An ID theft ‘prevention’ question. What is the point of (for pay post-website-breach) so-called ID-theft-prevention services sending me notices that my email has been found on some (unspecified) hacker site and I should change my (unspecified) password? I have few emails and many passwords, all unique except the worthless ones. How am I supposed to figure out what to do? Why not send me the password if it’s compromised anyway so I could search my password manager and password spreadsheet and change it?
  3. A basketball question. Why does the NBA penalize teams for taking good shots that miss when it doesn’t penalize bad shots? The NBA uses a shot clock to force teams to move quickly to score. Ordinarily a team has 24 seconds from getting possession to attempt a shot on pain of losing the ball. If they miss but hit the rim and rebound, the clock is reset to 14 seconds. That makes sense if the offense took the shot with fewer than 14 seconds remaining on the shot clock, and matches how the clock is reset if the other teams fouls or kicks the ball when there are fewer than 14 seconds left on the shot clock. But unlike fouls and kicks, where taking the ball out on the side never costs a team shot-clock seconds but only adds to them if the shot clock is running down, when a team shoots with more than 14 seconds on the clock, misses but hits the rim, then the short clock is shortened to 14 seconds. This just penalizes a team for quick offense. The absurdity of it is even clearer when you consider what happens to a team that attempts a shot when there are more than 14 seconds on the shot clock, but the shot is so bad that it doesn’t hit the rim — that wild shot has no effect on the shot clock at all! The incentives are all wrong: the NBA should reward good shots more than very bad ones rather than the other way around.
  4. A religion in the public sphere question. How come more evangelicals don’t entertain the idea that COVID was a plague sent to punish us for electing Trump?. Goodness knows they’ve claimed all sorts of earlier natural disasters were chastisement for progressive policies.
  5. A shopping question. You have to figure Gatorade is suspicious given the origin story with U. Florida…but this bad? Maybe it’s a good thing G2 is missing from stores? And is lemon-lime G2 cancelled? It does seem to have gone missing from the G2 website.
Posted in Basketball, ID Cards and Identification, Law: Constitutional Law, Shopping, Trump | Comments Off on Five Random Mysteries

On the Legality of Mandatory Vaccinations Rules for Highly Communicable Diseases

Posted on August 2, 2021 by Michael Froomkin

I presume it’s a no-brainer in most states that if a private employer wants to require that employees be vaccinated or wear masks on the jobs then the employer can do this unless the employee has a legitimate medical reason not to, in which case there would be an ADA issue. If the objection is religious (e.g. Christian Scientists), there would be a claim for a reasonable accommodation if one can be arranged.

But what if it’s the government making the order? Leaving aside for a minute the issue of the policy wisdom of a governmental mandatory vaccine order, does the Constitution permit the government, state or federal, to require obedience to a state’s duly promulgated mandatory vaccination rule, assuming the rule has exceptions for medical and religious reasons?

Comes now the 7th Circuit, in a 3-0  opinion written by no less than Judge Easterbrook, to say in Klaassen v. Trustees of Indiana Univ. that this is not a hard case at all:

Given Jacobson v. Massachusetts, 197 U.S. 11 (1905), which holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2. Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough protection for their interests and that courts should not be as deferential to the decisions of public bodies as Jacobson was, but a court of appeals must apply the law established by the Supreme Court.

Plaintiffs invoke substantive due process. Under Washington v. Glucksberg (1997), and other decisions, such an argument depends on the existence of a fundamental right ingrained in the American legal tradition. Yet Jacobson, which sustained a criminal conviction for refusing to be vaccinated, shows that plaintiffs lack such a right. To the contrary, vaccination requirements, like other public-health measures, have been common in this nation.

Again, wisdom and legality are not the same thing, but as far as legality is concerned this is I think absolutely correct on the law as it relates to mandatory vaccination rules. 

I would venture to guess that the federal government could justify a similar rule under the commerce power. I would also venture to guess that the extension of the vaccination rule to a state (or federal) masking rule for the duration of an epidemic would not be very difficult.

Posted in Civil Liberties, COVID-19, Law: Constitutional Law | 5 Comments

Well That Didn’t Take Long

Posted on July 1, 2021 by Michael Froomkin

Remember that nutty DeSantis-inspired law that would make it illegal for some, but not all, large social media companies to ban politicians from their platforms?

On Wednesday US District Judge Robert Hinkle issued a 31-page preliminary injunction blocking it.

Or, as Ars Technica summarized it, “Judge tears Florida’s social media law to shreds for violating First Amendment: Judge blocks Florida law, calls it example of “burning the house to roast a pig.”

It wasn’t a gentle ruling; the Ars Technia piece linked above hits the (many) high points.

Gavel image licensed under Creative Commons  CC BY-SA 3.0 by Alpha Stock Images.

Posted in Florida, Law: Constitutional Law, Law: Free Speech | Comments Off on Well That Didn’t Take Long

“Constitutional Law: It’s a Lot Like Cornbread and Slaw”

Posted on February 26, 2021 by Michael Froomkin

The Constitutional Law Song–With Banjo, Fiddle & Ukulele– is something:

(Spotted via Ben Davis on a mailing list)

Posted in Kultcha, Law: Constitutional Law | Comments Off on “Constitutional Law: It’s a Lot Like Cornbread and Slaw”

Can Acting Secretaries Vote on Presidential Incapacity Under the 25th Amendment?

Posted on January 8, 2021 by Michael Froomkin

I think the odds of Vice President Pence invoking the 25th amendment are somewhat lower than the odds of the  Knicks winning the NBA championship this year, 1 but the the highly theoretical prospect raises a tidy legal question.

Recall that Section 4 of the 25th Amendment states that,

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty–eight hours for that purpose if not in session. If the Congress within twenty–one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty–one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

No one imagined we’d have so many acting Cabinet Secretaries as we do now.  I think we are up to five out of fifteen at present (counting only true heads of major executive departments and not other ‘Cabinet-level’ appointees), with more perhaps on the way

So the legal mind starts to wonder: Do Acting Secretaries get to vote under the 25th Amendment?  And if not, does the size of the majority required (eight if all count) go down?

The short answer is that it’s most likely that Acting Secretaries get to vote:

The Congressional Research Service did a report, Thomas H. Neale, CRS, Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress (Updated November 5, 2018) which tells you provably much more than you want to know about the history and mechanics of the 25th.  On page 11 it says,

Respecting details of the Cabinet’s participation, the House Judiciary Committee’s 1965 report on the proposed amendment stated that in the event of a vacancy in any of the Cabinet offices, “the acting head would be authorized to participate in a presidential disability determination,” while [John D,] Feerick [a leading scholar of presidential disability and succession] notes that the amendment’s supporters asserted that recess appointees to Cabinet offices would also be eligible to participate in a Section 4 deliberation.

This generally accords with a 1985 memo from the Office of Legal Counsel (the agency in the Justice Department charged with opining on such issues):

We believe that the “principal officers of the executive departments” for the purposes of the Twenty-Fifth Amendment are the heads of the departments listed in 5 U.S.C. § 101, presently the Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secre­tary of Health and Human Services, Secretary of Housing and Urban Develop­ment, Secretary of Transportation, Secretary of Energy, and Secretary of Education. This view is supported by the legislative history of the Amendment. See H.R. Rep. No. 203, 89th Cong., 1st Sess. 3 (1965); 111 Cong. Rec. 7938 (1965) (Rep. Waggoner); id. at 7941 (Rep. Poff); id. at 7944 45 (Rep. Webster); id. at 7952, 7954 (Rep. Gilbert); id. at 3282-83 (Sen. Hart and Sen. Bayh).

At present, this list is identical to the list of statutory Presidential successors under 3 U.S.C. § 19, except that it does not include the Speaker of the House of Representatives or the President pro tempore of the Senate. Furthermore, although the acting heads of departments and recess appointees are not Presi­dential successors, see 3 U.S.C. § 19(e), the legislative history of the Twenty- Fifth .Amendment suggests that, in the event of a vacancy in office or the absence or disability of a department head, the acting department head, at least at the level of undersecretary, principal deputy, or recess appointee might be entitled to participate in determinations of Presidential disability. See H.R. Rep. No. 203 at 3; 111 Cong. Rec. 15380 (1965) (Sen. Kennedy — acting heads); id. at 3284 (Sen. Hart and Sen. Bayh — interim appointees). But see id. at 3284 (Sen. Bayh — acting heads not entitled to participate). As a practical matter, and in order to avoid any doubt regarding the sufficiency of any given declaration, it would be desirable to obtain the assent of a sufficient number of officials to satisfy any definition of the term “principal officers of the executive departments.”

Of course, if the vote were to happen, and the votes of the Acting Secretaries were needed to make a majority, that would be an issue that Trump could take to court. By the time it could work its way to the Supreme Court, the issue would likely be moot.

  1. Note to foreign readers: there is literally no chance of this.[↩]
Posted in Law: Constitutional Law | 3 Comments