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Supreme Court Weakens Protection Against Illegal Searches

All hail the mighty police. Thanks to the Supreme Court today, your protection against a warrantless search following an illegal stop by police just diminished.

In a 5-3 ruling, the justices relaxed the so-called exclusionary rule and upheld the use of drug evidence found on a Utah man who was stopped illegally by a police officer in Salt Lake City.

The court, in an opinion by Justice Clarence Thomas, said that because the man had an outstanding arrest warrant for a traffic violation, the illegal stop could be ignored.

The opinion is here. The three female justices dissented. Justice Sotomoyor's words are powerful: [More...]

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Hobby Lobby: does RFRA violate the Establishment Clause?

In the 1997 case Boerne v. Flores, where the Supreme Court decided that the Religious Restoration and Freedom Act exceeded the Congres' Section 5 enforcement power as applied to the states, Justice John Paul Stevens issued a little remarked concurrence in the result. Justice Stevens wrote:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).

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Federal Judge in Florida Rules Welfare Drug Testing Unconstitutional

Good news in Florida today. A federal judge in Orlando has ruled Florids's law requiring welfare recipients to be tested for drugs is unconstitutional.

“The court finds there is no set of circumstances under which the warrantless, suspicionless drug testing at issue in this case could be constitutionally applied,” she wrote. The ruling made permanent an earlier, temporary ban by the judge.

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Stop and Frisk Ruled Unconstitutional


In a repudiation of a major element in the Bloomberg administration’s crime-fighting legacy, a federal judge has found that the stop-and-frisk tactics of the New York Police Department violated the constitutional rights of minorities in New York, and called for a federal monitor to oversee broad reforms.

Here is the opinion.

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WaPo: Individual Section 215 Searches Not Subject to FISA Court Review

This is an interesting bit of pushback from the NSA, as anonymously sourced to Dana Priest of the WaPo:

The analysts’ 215 requests go to one of the 22 people at the NSA who are permitted to approve them — the chief or the deputy chief of the Homeland Security Analysis Center or one of 20 authorized Homeland Security mission coordinators within the Signals Intelligence directorate’s analysis and production directorate.

Once a request is approved, it is given to one of the Signal Intelligence directorate’s 33 counterterrorism analysts who are authorized to access the U.S. phone metadata collection.

The sourcing is intended to push back from the idea that any old analyst can just make this decision. But in the attempt, it undermines the idea that the FISA court is an actual check on NSA abuse. The FISA court is not involved at all in the individual search process, according to Priest's NSA sources.

That undermines the idea of the FISA court as an effective check on the NSA.

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It Was 40 Years Ago Today: Roe v. Wade

It is all the fashion these days to criticize the opinion in Roe v. Wade (and the companion case, Doe v. Bolton), which 40 years ago today guaranteed a women's constitutional right to privacy with regard to pregnancy.

While neanderthals like Andrew Sullivan label Roe the "the worst decision ever made by the Supreme Court" (Dred Scott? Plessy? Dagenhart? Korematsu? Bush v. Gore?), even intelligent individuals like Jack Balkin and the Yale Law School crowd have argued that Roe was poorly reasoned, if correctly decided.

I come here today to defend the opinion in Roe, which, while not the most articulate of opinions, still holds up as an exercise of reasoned judicial decision making. Read why I think so on the flip.

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The Founders vs. The Republican Party

Josh Marshall writes:

If you read about how the federal constitution came about, one thing is crystal clear: it was devised by people who wanted to create a strong federal government and saw the states as obstacles to doing so. The people who believed in states rights and an anemic federal government — the ancestors of today’s Tea Party — were the Anti-Federalists. And they lost.

Regular readers know this: see The Republican Party, The Anti-Federalists And The Tea Parties, Taking The Tenth Amendment Seriously, The Tea Party v. Alexander Hamilton, What The Tea Party Believes, What The Founders Believed and David Brooks' Dishonest Invocation of Alexander Hamilton.

Marshall reports on the somewhat more honest GOP attempts to reinstate the Articles of Confederation. Marshall writes:

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Living Originalism: A Conference

I'm participating at a Yale Law School conference on Constitutional Interpretation on Jack Balkin's book "Living Originalism. I wrote about it last week. Some previous posts on the subject: Constitutional Interpretation, Originalism and a Living Constitution and Dred Scott, Originalism and a Living Constitution..

You can watch a live stream of the conference. It should be fascinating.

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DC Circuit Upholds ACA's Individual Mandate

Here is the opinion (PDF).

As I have argued repeatedly, the case is a simple one and Judge Silberman reaches the obvious conclusion. I do think the Anti-Tax Injunction Act may provide the SCOTUS an escape hatch for avoiding deciding the case in 2012.

I'm really busy so no deeper analysis from me until next week.

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Misunderstanding The Constitutional Option On The Debt Ceiling

In today's New York Times, Lawrence Tribe misses the mark on the argument about the Fourteenth Amendment's requirement that "The validity of the public debt of the United States, authorized by law, shall not be questioned. Tribe creates a straw man, declaring that "[s]ome have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause." No one has argued that as a general proposition. The argument is that "public debt authorized by law" may cause the debt ceiling to violate the Fourteenth Amendment, and in those circumstances, the President MAY be empowered to ignore the debt ceiling law.

Jack Balkin explains it best:

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Sixth Circuit Upholds Individual Mandate In ACA As Constitutional

Opinion here (PDF). The vote was 2-1. I discuss the dissent on the flip.

First, the court ruled that the individual mandate regulates economic activity:

The minimum coverage provision regulates activity that is decidedly economic. In Raich, the Supreme Court explained that “‘[e]conomics’ refers to ‘the production, distribution, and consumption of commodities.’” Id. at 25 (quoting Webster’s Third New International Dictionary 720 (1966)). Consumption of health care falls squarely within Raich’s definition of economics, and virtually every individual in this country consumes these services. Individuals must finance the cost of health care by purchasing an insurance policy or by self-insuring, cognizant of the backstop of free services required by law. By requiring individuals to maintain a certain level of coverage, the minimum coverage provision regulates the financing of health care services, and specifically the practice of self-insuring for the cost of care. The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan. Thus, the financing of health care services, and specifically the practice of self-insuring, is economic activity.

More on the flip.

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The Warmaking Power, The Constitution And The War Powers Act

Balkinization provides a copy of the 1980 Office of Legal Counsel Opinion (PDF) on the constitutionality of the War Powers Act. Jack Balkin notes this passage:

We agree that the term "hostilities" should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad.[. . . W]e also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by "guerrilla" operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to "command, coordinate, participate in the movement of, or accompany" the forces of the host government in operations against such guerrilla operations. 16 50 U.S.C. § 1547(c).

[. . .] The structure and thrust of those provisions is the "introduction" of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read "introduction" to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense.

(Emphasis supplied.) Obviously, it was the Obama Administration that introduced US military power into Libya. This was no act of self defense. It is beyond debate, in my view, that the 1980 OLC opinion conflicts with the Obama Administration argument that the United States is not engaged in "hostilities" covered by the WPA. More . . .

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