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2013-07

July 31, 2013

But the Constitution tells us in no uncertain terms that equality is not to be apportioned based on popularity or political convenience. The courts should not shy away from applying the Constitution's guarantee of equality under the law; and, in fact, there are currently lawsuits pending in at least ten states that cite to the Constitution's guarantee of equality in an effort to overturn state limitations on marriage for same-sex couples. As these cases wind their way through the court system, the question of whether the Constitution guarantees a right to marriage equality that applies across the US could end up right back at the high court.

July 29, 2013

Specifically, the “inching right” sound-bite overlooks the most obvious, and potentially seismic, current influence on the Supreme Court’s conservative bloc. This is the recent surge of libertarianism among conservative academics, advocates, politicians and, of course, voters. For decades, and as recently as Barack Obama’s first year in the White House, libertarians were marginalized within the conservative pantheon. Now they rival, and in important areas threaten to displace social conservatives and big-government conservatives.

July 29, 2013

Lessig’s interactive treasure trove of founding-era material used technology unimaginable to Madison or Benjamin Franklin — but it contains the key to understanding how the framers of our Constitution understood political corruption and what sort of corruption they wanted the federal government to fight against. Justices who profess to be faithful to the Constitution’s original meaning cannot ignore these findings. Just as anti-corruption principles shaped the design of the Constitution, the court should uphold the power of the federal government to establish aggregate limits on campaign contributions to combat corruption.

July 25, 2013

Bipartisanship broke out in Washington last week. Thanks to a bit of statesmanship by Senators including John McCain (R-AZ), the Senate confirmed several of President's Obama's longest- waiting Executive Branch nominees and thereby made it unnecessary for Majority Leader Harry Reid (D-NV) to carry out a change to Senate rules to prevent filibusters over these nominees. Senator Reid's plan to change the Senate filibuster rules by a simple majority vote (rather than the two-thirds majority typically required for rules changes) has been threatened by both parties, but never executed.

July 17, 2013

The Administration has not postponed the employer mandate out of policy opposition to the ACA, nor to the specific provision itself. Thus, it's misleading to characterize the action as a "refusal to enforce." Rather, the President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration's judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA's framers. As a legal as well as a practical matter, that's well within his job description.

July 17, 2013

All told, presidents have apparently made more than five hundred recess appointments during intra-session recesses, including appointments of three cabinet secretaries, five court of appeals judges, ten district court judges, a director of Central Intelligence, a chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts. This settled understanding of the recess appointment power is in line with the Constitution’s structure, text, and history.

July 7, 2013

The chief justice and his conservative colleagues would require Congress to treat all states equally, even when there is a compelling reason for not doing so (i.e., some persistently engage in racial discrimination in voting and some do not), while permitting the government to discriminate against married same-sex couples on the flimsiest of justifications. This tortured understanding of equality simply cannot be squared with the Constitution’s text and history, which forbid invidious discrimination against all persons and also give to Congress broad powers to ensure that the Constitution’s promise of equality is a reality for all persons.