Please use this thread to post questions and comments regarding the readings and topics covered in Week 5: The Tenth Amendment, Presidential Privilege, and Presidential Power.
It appears that Michelle Obama might have a conflict of interest with the company that produced the Web site.. Her Princton classmate is an executive with the company and it was offered as a no bid government contract. If this was the reason for this company to be selected, can other companies that weren't selected sue the government? Can, individuals who have lost insurance and cannot access the web page for health insurance, can they sue for damages if they become ill, injured or die during this period of non coverage. Can they recover any costs related to this? Can they sue Michelle Obama or hold her in contempt over this association since she is not a Federal Officer but simply in the unusual position of First Lady and not immune to the protections a president would normally be granted under the Constitution?
I can't say for sure on your first point -- that sounds like more of a political issue than a constitutional one. But I would imagine there is a grievance procedure for government contractors. It would depend on the authorizing statutes.
On your second point, it sounds like someone would have a hard time showing they had standing to sue. Remember that to have Article III standing, you have to have an injury fairly traceable to the defendant's conduct, that can be redressed by the Court. Someone getting sick while waiting for the website would have a hard time showing that the injury was caused by the website -- my guess is that would be too attenuated to support standing. And certainly it would be a stretch to say that Mrs. Obama was to blame!
The First Lady likely receives something called "qualified immunity," which isn't as absolute as Presidential Immunity, but does confer some protection on many federal (and state) officials, so that they can't be sued all of the time by people who disagree with how they carry out their official duties.
Hi, I keep seeing this term "we granted certiorari" and I am not sure I understand it fully.
It somehow means that the superior court got involved in re-evaluating a lesser courts decision. However what I do not quite understand is that did the superior court act by itself to review the case or they were asked to do this.
As far as I remember "the writ of certiorari" was the official request written by a lawyer to ask the supreme court to review the decision of the lesser court.
Does "we granted certiorari" simply mean the court responded "yes" to the "writ of certiorari" or something else?
Yes, when the Court says, "we granted certiorari," it means that the Court agreed to take the case. In the usual course, the case would have made its way up the chain. A federal district court would have rendered the original decision. Then the losing party (the appellant) would have appealed to the circuit court. That court would have rendered a decision. The the loser (now the petitioner) would have petitioned the Supreme Court to "grant cert" and hear the case. As we discussed, the Court gets thousands of such requests and grants only about 70-80 of them per year. So when the Court "grants certiorari" it's a big deal: it means the Court will actually hear and decide the case.
So, short answer is yes, you're right: it means that the Court responded "yes" to the petition for certiorari.
As far as I understand these are a collection of papers/articles written by some of the Founding Fathers of US.
I am sure reading and understanding them is important from a historical and political science point of view.
What I am a little bit surprised is that the Scotus opinions are citing them.
A Federalist article is written by a single person and might contain whatever personal agenda he had at his time.
Whatever is written in Scotus opinions becomes "the law" and it is surprising to me that they can refer to individual personal opinions of a single person even is this person is among the Founding Fathers.
What makes the Federalist papers different from any other article, paper, note, newspaper article a Founding Father may have written at his time.
I am having difficulty in understanding the legitimization to cite an article written by one person long time ago in a text what is going to be the law up until the end of the US judicial system.
Where does the idea come from the the Federalist papers can be used to interpret the constitution?
This is a fantastic question and goes to the heart of constitutional interpretation. We can discuss this more a bit later in the class, but all of your questions are spot on. Some Justices look to find the "original" meaning of the Constitution, and what better place to look than the words and ideas of the people who wrote it? So these are taken (by some) as very good evidence of what the constitution may have meant when ratified. If what you care about as a Justice is that question -- what it meant in 1787 -- rather than what it may mean today, then those historical documents (as well as early legislation, ratification debates, and other publications) carry some weight. But this is an enduring dispute in constitutional interpretation. Again, excellent question.
The case Printz vs. US talks about only a small section of the Brady Act, namely the transition period before the nation wide system is up and running.
My understanding and the google search indications suggest that only the part about the transition period and CLEO involvement is stricken down. The part about merchants making compulsory background checks was upheld.
Yes, you are correct. The entire law was not struck down, just the part "commandeering" CLEOs. In the end, the federal database got up and running and the opinion had little practical effect. But the jurisprudential effect was large, as it reinvigorated the 10th Amendment as a way to curb federal power when applied to the states.
We have talked about the need for a standing to have a case.
There needs to be two parties, sides. One party has to have experienced some harm, the harm can be traceable to the other party and there needs to be some remedy the court can provide.
In the second page of the Cheney v US case the test mentions "The suit seeks decleratory relief ... "
I was wondering how a declaratory relief fits with the previous requirements we have talked about having a standing.
Another great question. Declaratory relief (or a declaratory judgment) is a form of relief, or remedy. You still need standing to get it. It's a way for litigants to get certainty on some legal point. For example, if you know someone is going to accuse you of infringing their patent, one of two things may happen. You can wait for them to sue you and then assert your defense (you'd be the defendant there), or you can sue first and ask the court for declaratory relief that you are NOT infringing their patent (you'd be the plaintiff). The cases are the same -- there's someone on each side, there's an actual controversy, and the court can provide relief. The declaratory judgment is the relief you'd be seeking in the latter category. If granted, it would mean you could continue doing whatever you were doing without having to worry about the patent infringement suit. It's a close cousin to an advisory opinion, which courts CANNOT give. The difference is that there is no case or controversy yet when an advisory opinion is sought. It's just a party asking the court for its opinion if ever a case did arise.
"This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress."
Some of the later constitutional amendments have this as a Section 2 in the text. For example the 22nd Amendment.
Does that mean this amendment has an expiration date and it has to be refreshed every 7 years.
If that is the case, this looks like they did not want to make the same mistake they did with the alcohol prohibition.
Does the congress have a vote for amendments with similar sections every 7 year ?
That clause provides a deadline of sorts, by which the proposed amendment had to be ratified, or else it would expire. Some of the amendments have that in the text of the amendment itself; in other cases the text was included in the clause proposing the amendment rather than in the text itself. In any case, it just means that the amendment had to be ratified within the specified time, or else it would "expire." The amendments we have were all ratified; they don't need to be re-ratified to take effect.
There are a few amendments, however, that were proposed and then expired. The Equal Rights Amendment comes to mind ("Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."). It was proposed in 1972, but expired before the requisite number of states ratified it.
It appears that Michelle Obama might have a conflict of interest with the company that produced the Web site.. Her Princton classmate is an executive with the company and it was offered as a no bid government contract. If this was the reason for this company to be selected, can other companies that weren't selected sue the government? Can, individuals who have lost insurance and cannot access the web page for health insurance, can they sue for damages if they become ill, injured or die during this period of non coverage. Can they recover any costs related to this? Can they sue Michelle Obama or hold her in contempt over this association since she is not a Federal Officer but simply in the unusual position of First Lady and not immune to the protections a president would normally be granted under the Constitution?
ReplyDeleteI can't say for sure on your first point -- that sounds like more of a political issue than a constitutional one. But I would imagine there is a grievance procedure for government contractors. It would depend on the authorizing statutes.
DeleteOn your second point, it sounds like someone would have a hard time showing they had standing to sue. Remember that to have Article III standing, you have to have an injury fairly traceable to the defendant's conduct, that can be redressed by the Court. Someone getting sick while waiting for the website would have a hard time showing that the injury was caused by the website -- my guess is that would be too attenuated to support standing. And certainly it would be a stretch to say that Mrs. Obama was to blame!
The First Lady likely receives something called "qualified immunity," which isn't as absolute as Presidential Immunity, but does confer some protection on many federal (and state) officials, so that they can't be sued all of the time by people who disagree with how they carry out their official duties.
We granted certiorari:
ReplyDeleteHi,
I keep seeing this term "we granted certiorari" and I am not sure I understand it fully.
It somehow means that the superior court got involved in re-evaluating a lesser courts decision.
However what I do not quite understand is that did the superior court act by itself to review the case or they were asked to do this.
As far as I remember "the writ of certiorari" was the official request written by a lawyer to ask the supreme court to review the decision of the lesser court.
Does "we granted certiorari" simply mean the court responded "yes" to the "writ of certiorari" or something else?
Thanks
Yes, when the Court says, "we granted certiorari," it means that the Court agreed to take the case. In the usual course, the case would have made its way up the chain. A federal district court would have rendered the original decision. Then the losing party (the appellant) would have appealed to the circuit court. That court would have rendered a decision. The the loser (now the petitioner) would have petitioned the Supreme Court to "grant cert" and hear the case. As we discussed, the Court gets thousands of such requests and grants only about 70-80 of them per year. So when the Court "grants certiorari" it's a big deal: it means the Court will actually hear and decide the case.
DeleteSo, short answer is yes, you're right: it means that the Court responded "yes" to the petition for certiorari.
Cody
Federalist Papers
ReplyDeleteAs far as I understand these are a collection of papers/articles written by some of the Founding Fathers of US.
I am sure reading and understanding them is important from a historical and political science point of view.
What I am a little bit surprised is that the Scotus opinions are citing them.
A Federalist article is written by a single person and might contain whatever personal agenda he had at his time.
Whatever is written in Scotus opinions becomes "the law" and it is surprising to me that they can refer to individual personal opinions of a single person even is this person is among the Founding Fathers.
What makes the Federalist papers different from any other article, paper, note, newspaper article a Founding Father may have written at his time.
I am having difficulty in understanding the legitimization to cite an article written by one person long time ago in a text what is going to be the law up until the end of the US judicial system.
Where does the idea come from the the Federalist papers can be used to interpret the constitution?
Thanks
This is a fantastic question and goes to the heart of constitutional interpretation. We can discuss this more a bit later in the class, but all of your questions are spot on. Some Justices look to find the "original" meaning of the Constitution, and what better place to look than the words and ideas of the people who wrote it? So these are taken (by some) as very good evidence of what the constitution may have meant when ratified. If what you care about as a Justice is that question -- what it meant in 1787 -- rather than what it may mean today, then those historical documents (as well as early legislation, ratification debates, and other publications) carry some weight. But this is an enduring dispute in constitutional interpretation. Again, excellent question.
DeleteThe rest of the Brady Gun Control Act
ReplyDeleteThe case Printz vs. US talks about only a small section of the Brady Act, namely the transition period before the nation wide system is up and running.
My understanding and the google search indications suggest that only the part about the transition period and CLEO involvement is stricken down. The part about merchants making compulsory background checks was upheld.
I just wanted to make sure that is the case.
Yes, you are correct. The entire law was not struck down, just the part "commandeering" CLEOs. In the end, the federal database got up and running and the opinion had little practical effect. But the jurisprudential effect was large, as it reinvigorated the 10th Amendment as a way to curb federal power when applied to the states.
DeleteThe suit seeks declaratory relief. (Cheney v US)
ReplyDeleteWe have talked about the need for a standing to have a case.
There needs to be two parties, sides. One party has to have experienced some harm, the harm can be traceable to the other party and there needs to be some remedy the court can provide.
In the second page of the Cheney v US case the test mentions "The suit seeks decleratory relief ... "
I was wondering how a declaratory relief fits with the previous requirements we have talked about having a standing.
Thanks
Another great question. Declaratory relief (or a declaratory judgment) is a form of relief, or remedy. You still need standing to get it. It's a way for litigants to get certainty on some legal point. For example, if you know someone is going to accuse you of infringing their patent, one of two things may happen. You can wait for them to sue you and then assert your defense (you'd be the defendant there), or you can sue first and ask the court for declaratory relief that you are NOT infringing their patent (you'd be the plaintiff). The cases are the same -- there's someone on each side, there's an actual controversy, and the court can provide relief. The declaratory judgment is the relief you'd be seeking in the latter category. If granted, it would mean you could continue doing whatever you were doing without having to worry about the patent infringement suit. It's a close cousin to an advisory opinion, which courts CANNOT give. The difference is that there is no case or controversy yet when an advisory opinion is sought. It's just a party asking the court for its opinion if ever a case did arise.
DeleteHope that makes sense!
"This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress."
ReplyDeleteSome of the later constitutional amendments have this as a Section 2 in the text. For example the 22nd Amendment.
Does that mean this amendment has an expiration date and it has to be refreshed every 7 years.
If that is the case, this looks like they did not want to make the same mistake they did with the alcohol prohibition.
Does the congress have a vote for amendments with similar sections every 7 year ?
Or do I misunderstand this ?
Thanks
That clause provides a deadline of sorts, by which the proposed amendment had to be ratified, or else it would expire. Some of the amendments have that in the text of the amendment itself; in other cases the text was included in the clause proposing the amendment rather than in the text itself. In any case, it just means that the amendment had to be ratified within the specified time, or else it would "expire." The amendments we have were all ratified; they don't need to be re-ratified to take effect.
DeleteThere are a few amendments, however, that were proposed and then expired. The Equal Rights Amendment comes to mind ("Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."). It was proposed in 1972, but expired before the requisite number of states ratified it.
Are specific pages assigned from the memo :Bybee OLC Memo re Torture: or we need to read the whole of it ?
ReplyDeleteOnce I click on the link, I was not able to see any "pages noted at the bottom of the page when you open each PDF"
Thanks
I was afraid those pages wouldn't come up, so I edited the Moodle site to include the page numbers. Here they are again:
DeletePlease read only pages 1-6 and 31-39 of the Bybee Memo on Torture, and pages 1-7, 13 -15, and 22-30 of the Yoo Memorandum.