Posts categorized as "The Constitution"

Schuette v. BAMN: One Case, Eight Judges, Five Opinions

A recent decision by the United States Supreme Court, Schuette v. BAMN is interesting for all sorts of reasons.  One point of interest if you are studying US law is to note the concurring opinions.  A concurring opinion is where a judge agrees with a result but may have different or additional reasons for reaching that result.

In the United States  appellate level federal courts  hears cases as a panel.  In the Circuit Courts of Appeal, the intermediate level federal courts, a panel of three judges usually decides the case.  Sometimes more judges hear the case if it is very important.   The Supreme Court, which is the highest federal court, has nine justices.  In the Schuette case, only eight justices heard the case because one judge was recused.

The issue in the case was whether an amendment to the Constitution of the State of Michigan, as voted on by the people of Michigan, violated the Constitution of the United States.   The Circuit Court held that the amendment was unconstitutional because it violated the Equal Protection Clause.  

Of the eight justices that ruled in the Schuette case, six justices disagreed with the Circuit Court of Appeal and voted to reverse.  But if you look at the case you can see that the case resulted in five different opinions.

First, three justices wrote the opinion of the plurality, determining that the Circuit Court misunderstood case law and incorrectly invalidated the amendment to the state constitution.  

Second, the Chief Justice wrote a short concurring opinion, in which he mainly responded to criticisms by justices who disagreed with the plurality's decision.

Third, two justices joined in a concurring opinion in which they agreed with the result reached by the plurality, but vigorously disagreed with the line of cases on which the plurality relied.

Fourth, one judge wrote a concurring opinion in which he agreed that the amendment was constitutional, but emphasized the democratic voting process by which the amendment was added to the state constitution.

Finally, two justices joined in a dissenting opinion, which was longer in length than the plurality and concurring opinions combined, vigorously disputing the plurality and concurring opinions.  


Why did a federal court dismiss Al-Aulaqi v. Panetta?

Recently a federal court dismissed a lawsuit brought by the relatives of Americans killed in drone strikes in Yemen.   Here is a short video discussing the decision.


What are the differences between a Bivens Action and a 42 USC 1983 lawsuit?

42 USC 1983 is a statute, a law enacted by Congress.  The law allows a person whose Constitutional rights were violated by government officials to sue in federal court.  The defendant in the case must be someone acting on behalf of a state or local government.  A plaintiff can also sue a local government, such as a city, for violating his constitutional rights.  

Congress passed 42 USC 1983 because of a concern after the United States Civil War that southern states deprived black people of their Constitutional rights.  42 USC 1983 empowers victims to sue state officials, and those acting on their behalf.

A Bivens Action is different because the defendant in a Bivens Action is alleged to be acting on behalf of the federal government, not a state government.  The Supreme Court, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), held that plaintiffs whose Constitutional rights were violated by persons acting on behalf of the federal government have a right to sue in federal court.  The plaintiff in that case was named Warren Bivens so now we call these types of cases "Bivens Actions".  


I made a short video on Bivens Actions.


What is strict scrutiny?

I went with a video response on this.  There was also a discussion on the message board related to strict scrutiny.

Federal judges are appointed for life. What if a federal judge in the United States loses some of his mental capacities?

This is an interesting question about a sensitive topic.  Some people lose mental acuity as they age.  Also, people get sick and that can affect how well they perform their jobs.  Many federal judges have a great deal of experience, which is good, but the aging process and other factors can take their toll.  So what happens?

1. It is well-known that there are informal efforts by federal judges to encourage a fellow judge to retire if the judge is losing his or her mental capacities.  I don't know about this in detail - - it happens behind closed doors.  But I think we all have had personal experiences where, for example, we need to have a conversation with someone who is losing his ability to drive safely or to perform his job as well as he used to - - I assume the conversations among federal judges are similar.

2. Federal law provides judges with an option to resign because of a physical or mental disability.    

The law also details a procedure for the President to appoint a new federal judge if a judge who is eligible to resign because of a physical or mental incapacity fails to do so.  The procedure requires that a majority of judges in a Circuit's judicial council first issue a  "certificate of disability."  I'm not aware of any recent examples.

3. Another federal law allows older judges to enter into "Senior Status" where they take on a reduced work load.  Many judges choose this option.  




How is it possible that the State of Colorado legalized marijuana but federal law criminalizes marijuana?

I received a number of questions from people who heard that Colorado legalized some use of marijuana.

Yes, it is a somewhat unusual situation.  Federal law criminalizes buying, selling, and possessing marijuana but Colorado just legalized buying, selling and possessing limited quantities of marijuana.  And you probably learned that when there is a conflict, federal law trumps state law.  So how can Colorado do this?  

For two reasons the situation in Colorado might not be a problem:

First, perhaps there isn't really a conflict between federal and state law.  Keep in mind that Colorado doesn't require people to use marijuana.  If Colorado had a law that forced adults to buy marijuana that would conflict with federal law prohibiting people from buying marijuana.  The difference between federal and state law in this case is that adults who buy, possess, or sell up to one ounce of marijuana in Colorado don't have to worry about state law.

Second, the Department of Justice (the DOJ is in charge of prosecuting federal crimes) issued a memorandum which suggests that federal law enforcement does not plan to interfere with adults peacefully buying or selling marijuana.  The memorandum states that the federal government will instead prioritize only certain federal crimes involving marijuana such as where minors use marijuana and where firearms and violence are used in cultivating marijuana.   If the memorandum is accurate, adults who decide to buy or sell limited quantities of marijuana in Colorado probably don't have to worry about federal law.  There are still some complications though.  Banks which are subject to federal regulation have stated that they are nervous dealing with money connected to marijuana sales.  Here is one article about that issue.  

If more states legalize marijuana - - and that seems to be the trend - - I think that the federal government will have to reconsider federal laws against marijuana.  

Is the Attorney General of the United States part of the executive or the judicial branch?

The Attorney General is part of the executive branch.  The Attorney General is in charge of the Department of Justice (commonly known as the DOJ).  

Among other things, the DOJ enforces federal criminal law in the United States.  Federal prosecutors who work for the DOJ are known as United States Attorneys.


Don't states violate the Due Process Clause if they ban gay marriages?

Good point!  A number of federal judges reached the same conclusion as you and ruled that states violate the United States Constitution when they prohibit same-sex marriage.

For example, in February 2014 a Virginia federal court held that Virginia's ban on same-sex marriage violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment (Bostic v. Rainey, E.D. Va. Feb. 13, 2014).    A Michigan federal court apparently issued a similar opinion last week but I did not read that case yet.

  A number of states legalized same-sex marriage on grounds that prohibiting gay marriage violated their state constitutions' versions of the Equal Protection Clause.  If you recall, the Equal Protection Clause prohibits the government from treating similarly situated people differently without a valid reason.


Can the executive branch ever create statutes?

Not exactly but...


1. Congress can delegate rule making authority to government agencies, including agencies that are within the executive branch.  For example, Congress delegates to the Department of Transportation the authority to make certain  types of rules regarding airport and traffic safety.


2. The President of the United States can issue executive orders.  Executive orders tell federal agencies and federal officers to do certain things. Executive orders are often controversial because, as your question suggests, this type of power is normally reserved for the legislative branch.  Courts can review the constitutionality of an executive order. 

I understand that there are 27 Amendments to the US Constitution. How is the Constitution amended?

Article V of the Constitution describes how the Constitution can be amended.  There are two ways.


Method I:    First, 2/3 of the House of Representatives and the Senate must approve the amendment.  Then, 3/4 of the states' legislatures must approve the amendment.  


Method II: 2/3 of the states call for a special convention to propose the amendment.  Then, 3/4 of the states' legislatures must approve the amendment.  This method has never been used.