Re: A Love Story

1

Their photogenic nature and touching story only puts heterosexual marriage at greater risk, Heebie.


Posted by: snarkout | Link to this comment | 03-27-13 1:10 PM
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Boy, this one really is bait for McManus.


Posted by: X.Trapnel | Link to this comment | 03-27-13 1:11 PM
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Pith helmets really do make everything better.


Posted by: LizardBreath | Link to this comment | 03-27-13 1:13 PM
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I regret posting that, because of course their story is sweet and touching and of course the government should have recognized their marriage.


Posted by: X.Trapnel | Link to this comment | 03-27-13 1:15 PM
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Aw hell. That made me cry.


Posted by: Di Kotimy | Link to this comment | 03-27-13 1:18 PM
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Have any of you watched the documentary about them? I'm pretty sure it streams on Netflix, though I once got it from the library and got too drowsy to finish, which was totally my own failing and not a reflection on the quality of the film. I was thinking about pulling it up tonight after the girls go to bed.


Posted by: Thorn | Link to this comment | 03-27-13 1:21 PM
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Photogenic, heartwarming, and also, cravenly: zow I guess it pays pretty well to be a "top IBM programmer" and a successful Manhattan therapist.


Posted by: redfoxtailshrub | Link to this comment | 03-27-13 1:28 PM
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2, 4: Let's just posit from the start that we all of us, excepting perhaps alameida, would like there to be estate tax reform in the progressive direction. But if rich straight people don't have to pay anything, then rich lesbians shouldn't have to either.


Posted by: oudemia | Link to this comment | 03-27-13 1:30 PM
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(I cried, obviously.)


Posted by: redfoxtailshrub | Link to this comment | 03-27-13 1:31 PM
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8: Comity!


Posted by: X. Trapnel | Link to this comment | 03-27-13 1:35 PM
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8: I don't care to go trawling around right-wing blogs to find it, but surely someone out ther is arguing that the real injustice here is the Death Tax, and if you would just eliminate that, the whole case would be moot.


Posted by: knecht ruprecht | Link to this comment | 03-27-13 1:38 PM
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Who will speak for the irascible, withdrawn and reclusive? I fear we are at risk of forgetting that same-sex couples should be permitted to marry, regardless of their respective powers of heartwarmingness or, even, their mutual affection.


Posted by: Flippanter | Link to this comment | 03-27-13 1:57 PM
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You know, I'm trying to be charitable, but I just can't come up with an explanation of this that makes any sense. So the Executive Branch can just arrogate the authority to decide unilaterally what laws are constitutional? And the Chief Justice of the Supreme Court thinks that's just hunky-dory? Justice Marshall is turning over like a Costco rotisserie chicken.

And Scalia's objection makes even less sense: "I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it. If we're in this new world, I don't want these cases like this to come before this Court all the time." Dude, if the Executive is declining to enforce the law, and that's in any way controversial, someone is going to take them to court. You can stay above the fray by refusing to grant cert, but you could have done that in this case, too. You might as well just say, "I know this decision is going to blemish my name in the eyes of history, and damn it, I don't like it!"


Posted by: knecht ruprecht | Link to this comment | 03-27-13 2:00 PM
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12: This would be a very different case if brought by the Shut Up, Little Man! guys.


Posted by: oudemia | Link to this comment | 03-27-13 2:06 PM
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I fear we are at risk of forgetting that same-sex couples should be permitted to marry, regardless of their respective powers of heartwarmingness

Balderdash! Half of big league advocacy litigation is finding the right plaintiffs for the test case. There's even a novel about that. Actually, there isn't yet, but there should be.


Posted by: knecht ruprecht | Link to this comment | 03-27-13 2:06 PM
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15: That reminds me of a conversation that I once had with some network television producers who were astonishingly unselfconscious about declaring the victims of various private and/or state-sponsored depredations "camera-ready" or not.


Posted by: Flippanter | Link to this comment | 03-27-13 2:11 PM
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What? 2 see 8. Inheritance is one of my strongest reasons to support gay marriage.

Also 7 and 12.

I'm covered, or at least my priorities.

Wonderful couple and story.

And according to my understanding, int'l travel needn't be luxurious, you can see a lot of the world relatively cheaply if that's what you want.

Ok, the Fifth ave apartment kinda struck me, but as I read it, I really didn't know how expensive it might be, and they had decades to pay for it.


Posted by: bob mcmanus | Link to this comment | 03-27-13 2:17 PM
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And I watched This Movie when it came out and cried a lot. Vanessa Redgrave could sell me anything.


Posted by: bob mcmanus | Link to this comment | 03-27-13 2:24 PM
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Have any of you watched the documentary about them?... I once got it from the library and got too drowsy to finish, which was totally my own failing and not a reflection on the quality of the film.

I also got the movie from the library and watched the start of it but didn't finish. I thought they were wonderful, but at some point I decided that knowing about them was enough and that I wasn't that invested in the complete narrative. But it might have just caught me on a bad night.

Incidentally I did like Souther Comfort, a documentary that also explores and humanizes specific relationships (in that case a small group of transgendered southerners).


Posted by: NickS | Link to this comment | 03-27-13 2:35 PM
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Damn, that made me all teary.


Posted by: Jackmormon | Link to this comment | 03-27-13 2:56 PM
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13: I'm probably missing something, but I don't know that that's prima facie wrong. In the early 19th century, before it was settled that the Supreme Court was the arbiter of constitutionality, didn't a lot of Presidents feel one of their duties was to veto unconstitutional legislation? They swear to uphold it too, after all.


Posted by: Minivet | Link to this comment | 03-27-13 3:11 PM
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There wasn't a lot of vetoing* before the Civil War, but some vetoes - like Jackson's Maysville veto - were a big deal.

*I think the majority of the Cleveland vetoes were veterans claims.


Posted by: fake accent | Link to this comment | 03-27-13 3:26 PM
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before it was settled that the Supreme Court was the arbiter of constitutionality, didn't a lot of Presidents feel one of their duties was to veto unconstitutional legislation?

Vetoing legislation and declining to enforce lawfully enacted statutes are two very different things. The Constitution expressly permits the President to do the former, and arguably prohibits him (through Article VI) from doing the latter.


Posted by: knecht ruprecht | Link to this comment | 03-27-13 3:32 PM
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Further to 23, even if you want to argue that the Executive Branch has some discretion in how fervently to enforce statutes (which seems trivially true), Roberts and Scalia are going much further. They seem to be saying that the President can and should not merely ignore, but act in direct violation of a law that the President deems unconstitutional. That just boggles my mind.


Posted by: knecht ruprecht | Link to this comment | 03-27-13 3:38 PM
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Republicans have made that argument going back as far as Nixon if not farther.


Posted by: text | Link to this comment | 03-27-13 3:40 PM
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23,24 -- I don't think the President has the authority to tell the IRS to ignore particular provisions of the tax code. He can prioritize audits, I suppose, and prosecutions for evasion, but that doesn't mean that the tax code doesn't say what it says, and the accountants won't have a professional obligation to refrain from taking deductions/positions contrary to the code. I don't think the President can direct SS survivors benefits to someone who doesn't qualify under the act. Etc.


Posted by: CharleyCarp | Link to this comment | 03-27-13 3:43 PM
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Republicans have made that argument going back as far as Nixon if not farther.

Right, but Chief Justices of the Supreme Court have generally not concurred with that view, if for no other reason than guarding institutional prerogatives.


Posted by: knecht ruprecht | Link to this comment | 03-27-13 3:46 PM
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26: Right. So are Roberts and Scalia smoking bath salts, or what?


Posted by: knecht ruprecht | Link to this comment | 03-27-13 3:48 PM
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Hasn't every President since Nixon said they thought the War Powers Act unconstitutional? They comply, but with a footnote saying they are doing so because they want to, not because they have to.

I had a whacky case years ago that had a weird reverse twist. Congress passed a law infringing on foreign policy, but gave the President the right to waive application of the infringing part. President signed the bill, issuing a signing statement saying that but for the waiver provision it was unconstitutional, and that he was going to use the waiver power. Then he did so. Then, some years later, in my case, there was an argument about whether the waiver was constitutional, or whether the infringing position had in fact become law.


Posted by: CharleyCarp | Link to this comment | 03-27-13 3:54 PM
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13: That argument sounds suspiciously similar to one that Woodward made about the sequester a while back.


Posted by: teofilo | Link to this comment | 03-27-13 3:59 PM
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27: True, but loyalty to party began to surpass institutional concerns in the 90s, though it wasn't apparent until Bush v. Gore. Federalists can no longer pretend to have a coherent ideology, which is both nice and scary.


Posted by: text | Link to this comment | 03-27-13 4:00 PM
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28: OK. I'm glad someone else was puzzled. I read it quickly today, and it did not make sense to me. But I've not seen a general WTF pushback (admittedly not been on the tubez much today) and it makes me think I am missing something crucial.


Posted by: JP Stormcrow | Link to this comment | 03-27-13 4:29 PM
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The link in 13.1 reminds me of GWB going around the world in 2006 saying that he was waiting for the Supreme Court to tell him what was what wrt GTMO, so (he assured Europeans) he could shut the thing down. He was less glib when they told him (in Hamdan) he was doing it wrong.


Posted by: CharleyCarp | Link to this comment | 03-27-13 4:43 PM
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28 -- They're posturing. Either because they have to look like they're not caving while they cave, or because they'd rather look like weenies who haven't thought it through than bigots on the wrong side of history.


Posted by: CharleyCarp | Link to this comment | 03-27-13 4:45 PM
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The way I understood their argument was that there are two alternatives:

1) If the executive thinks it's impossible to defend the constitutionality of a law then they can say so and refuse to enforce or defend it (in which case the court's job is easy since that's such a high bar), or the executive thinks it's defensible in which case they're obligated to follow the law and defend it in court.

2) The executive can enforce but choose not to defend a law even if it's defensible.

They were arguing that the status quo 1 is better than the new alternative 2, in part because 2 is a pain in the ass for the courts.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 03-27-13 4:54 PM
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If the executive actually decided to stop enforcing DOMA then there'd be a court case and the court would slap them down for ignoring a law which was not obviously unconstitutional.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 03-27-13 4:55 PM
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32 -- It's not quite that simple, the duty of the President to defend (or enforce) clearly unconstitutional statutes is a tough and somewhat unsettled legal question. Assume Congress passed a law returning all black people to slavery. Would the President have to enforce that law to the letter until a Court struck it down?

To date, I think the executive branch has almost always had a prudential position that it needs to enforce all laws until they are clearly rejected as unconstitutional by a Court. And that's a very very good norm to have -- we obviously don't want President Rand Paul refusing to enforce the income tax because CONSTITUTION. But it's not totally clear that a President has a duty to enforce a clearly unconstitutional law before a court says otherwise.

What is bizarre and offensive is the Roberts/Scalia idea that there's something wrong or unusual with the Executive enforcing a law it believes to be unconstitutional, and instead leaving it up to the Courts to decide.

[This is a little different than the "inherent powers of the Presidency" argument, which Presidents have used to say that the War Powers Act unconstitutional. Here, there's no question as to what Congress wants the President to do, and that (so long as it otherwise complies with the Constitution) that Congress can tell the President how to tax people. It's not a question of Congress intruding on the President's inherent powers. But if the otherwise-enforceable command from Congress is constitutionally impermissible because it discriminates, does the President have to enforce the command? I don't think there's really settled law on that subject]


Posted by: Robert Halford | Link to this comment | 03-27-13 5:05 PM
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Assume Congress passed a law returning all black people to slavery. Would the President have to enforce that law to the letter until a Court struck it down?

A president who doesn't veto that probably wants to enforce it.


Posted by: fake accent | Link to this comment | 03-27-13 5:08 PM
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Balderdash! Half of big league advocacy litigation is finding the right plaintiffs for the test case.

Which is why Abigail Fisher is such a perplexing choice.


Posted by: heebie-geebie | Link to this comment | 03-27-13 5:13 PM
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29: So, is the reason we aren't hearing about signing statements much with Obama that nothing has gotten through the Senate with anything he really objects/has been told by the corporate puppetmasters to object to?


Posted by: Natilo Paennim | Link to this comment | 03-27-13 5:31 PM
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40 -- The President is issuing signing statements on Defense appropriations bills that include provisions preventing him from releasing or transferring Guantanamo prisoners. Whether you're not hearing about that depends on who you're listening to, and what the various media outlets think their owners and customers want to see published.

39 -- I think there's a whole lot more luck involved than intentional effort in these things. I had a coffee a couple of weeks ago with our local ACLU guy to volunteer to take a case. They get zillions of requests every week, and can reject 95% out of hand. Look more closely, and maybe there's 1% worth making a real investment. This is a human system, subject to flaws and misjudgments. Whether you want to make an appellate run will end up depending on how the evidence came in, and how your individual judge sees things.

Whether you can get the attention of big time funders at the cert stage, or for amici at the circuit stage, that's going to depend on what kind of pitch you can really make.


Posted by: CharleyCarp | Link to this comment | 03-27-13 5:45 PM
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(29.2 refers to a bill passed in 1996, with a signing statement from Clinton.)


Posted by: CharleyCarp | Link to this comment | 03-27-13 5:51 PM
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43

Maybe she's the best of a bad lot?


Posted by: mcmc | Link to this comment | 03-27-13 5:59 PM
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43 to 39.


Posted by: mcmc | Link to this comment | 03-27-13 5:59 PM
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45

43 -- Or there's some connection to someone -- her incle is someone's brother-in-law -- or they feel like they got the most vulnerable, or the most sympathetic lower court judge. Or a lawyer who'd rather make history than stand down and let a better case go forward. I mean, the client comes to you, and while I suppose there are advocacy groups (and the ACLU) that are taking cases based on a pre-filing assessment, I think most really big time stuff comes in only after there's been a result at the lowest level.

I could be wrong, as this isn't what I do. I am involved in a situation where I talk with lawyers with similarly situated clients, though, and we certainly talk about who has what facts, and which judge, in deciding who ought to go first and push harder when there's something going on that affects everyone.


Posted by: CharleyCarp | Link to this comment | 03-27-13 6:06 PM
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42 -- Correction: 1998.


Posted by: CharleyCarp | Link to this comment | 03-27-13 6:11 PM
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I think some lawyer put feelers out for a test case subject, and she's the daughter of a childhood friend. Or something. She's just incredibly unsympathetic and just plain didn't get into UT.


Posted by: heebie-heebie | Link to this comment | 03-27-13 6:13 PM
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47 -- Whether that ends up mattering depends on the record in the case. If UT didn't argue that from the beginning, then maybe it's gone. Or maybe not.


Posted by: CharleyCarp | Link to this comment | 03-27-13 6:16 PM
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39: I have to admit, I have very little information on this case but have generally been assuming she's both a bad plaintiff, and the best available option -- because there really AREN'T any good plaintiffs on this issue.

But as I said, I'm very low-information on this case.


Posted by: Witt | Link to this comment | 03-27-13 6:40 PM
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Wouldn't the best plaintiff be one of those people who died in a fire because the fire department was required to hire firefighters who didn't pass the fitness tests and therefore couldn't do the job? Based on what I hear on off-topic political threads on sports discussion cites, such incidents must be occurring continually.


Posted by: Cryptic ned | Link to this comment | 03-27-13 6:47 PM
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13, 37 et al.:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Yeah, sure, that's not precisely what they were talking about today, but put me down in favor of the Executive taking seriously its independent responsibility to interpret and follow the Constitution.


Posted by: Opinionated Abe Lincoln | Link to this comment | 03-27-13 7:30 PM
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What is bizarre and offensive is the Roberts/Scalia idea that there's something wrong or unusual with the Executive enforcing a law it believes to be unconstitutional, and instead leaving it up to the Courts to decide.

So we are in violent agreement. Maybe I wasn't expressing myself well, but what you find bizarre and offensive is precisely the element that I can't find any sensible explanation for (except for the explanation in carp's 34, which is what I was getting at with 13.last).


Posted by: knecht ruprecht | Link to this comment | 03-27-13 7:45 PM
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Maybe I'm missing something, but doesn't DOMA simply preemptively prevent the federal government from recognizing same-sex marriages? So for Obama to elect to not enforce the law would mean directing the federal government to *begin* recognizing same-sex marriages?


Posted by: apostropher | Link to this comment | 03-27-13 7:58 PM
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Because that seems like a qualitatively different sort of executive action than, say, electing not to raid marijuana dispensaries.


Posted by: apostropher | Link to this comment | 03-27-13 8:00 PM
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Basically, yes. The question is whether Obama could simply ignore the law Congress passed and instruct the IRS, for example, to accept a same-sex marriage under New York law as constituting a marriage for income tax purposes. Arguably, if the law is in fact plainly unconstitutional, he could do so, consistent with his oath to uphold the Constitution.


Posted by: Robert Halford | Link to this comment | 03-27-13 8:02 PM
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55 to 53. And, to 54, yes again. Clearly the President gets the power to set enforcement priorities, and can do so based on his judgment (not simply on his view of constitutionality). There's a separate, but still interesting, issue of whether the President can ignore a clear, but also clearly unconstitutional, instruction from Congress.


Posted by: Robert Halford | Link to this comment | 03-27-13 8:04 PM
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In Merryman, Lincoln was wrong and Taney was right.


Posted by: CharleyCarp | Link to this comment | 03-27-13 8:17 PM
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I strongly disagree! But that is probably a conversation for another day, and also isn't really at all the issue presented by the President willfully disobeying DOMA.


Posted by: Robert Halford | Link to this comment | 03-27-13 8:22 PM
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I'd love to hear more about what you mean in 57, Charley.


Posted by: Von Wafer | Link to this comment | 03-27-13 8:27 PM
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It'll be another day in a half hour on the east coast.


Posted by: Sifu Tweety | Link to this comment | 03-27-13 8:27 PM
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I mean that I'm not impressed by President Lincoln's views on the separation of powers. And his ability to suspend habeas corpus by himself. And having his inferior officers ignore court orders.


Posted by: CharleyCarp | Link to this comment | 03-27-13 8:35 PM
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Not to speak for Carp, but I assume he thinks that Taney was right to conclude that only Congress, and not the President unilaterally, had the power to suspend habeas corpus under Art I, Section 9 (which prohibits Congress from suspending habeas corpus "unless when in cases of rebellion or invasion the public safety may require it").

Speaking for myself, I don't see anywhere in the Constitution a requirement that only Congress can suspend habeas corpus, and the suspension power is clearly designed to extend to cases of open warfare on American soil, which is when Lincoln suspended the writ.


Posted by: Robert Halford | Link to this comment | 03-27-13 8:36 PM
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Re-read Article II and tell me where the power to ignore court orders arises. Or to suspend.

But another day: I'm going to go do something else right now.


Posted by: CharleyCarp | Link to this comment | 03-27-13 8:37 PM
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having his inferior officers ignore court orders

I've always thought "all the laws but one" (plus, fuck you Roger Taney) was a sufficient rebuttal of that charge.


Posted by: Robert Halford | Link to this comment | 03-27-13 8:38 PM
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Re-read Article II and tell me where the power to ignore court orders arises. Or to suspend.

Mostly, from "all the laws but one." But, also, from being vested with executive power, the commander-in-chief power, and his oath to the Constitution. The Constitution fairly clearly contemplates that it's the President and the Executive branch who will be concerned with keeping the government and country alive in a case of rebellion or invasion, which also pretty clearly allows for an exercise of emergency powers that would include suspension of habeas and ignoring of Court orders to the contrary (but only in situations in which the suspension/ignoring is necessary to deal with the emergency of rebellion or invasion, and only for the length of the rebellion or invasion).


Posted by: Robert Halford | Link to this comment | 03-27-13 8:46 PM
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At least the plaintiff got a state song out of the whole business.


Posted by: Sifu Tweety | Link to this comment | 03-27-13 8:51 PM
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Halford, I'd've never picked you for Yooism. The fucking oath, are you kidding? Don't tell me what the Constitution contemplates, but what it says. The President can call out the militia, but Congress makes the rules, including for captures. Was John Merryman a captive? Or was he arrested for committing treason? In neither case does the President get to lean on the oath, and say shit like all the laws but one and just do what he pleases.

The courts of Maryland were open and fully functioning, and the public safety did not require suspension. That was the appropriate venue for a determination whether his arrest and detention was lawful.

Now you're going to tell me that DC authorities should have defied Marshall's orders during the Burr thing, and that Jackson was right to disregard the legal rights of the Cherokee Nation.


Posted by: CharleyCarp | Link to this comment | 03-27-13 9:47 PM
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Oh, whoops, its Congress that provides for calling forth the militia to suppress insurrections and repel invasions.


Posted by: CharleyCarp | Link to this comment | 03-27-13 9:53 PM
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(Marshall, in Ex parte Bollman explained that the suspension power belongs to Congress. Story thought so too. And so, basically, has everyone but Lincoln. Who ended up releasing Meryman, and all the other illegal captives, on parol the next year.)


Posted by: CharleyCarp | Link to this comment | 03-27-13 10:12 PM
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What explicit directive of Congress was Lincoln violating (I agree that changes the issue somewhat)? What directive was broken?

Surely at some point someone gets to make a determination that we're in a national emergency, involving invasion or rebellion, sufficient to justify ending habeas and imposing something like martial law. Why does that have to be exclusively Congress and not -- pending action by Congress -- the Commander in Chief who is charged with the operational command of the government during the invasion or rebellion? Why does Roger Taney determining otherwise -- under a power that is explicitly subject to suspension in precisely times of national emergency -- trump the determination of the branch responsible for actually dealing with the military invasion? The constitution has an express provision for what happens in cases of national emergency, explicitly contemplates that the Courts won't be exercising the right of habeas corpus, and explicitly (and structurally) grants the President the power to act as a commander in chief.

That's not Yoo-ism. The Constitution really does have, right there in plain language, an ability to suspend the right of habeas -- that is to say, quite precisely, to suspend the requirement that the executive obey the judicial branch when it comes to treatment of prisoners. Congress can clearly do that expressly. Before it does so, we're in Justice Jackson's concurrence in the Steel Seizures case land, which is to say the President is acting as a military commander, in a manner that's explicitly his constitutional responsibility, and ought to be able to exercise the military judgment to do the same thing (absent instructions to the contrary by Congress, of course).

Not to mention that "not a suicide pact" is for realz, and needs to inform any sane theory of the Constitution. Just because the Shoe Bomber was not an invasion by the Confederacy doesn't mean that the freaking Civil War wasn't a genuine national emergency.


Posted by: Robert Halford | Link to this comment | 03-27-13 10:12 PM
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There's not a suspension "power," just a prohibition on suspending habeas absent cases of invasion or rebellion.


Posted by: Robert Halford | Link to this comment | 03-27-13 10:13 PM
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I haven't read Bollman in many years, and just skimmed it now, but I didn't find any indication that Justice Marshall said anything like that the President was prohibited from suspending habeas in the absence of Congressional action during the beginning stages of a national emergency.


Posted by: Robert Halford | Link to this comment | 03-27-13 10:38 PM
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That is what Yoo-ism is. The President decides that enslaving people of a particular race would help him put down an insurrection, and so he can do it, and is answerable to no one (other than through impeachment). Nothing in Article II suggests a power to suspend, and, indeed, since the executive is going to be the respondent, it doesn't make any sense -- certainly not in the original vision of how power was diffused and the executive limited -- to give that office unilateral authority to exempt itself from review.

I'm not saying that the arrest of John Merryman was illegal. But once a person is in custody, the legality of that custody can be tested in court -- unless Congress has made the requisite finding. It's supposed to be difficult -- as is a conviction for treason.

Marshall didn't say the President couldn't suspend because no one in their right mind would have imagined an argument that he could. (He did direct the president to respond to court process later in the Burr case, though, to the annoyance of Jefferson, and was right to do so.) And Taney shows the suspension power to be legislative not executive.


Posted by: CharleyCarp | Link to this comment | 03-27-13 10:52 PM
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no one in their right mind would have imagined an argument that he could

Come on, that's wildly assuming a conclusion. It's pretty likely that a nation that had just gone through George Washington (not answerable to any court!) would have understood that there were exigent circumstances -- constitutional circumstances, namely invasion or rebellion -- when a President might have to suspend habeas in order to preserve the rest of the government. Particularly when part of the judiciary was effectively aligned with the rebellion/invasion.


Posted by: Robert Halford | Link to this comment | 03-27-13 11:11 PM
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You're avoiding what habeas is all about: it's a check on executive power. It's not something else.

I was just reading about the adoption of the habeas act of 1863 (which delegated authority to suspend to Lincoln). It was filibustered in the Senate, but the filibuster was broken by a silly technicality when the senator holding the floor yielded to another to make a motion to adjourn (one of several during the course of the thing) but didn't say the magic words that would get him the floor back if the motion failed (which it did).


Posted by: CharleyCarp | Link to this comment | 03-27-13 11:19 PM
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And Justice Kennedy's penultimate paragraph in Boumediene is adequate response to all the yammering from Yoo-ists about suicide pacts and all the laws but one.


Posted by: CharleyCarp | Link to this comment | 03-27-13 11:30 PM
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Of course it's a limitation on the executive. A limitation that the constitution expressly permits to be waived in cases of rebellion or invasion, neither of which were present in Boumediene but both of which were most definitely present in 1862 Maryland.


Posted by: Robert Halford | Link to this comment | 03-27-13 11:34 PM
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8

Let's just posit from the start that we all of us, excepting perhaps alameida, would like there to be estate tax reform in the progressive direction. ...

Doubtful.


Posted by: James B. Shearer | Link to this comment | 03-28-13 6:10 AM
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47

... She's just incredibly unsympathetic ...

There have been a bunch of these cases. Did you like any of the plaintiffs?


Posted by: James B. Shearer | Link to this comment | 03-28-13 6:15 AM
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A new take on the trolley problem.

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Posted by: Minivet | Link to this comment | 03-28-13 6:24 AM
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79: I haven't paid attention to any of the other cases.


Posted by: heebie-geebie | Link to this comment | 03-28-13 6:40 AM
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47

... and just plain didn't get into UT.

I haven't been following the case but I expect she could argue something like UT has two admissions tracks and although she didn't qualify under the first track she might have under the second she hadn't been excluded from it because of her race.


Posted by: James B. Shearer | Link to this comment | 03-28-13 6:52 AM
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79: I haven't paid attention to any of the other cases.

California v. Bakke .


Posted by: James B. Shearer | Link to this comment | 03-28-13 6:55 AM
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The Constitution doesn't expressly permit the Executive to waive the limitation on its authority. Before Lincoln, and after Lincoln, it's been understood that the Suspension Clause is in Article I for a reason (by your logic it should have been in Article III) and that reason is understood to be that only the people's representatives can waive the people's protection from the Executive.

Unlike the power to declare war, among others (see Dames & Moore v Regan) that have been allowed to migrate from art I to art II, this one has stuck in art I.


Posted by: CharleyCarp | Link to this comment | 03-28-13 6:55 AM
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82: No, they've made a case that even with the race points added in, she's well below the cut-off of admission. And of the 47 people (out of an entering class of 10,000+) who were admitted with worse scores and GPA than hers, 42 of them were white.


Posted by: heebie-geebie | Link to this comment | 03-28-13 6:58 AM
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85

82: No, they've made a case that even with the race points added in, she's well below the cut-off of admission. And of the 47 people (out of an entering class of 10,000+) who were admitted with worse scores and GPA than hers, 42 of them were white.

You have a reference for that? According to Wikipedia :

... She scored 1180 on her SAT;[6] the 25th and 75th percentiles of the incoming class at UT-Austin were 1120 and 1370 ...


Posted by: James B. Shearer | Link to this comment | 03-28-13 7:07 AM
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Here you go, Shearer.


Posted by: Sifu Tweety | Link to this comment | 03-28-13 7:10 AM
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85, 82: Fisher hasn't conceded that she wouldn't have gotten in under what she thinks a proper admissions regime would have been, and IIRC, because of how they structured the litigation there haven't been findings of fact on that question one way or the other. But her argument is that she has an injury even if she wouldn't have gotten in anyway, because, in her view, denial of equal treatment is per se a constitutional injury.


Posted by: potchkeh | Link to this comment | 03-28-13 7:12 AM
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86: Or this one.


Posted by: heebie-geebie | Link to this comment | 03-28-13 7:14 AM
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Yeah 87 is the wrong link. I had a longer comment but remembered what I just said in the other thread.


Posted by: Sifu Tweety | Link to this comment | 03-28-13 7:14 AM
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84 -- looks like we'll just have to agree to disagree. I agree that if Lincoln had not faced an actual condition of invasion or rebellion, or acted directly contrary to a Congressional command, what he did would have been unconstitutional. But, he did face such a situation.


Posted by: Robert Halford | Link to this comment | 03-28-13 9:09 AM
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looks like we'll just have to agree to disagree.

What happened to your commitment to pointless arguments?


Posted by: AcademicLurker | Link to this comment | 03-28-13 9:18 AM
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If Charley or Robert are still around, I'd be grateful if one of them would explain to me how this isn't just embedding the principle of nullification, albeit by another name, in the law. I suppose what Kennedy could mean is that, barring passage of a federal law on marriage equality, the federal government must accept the states' laws on the matter. Is that right?


Posted by: Von Wafer | Link to this comment | 03-28-13 9:41 AM
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91 -- Agree on disagreement. One last thing though: when you get a minute, re-read Dames & Moore. Now imagine some miracle by which Justice Rehnquist, lover of executive authority, gets transported back to 1861, and gets the petition from John Merryman. I agree that he'll bend over backwards to go with the executive, but after he writes 'suicide pact' and 'all the laws but one' he's going to have a pretty tough time doing what he did in Dames & Moore -- finding support out there for his pro-Executive contentions. AG Bates' opinion in response to Merryman is certainly thin on the law and traditions, and long on rhetoric.

(We know what Marshall did when faced with what was said to be a huge insurrection plot.)


Posted by: CharleyCarp | Link to this comment | 03-28-13 11:16 AM
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Now imagine some miracle by which Justice Rehnquist, lover of executive authority, gets transported back to 1861, and gets the petition from John Merryman.

In 1861, proto-Rehnquist would have sided with Taney, no? Anyhow, of course there's going to be less precedent for executive authority in 1862 than in 1981, both because of the accretion of precedent but more importantly because of fundamental changes (mostly positive, IMO) in the nature of the executive branch, some of which was occasioned by the civil war. But since I'm not an originalist I don't think that the exact practices of the very early republic are determinative, or even particularly persuasive, as to constitutionality.


Posted by: Robert Halford | Link to this comment | 03-28-13 12:06 PM
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93 -- The federalism argument isn't exactly nullification. The argument is that the federal government has no constitutional power to regulate marriage or family law (this is pretty widely accepted). Therefore, the federal government can't seek to influence the states' exclusive zone of regulating of things like marriage or family law, by defining marriage in a way that accepts some states' versions of marriage but not others.

I think that argument's pretty dumb -- the federal government doesn't have to take into account marriage as a consideration for federal law purposes at all -- there's no requirement that the US tax code has to have anything to do with marriage -- so why can't the federal government define marriage for its own purposes however it chooses. For example, I think that it would be constitutionally permissible for the Federal Government to recognize a same-sex marriage for income tax purposes even if a particular state found it unlawful. But it's precisely the kind of hazy, vague, ill-defined inherent-powers-of-the-states argument that's beloved of Justice Kennedy, so it's likely to succeed.

By the way, I think the arguments about "standing" in the gay marriage cases demonstrate what I've been saying for years, which is that standing doctrine is way out of control and has become a way for judges to duck and weave around the merits of cases to get outcomes they want.


Posted by: Robert Halford | Link to this comment | 03-28-13 12:16 PM
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And I think the brouhaha about standing demonstrates the lack of injury to the the plaintiffs caused by lifting the limit on SS licenses -- and indeed lack of rational basis for maintaining the rule against same sex licences.

I think the Feds would have to have a rational basis for recognizing some valid state marriages and not recognizing other valid state marriages. Yes they could get rid of all marriages based provisions, but frankly that's out in unicorn pony land.

I'm kind of interested in the full faith and credit angle. I take it that the FF&C clause wasn't used to validate interracial marriages, but I'm not clear why not. Is a valid licensed marriage not a public act?


Posted by: CharleyCarp | Link to this comment | 03-28-13 1:31 PM
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I think the Feds would have to have a rational basis for recognizing some valid state marriages and not recognizing other valid state marriages.

I agree!


Posted by: Robert Halford | Link to this comment | 03-28-13 1:37 PM
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89

Thanks for the link. The pertinent part of the Huffingtonpost article says:

It's true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.

and cites the University of Texas brief which says (p 15-16):

Petitioner also was denied admission to the summer program, which offered provisional admission to some applicants who were denied admission to the fall class, subject to completing certain academic requirements over the summer. JA 413a-14a. (UT discontinued this program in 2009.) Although one African-American and four Hispanic applicants with lower combined AI/PAI scores than petitioner's were offered admission to the summer program, so were 42 Caucasian applicants with combined AI/PAI scores identical to or lower than petitioner's. In addition, 168 African-American and Hispanic applicants in this pool who had combined AI/PAI scores identical to or higher than petitioner's were denied admission to the summer program.
6

Close reading of the statement in the brief reveals the summary in the Huffingtonpost is not accurate. There are two problems.

First while the five minority applicants had lower combined scores than Fischer the 42 Caucasian applicants had combined scores less than or equal to Fischer's. (Note minority students with equal scores were included with those with better scores in the count of minority students not admitted). This is the sort of stunt which would make me as judge distrust the whole brief.

Second while the Huffingtonpost article refers to grades and test scores these are combined in the AI score. The PAI score has a race component. So the comparison is being made to minority applicants who have already been given a bonus. Looking at the AI score alone the brief says (footnote 6 p. 16):

... In denying a preliminary injunction, the district court stated (without citation) that 64 minority applicants with lower AI scores than petitioner were admitted to Liberal Arts. Fisher v. Texas, 556 F. Supp. 2d 603, 607 & n.2 (W.D. Tex. 2008). That statement is not binding at the merits stage. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Although the district court did not specify whether it was referring to admissions to the fall class or the summer program, that figure can only encompass admits to the summer program. ...


Posted by: James B. Shearer | Link to this comment | 03-28-13 6:56 PM
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I take it that the FF&C clause wasn't used to validate interracial marriages, but I'm not clear why not. Is a valid licensed marriage not a public act?

I'm out of my depth here, but isn't it because the courts recognized a public policy exception to the full faith and credit clause?


Posted by: knecht ruprecht | Link to this comment | 03-28-13 7:56 PM
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Quibbling over whether she qualified for a summer bridge program for basically unqualified students doesn't exactly make me see her in a whole new, sympathetic light.


Posted by: heebie-geebie | Link to this comment | 03-29-13 5:26 AM
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Quibbling over whether she qualified for a summer bridge program for basically unqualified students doesn't exactly make me see her in a whole new, sympathetic light.

Her argument would be a program for unqualified students should be open to unqualified students of all races. Are you equally unsympathetic to the unqualified minority students who would be displaced if she wins?


Posted by: James B. Shearer | Link to this comment | 03-29-13 3:37 PM
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I've been thinking about predictions for outcomes in these cases, and here are two scenarios that I think are under-rated. I wouldn't go so far as to predict that either is likely (since there are too many outcomes for any to be all that likely) but I like them as bets.

In Prop 8, a 1-state solution but with different reasoning than the 9th circuit. Namely a 4-1-4 split with Kennedy saying "Maybe some of the other states do have a rational basis for banning gay marriage, but in this case California didn't show us one." Not going so far as to say "If you have civil unions you definitely don't have a rational basis" but rather just "Well, in this particular case for this particular state there just wasn't a rational basis." The main argument against this outcome is that it's not very Kennedy-like (it's more what O'Connor would do in this situation), but Kennedy's clearly looking for a way out.

For DOMA a federalism opinion with a surprising number of conservatives on board. I think Kagan is a bad ass, and knows how to work Roberts. I think Alito is not a lost cause, and I think if it's clear that DOMA's going down one way or the other that it makes a lot of sense for the conservatives to try to put their spin on it. Something like a 2-5-2 or 1-5-3 or 2-4-3 with a federalism opinion written by Roberts (and some liberals being unwilling to sign on to the reasoning, but concurring in judgement) could very well happen.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 03-30-13 10:06 AM
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