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Eight Things to Know About Yesterday's Sixth Circuit Decision

Thu, 30 Jun 2011 00:00:00 -0700

The Volokh Conspiracy - By Randy Barnett - Jun. 30 (News Analysis) - Sutton’s opinion was no surprise to anyone who was in the courtroom in Cincinnati. Nor would a contrary opinion have been surprising. Sutton was scrupulously critical of both sides that day. Indeed, his opinion shares the “on the one hand” and “on the other hand” character of his questioning. ... I thought it would be useful to offer a few observations about the Sixth Circuit decision generally and Judge Sutton’s opinion in particular. Although each of these points merit further thought and more extensive treatment, it is also useful to present them more succinctly as a list.

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The Executive Power Grab in the Decision Not to Defend DOMA

Wed, 23 Feb 2011 00:00:00 -0800

The Volokh Conspiracy - By Orin Kerr - Feb. 23 (Opinion) - I can understand the intense political pressure on the Obama Administration not to defend DOMA. Presumably Obama and pretty much every significant lawyer in the Obama Administration opposes DOMA, whether or not they can take that position on the record. For what it’s worth, I oppose it, too. At the same time, I worry that the decision may have serious long-term effects on the role of the executive branch and executive power. In this post, I want to explain my concerns, and then I’ll open it up for reader comments on whether my concerns are justified.

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Words you can’t say at the Pentagon

Sun, 20 Feb 2011 00:00:00 -0800

The Volokh Conspiracy - By Stewart Baker - Feb. 20 (Opinion) - Anyone who paid attention to news coverage after the rampage knows that the Army had plenty of warning about Hasan’s Islamist views. Classmates say that he questioned whether he could fight against other Muslims and made presentations justifying the murder of non-Muslims, suggesting that Muslim-Americans in the armed forces might kill other servicemembers, defending Osama bin Laden, and justifying suicide bombers. The servicemembers in the audience were so appalled that the instructor finally stopped one of Hasan’s presentations. Off the record, it seems, everyone thought Hasan was dangerous, a nutjob, or an Islamist, and perhaps all three. On the record, though, no one would criticize him. You don’t rise in the armed forces if you can’t read your superiors. And the rising officers who met Hasan knew what their superiors wanted without having to be told. Islam was a religion of peace, and Muslims in the Army were a welcome sign of diversity. Treating Hasan as a dangerous Islamist would put those messages at risk.

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The Broadening of the Libertarian Movement

Sun, 20 Feb 2011 00:00:00 -0800

The Volokh Conspiracy - By Ilya Somin - Feb. 20 (News Analysis) - With the proliferation of libertarian blogs and other websites on the internet, any high school or college student who has a strong interest in politics is likely to become aware of libertarianism as a potential alternative to liberalism and conservatism. The fact that these people learn about libertarianism while they are still young is critical; most people become less receptive to new ideas as they get older, especially if they go against their preexisting views.

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The Weak Link in Judge Vinson’s Opinion Striking Down the Mandate

Tue, 01 Feb 2011 00:00:00 -0800

The Volokh Conspiracy - By Orin Kerr - Feb. 01 (Opinion) - To understand Vinson’s argument, you need to realize that conservatives and libertarians have been complaining for many decades that Commerce Clause doctrine has left Congress essentially unlimited power. Between Wickard v. Filburn and Gonzales v. Raich, conservatives and libertarians have complained, the federal government can justify pretty much anything.

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Today’s Florida District Court Ruling Striking Down the Obamacare Individual Mandate

Mon, 31 Jan 2011 00:00:00 -0800

The Volokh Conspiracy - By Ilya Somin - Jan. 31 (Opinion) - Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each. He had already rejected the government’s claim that the mandate is constitutional because it is a tax in a previous ruling. So far, all three federal courts that have considered the tax argument have rejected it, instead ruling (in my view correctly) that the mandate is a penalty.

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So Much For the Commerce Clause Challenge to Individual Mandate Being "Frivolous"

Sun, 18 Jul 2010 00:00:00 -0700

The Volokh Conspiracy - By Randy Barnett - Jul. 18 (News Analysis) - Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Nancy Pelosi as “frivolous”? Well, as Jonathan notes below, the administration is now apparently telling the New York Times that the individual insurance “requirement” and “penalty” is really an exercise of the Tax Power of Congress. Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations. Let that sink in for a moment. If the Commerce Clause claim of power were a slam dunk, as previously alleged, would there be any need now to change or supplement that theory?

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Michael Bellesiles’s Newest Tale

Wed, 07 Jul 2010 00:00:00 -0700

The Volokh Conspiracy - By Jim Lindgren - Jul. 07 (News Analysis) - If I had to guess, I would suspect that the story Bellesiles told in the Chronicle is mostly true; after all, it would be too easy for the Chronicle or Bellesiles’s department chair to check the facts with “Ernesto” and with Joe, Bellesiles’s teaching assistant. Yet some things reported by Bellesiles in the Chronicle appear to be false: the term he says he taught Military History is inconsistent with CCSU’s website, and the facts of “Javier’s” Army service and death in Iraq do not match any deaths reported by the Department of Defense for soldiers from any US state or territory. And note that Bellesiles opens his Chronicle article with a warning that many military stories can’t be trusted, even eyewitness ones. Is this his sly way of warning us that he doesn’t fully trust “Ernesto’s” account himself or that Bellesiles is telling us a tall tale? For his sake, I hope not.

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Elena Kagan: “I LOVE the Federalist Society! I LOVE the Federalist Society!”

Mon, 10 May 2010 00:00:00 -0700

The Volokh Conspiracy - By Jim Lindgren - May. 10 (Opinion) - I remember at the time being struck by the boldness and seemingly genuine praise of her exclamation, “I LOVE the Federalist Society!” Yet I was wondering if it was just pandering until she uttered the line about the Federalists not being her people — a qualification necessary for her praise to be credible to me.

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No-Fly Fail Fault?

Wed, 05 May 2010 00:00:00 -0700

The Volokh Conspiracy - By Stewart Baker - May. 05 (Opinion) - The government put Shahzad on its terror watchlists, including the no-fly list, and DHS recognized his name when Emirates airline gave its passenger manifest to DHS. This of course was just before takeoff, so the plane had already pulled back the jetway when Customs and Border Protection stopped the flight: “By the time [DHS/CBP] officials spotted Shahzad’s name on the passenger list and recognized him as the bombing suspect they were looking for,” AP says, ” he was in his seat and the plane was preparing to leave the gate.”

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More on Ted Olson's federal lawsuit for gay marriage:

Fri, 29 May 2009 00:00:00 -0700

The Volokh Conspiracy - By Dale Carpenter - May. 29 (Comment) - To be honest, when I first heard that former Bush Solicitor General Ted Olson, a rock-solid member of the conservative legal movement, had filed a federal lawsuit to invalidate Prop 8 I thought it was an Internet hoax. So I held off posting about it for awhile last night. It was a surprise because I had no idea Olson supported equality for gays and lesbians, much less full marriage rights. It was doubly a surprise because, even if he supported gay marriage, Olson struck me as the kind of conservative who would reject what many conservatives would regard as judicial activism.

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Sonia Sotomayor versus the Second Amendment

Tue, 26 May 2009 00:00:00 -0700

The Volokh Conspiracy - By David Kopel - May. 26 (News Analysis) - Judge Sotomayor's record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.

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Losing California

Wed, 05 Nov 2008 00:00:00 -0800

The Volokh Conspiracy - By Dale Carpenter - Nov. 05 (Opinion) - Mostly, my heart breaks for the gay couples and their children who had a five-month window in which their families could celebrate the ultimate expression of commitment and love our culture knows. There was nothing academic about any of this for them....They want their families and communities to understand how much their relationships mean and how fiercely they will fight to protect the children they love....Today, they have no idea whether they have just been divorced by their fellow citizens.

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Obama on Redistribution of Wealth

Mon, 27 Oct 2008 00:00:00 -0700

The Volokh Conspiracy - By David Bernstein - Oct. 27 (Opinion) - On the issue of whether Obama endorses redistribution of wealth through the courts, it certainly sounds to me like he thinks the Rodriguez case (holding 5-4 that unequal funding of public schools does not violate the Equal Protection Clause) was wrongly decided, and that state courts that have mandated equal funding for public schools are correct. But he also seems to think that it was a huge error for activists to try to achieve more general redistribution through the Due Process Clause of the Fourteenth Amendment. (In the waning days of the Warren Court, there was a movement to try to constitutionalize a right to a minimum income.) Co-interviewee Dennis Hutchison even suggests that in pre-interview conversation, Obama agreed with him that Goldberg v. Kelley, establishing procedural protections for welfare recipients, was wrongly decided, or at least promised much more than it could possibly achieve

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From Crony Capitalism to Crony Community Organizing

Sat, 27 Sep 2008 00:00:00 -0700

The Volokh Conspiracy - By Jim Lindgren - Sep. 27 (News Report) - Much of the blogosphere is up in arms because of the provision in Senator Dodd's financial bailout bill that might funnel profits from the bailout plan to ACORN Housing (related to the disreputable activist group ACORN), and other more reputable service organizations. I have read Dodd's proposed statute and in some respects, it is far worse than has been reported. Senator Dodd has placed a loophole in the bill that is explicitly designed to siphon off tens or hundreds of billions of dollars to the Housing Trust Fund and the Capital Magnet Fund even if there are no net profits in the $700 billion venture.

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Charlie Gibson's Big Mistake

Fri, 12 Sep 2008 00:00:00 -0700

The Volokh Conspiracy - By Jim Lindgren - Sep. 12 (News Analysis) - Outrageously, in his interview Gibson claimed that Sarah Palin had called the Iraq War "a task . . . from God." No she didn't. She prayed that it was a task from God. As I said a few days ago: I find it hard to believe that Anderson Cooper [and now, Charlie Gibson] does not understand the difference between praying for something you hope is true and stating that it is true. Is praying for peace throughout the world the same as saying that there is peace throughout the world? Palin actually said: "Pray for our military. He's [Palin's son Trask] going to be deployed in September to Iraq. Pray for our military men and women who are striving to do also what is right for this country - that our leaders, our national leaders are sending them out on a task that is from God. That's what we have to make sure we are praying for, that there is a plan and that that plan is God's plan." . . .

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Obama's speech includes more negative attacks than Palin's

Fri, 05 Sep 2008 00:00:00 -0700

The Volokh Conspiracy - By Jim Lindgren - Sep. 05 (Opinion) - Like Palin, Obama generally prefers to attack without using sarcasm. Also like Palin, Obama sometimes uses hyperbole to characterize his opponents' views.

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Those radical gay-loving Republicans

Tue, 02 Sep 2008 00:00:00 -0700

The Volokh Conspiracy - By Dale Carpenter - Sep. 02 (Opinion) - support for civil unions, an idea that just ten years ago would have been thought radical by most people -- and certainly by Republicans -- is quickly becoming the default position across the political spectrum, not just on the left.

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Ronald Reagan on Immigration

Fri, 25 May 2007 15:17:02 -0700

The Volokh Conspiracy - By Ilya Somin - May. 25 (Opinion) - Conservative Republican have been outdoing each other in claiming the mantle of Ronald Reagan. Ironically, however, many conservatives are simultaneously outdoing each other in advocating immigration restriction - a stance Reagan would probably have abhorred. As Reagan biographer Lou Cannon points out in this book (pg. 119), Reagan proposed a treaty allowing for full freedom of movement for all workers throughout North America in his November 1979 speech announcing his candidacy for the presidency. As early as 1952 - at a time when US immigration policy was still governed by the highly restrictive Immigration Act of 1924 - Reagan gave a speech embracing nearly unlimited immigration:

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France will not abandon the women who are condemned to the burqa

Wed, 09 May 2007 12:29:09 -0700

The Volokh Conspiracy - By David Kopel - May. 09 (Opinion) - In English: "I want to launch a call to all those in the world who believe in the values of tolerance, of liberty, of democacy and of humanism, to all those who are persecuted by the tyrannies and by the dictators, to all the children and to all the martyrized women in the world to say to them that the pride, the duty of France will at their sides, that they can count on her."

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Why Haven't We Written About the US Attorneys' Story?:

Wed, 14 Mar 2007 08:37:38 -0700

The Volokh Conspiracy - By Orin Kerr - Mar. 14 (Opinion) - On a more serious note, I haven't written about the U.S. Attorney's story because I'm having a hard time figuring out just how big a deal it is. Parts of it are obviously very troubling: I was very disturbed to learn of the Domenici calls, for example. More broadly, I have longrunning objections to the extent to which DOJ is under White House control, objections that this story helps bring to the fore (although my objections are based on my views of sound policy, not on law). At the same time, several parts of the story seem overblown. U.S. Attorneys are political appointees who serve at the pleasure of the President, and the press seems to overlook that in a lot of its reporting. Also, I know one or two of the Administration figures named in some of the stories, and based on my knowledge of them and their character (although no secret details of the story -- I have not spoken with anyone about it) I have a feeling that they're getting a bad rap.

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Presidential candidates on the Second Amendment

Tue, 23 Jan 2007 09:03:12 -0800

The Volokh Conspiracy - By David Kopel - Jan. 23 (Opinion) - If you take Second Amendment issues into account when deciding whom to support, or if you simply are interested how the candidates will likely fare with an important bloc of voters, here's a preliminary assessment of some of the people who have been listed as likely or definite candidates. As much as possible, the ratings are based on actions while in government, rather than on current rhetoric. Of course the list can also be read in reverse order, to assess the probable allegience of voters who are very strong gun control advocates. These rankings are subject to revision, as additional information is acquired.

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Half the Story

Sat, 06 Jan 2007 23:06:53 -0800

The Volokh Conspiracy - By Eugene Volokh - Jan. 06 (Opinion) - Don Surber notes, quoting a correspondent: Today's approval numbers via Rasmussen are: 45% approval for Bush 43% approval for Pelosi Well, that's half the numbers. Filling in the other half (which, to Surber's credit, is linked from his post), we see that Bush is at 45% job approval and 54% disapproval, while Pelosi is at 43% favorable and 39% unfavorable. So Pelosi seems ahead of Bush (+4 vs. -9) rather than behind. And the talk in the Surber post about the media's "false ... impressions," media "conventional wisdom [being] flushed down the toilet," and media "lies," seems like something of an overstatement.

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