Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 504004 times)


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WSJ: SCOTUS's Textualism Test
« Reply #1500 on: November 23, 2019, 11:20:58 AM »
The Supreme Court’s Textualism Test
Kagan tries to lure Gorsuch and Roberts off the Scalia method.
By The Editorial Board
Nov. 21, 2019 7:21 pm ET

The Supreme Court in Washington. PHOTO: ERIN SCHAFF/REUTERS
It won’t grab headlines like impeachment, but a major political drama this year will unfold at the Supreme Court. To wit, how will the Court, and especially new Justices Neil Gorsuch and Brett Kavanaugh, define the meaning of textualism and originalism?

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These are the watchwords of the jurisprudence made prominent by the late Justice Antonin Scalia, and all of the Justices claim to honor them in one way or another. But how the Justices define these tools of judicial interpretation will determine how the Court decides major cases going forward. An important test will be the discrimination cases under Title VII that the Court heard in oral arguments last month.

On traditional grounds of textualism, the two cases—Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC—should be straightforward. The plaintiffs say they were fired because they were gay or transgender, and that such discrimination is illegal under Title VII of the Civil Rights Act of 1964.

But Title VII bans discrimination because of “race, color, religion, sex, or national origin.” No one in Congress in 1964 claimed that outlawing discrimination based on sex applied to sexual orientation, much less to the transgendered. The plain meaning of the text of Title VII is that “sex” referred to a man or a woman.

Under this plain reading, the Justices could and should say that discrimination against gays or the transgendered is invidious but that Title VII doesn’t ban it and it isn’t the job of judges to rewrite the text. If Congress wants to ban such bias in the workplace, it should pass a law, as some 23 states have done.

Enter Justice Elena Kagan, bearing a different definition of the text of the statute, updated for current mores. During oral arguments, she sought to redefine “sex” in Title VII to mean more than the binary choice of a man or woman. She offered a hypothetical case in which a company fires a woman employee for dating another woman but wouldn’t have fired a man for dating a woman. Voila, discrimination based on sex.

Justice Kagan is a shrewd Court politician, and her goal in politically significant cases is to attract one of the conservative Justices to form a 5-4 liberal majority. She’s succeeded more than once with Chief Justice John Roberts, who is above all an institutionalist who wants to preserve the Court’s public standing. Justice Kagan has used appeals to precedent and the “legitimacy” of the Court to pull the Chief to liberal policy ends.

Her main target on the Title VII cases is Justice Gorsuch, and, sure enough, in oral arguments he suggested he might agree with Justice Kagan’s nouveau interpretation of “sex.” At one point he said “the textual evidence” is “really close, really close” and we’re not talking about “extra-textual stuff.”

At another point he asked Solicitor General Noel Francisco to respond to Justice Kagan’s argument “and the fact that at least one contributing cause [of dismissal from the job] appears to be sex?”

Mr. Francisco gave an excellent answer: “First, I don’t think that one contributing cause is sex. I think that as long as you’re treating gay men and women exactly the same regardless of their sex, the contributing cause is sexual orientation, not sex. And, two, I think it reflects the fact that sex and sexual orientation are different traits.”

In other words, the employment bias isn’t based on sex since it could apply to gay men or gay women. The bias is against sexual orientation. Congress has expressly protected against such bias in other statutes, taking care to balance other interests such as religious views. Simply because Congress hasn’t done so for Title VII doesn’t mean the Court should usurp the role of the legislature and do so.

American social mores have traveled far since 1964, and today there is broad acceptance of differences based on sexual orientation and gender self-identification. The Fortune 500 and most employers have policies that ban bias on either grounds. A Supreme Court decision that said the job of reforming Title VII is up to Congress could well supply the political impetus to do so, while also allowing for the compromises necessary to protect other interests such as concerns over same-sex bathrooms and women’s sports teams.

The larger threat is to the new Court and the use, or misuse, of textualism. If the plain binary meaning of “sex” in 1964 as a man or woman can be redefined to fit today’s cultural politics, then textualism as a legal doctrine becomes meaningless. Justice Scalia might say it tortures the language more than it can bear. Textualism would become merely one more tool for judges to impose their politics on the law—based on whatever creative uses Justice Kagan can conjure to apply it.

Justice Clarence Thomas is now the Court’s foremost originalist and he makes his spirited arguments within the four corners of his opinions. Justice Samuel Alito appreciates textualism, though he also is a more traditional follower of judicial restraint.

Justice Gorsuch has taken on the role of public evangelist for the Scalia method, as he’s shown with his recent book “A Republic, If You Can Keep It.” He wants younger Americans in particular to understand and appreciate the benefits of textualism and originalism—a laudable mission unless their proper understanding is washed away when politically convenient.

Justice Kavanaugh, Justice Gorsuch’s generational peer, will also have a say in defining what textualism means in the years ahead. If Justice Gorsuch or the Chief Justice follow Justice Kagan in defining textualism down, we hope Justice Kavanaugh and the others will explain their errors.


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Electoral College
« Reply #1502 on: January 04, 2020, 03:18:06 PM »
« Last Edit: January 04, 2020, 03:20:48 PM by Crafty_Dog »


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Constitutional Law: New state electoral vote laws unconstitutional?
« Reply #1503 on: January 17, 2020, 05:17:08 PM »
Just my opinion but these new state laws awarding their states delegates to the national popular vote winner are unconstitutional.  They disenfranchise that state's voters.  We will see.


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Rivkin & Casey: Congress declares War, but only the President can make it
« Reply #1504 on: January 20, 2020, 12:00:55 PM »
Serious article by serious resumes

Congress Declares War, but Only the President Can Make It
The effort to tie Trump’s hands in Iran would be unconstitutional if it weren’t meaningless.
By David B. Rivkin Jr. and Lee A. Casey
Jan. 15, 2020 7:11 pm ET

Iranian soldiers outside the U.S. Embassy in Tehran, Nov. 13, 1979. PHOTO: ASSOCIATED PRESS

House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.

Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.

The resolution purports to restrict the president’s power to an even greater extent than the 1973 War Powers Resolution. The latter was enacted over President Richard Nixon’s veto, and every president since has regarded it as unconstitutional. It demands that the White House notify Congress anytime U.S. forces are introduced into hostilities abroad, then either obtain congressional authorization or withdraw troops within 90 days. The new resolution applies to all forms of military power, including drones and missiles, and claims to prohibit them effective immediately.

It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.

The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.

True, the Framers didn’t grant the president power to initiate hostilities at his pleasure. They gave Congress, not the president, the authority to raise and support armies, to create a navy, and to make rules and regulations for their governance. It’s also up to the legislative branch to define the legal framework for armed conflict: offenses against international and military law, the procedures for their prosecution, the treatment of captured enemy property and prisoners and so forth.

Congress also has the power “to provide for organizing, arming, and disciplining, the militia.” Military officers are subject to Senate confirmation. Congress can use its exclusive appropriation powers to limit or eliminate funding for a particular conflict—if lawmakers are prepared to take the resulting political risks. Inaction or nonbinding resolutions have no constitutional import.

Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. Like any American, Speaker Nancy Pelosi is free to speak her mind. But her claim that the attack on Soleimani was “provocative and disproportionate” is preposterous.

Iran has been engaged in on-and-off armed conflict with the U.S. since “students” seized the embassy in Tehran in 1979. Soleimani was a uniformed member of the Iranian armed forces, and a critical player in Iran’s worldwide terror campaign. All that made him a legitimate target. The notion that Soleimani was too senior to be killed finds no support in the laws of armed conflict. Even the most senior military leaders can be targeted, as the U.S. did in 1943 when it shot down Adm. Isoroku Yamamoto’s plane in New Guinea.

Nor is it legally relevant, as some congressional Democrats have claimed, that killing such a high-ranking officer could heighten the danger of a wider war. Any military action has the potential to escalate hostilities, as do other exercises of presidential authority. President Franklin D. Roosevelt’s imposition of an oil embargo against Japan in August 1941 arguably prompted the attack on Pearl Harbor four months later.

Under Mrs. Pelosi’s logic, virtually every major foreign-policy decision would require congressional authorization. Imagine if President John F. Kennedy had to ask lawmakers for approval during the Cuban Missile Crisis of 1962 before subjecting Cuba to a “naval quarantine,” an act of war against Havana. The threat of Soviet missiles in Cuba was real, but it wasn’t “imminent” in the sense that Mr. Trump’s critics use that word today.

Kennedy acted to prevent a long-term, highly dangerous change in the nuclear balance of power that would have put Moscow in a position to launch a nuclear attack on the U.S. with virtually no warning. But there was no reason to think an attack was planned for the immediate future.

Kennedy decided that action, while risky, would enhance deterrence, as President Trump did when he ordered the killing of Soleimani. The president deserves credit for a decision that would, at any time until recently, have been considered a triumph by Democrats and Republicans alike.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush