The Volokh Conspiracy

Sirius Satellite Radio has posted the audio of my recentdiscussion of the Supreme Court with George State University Professor Eric Segall on Stand Up! With Pete Dominick. The audio is available here.

Much of the discussion focuses on general issues of constitutional theory and the extent to which the Supreme Court is or is not politicized, which I recently wrote about in this article. But towards the end, we also talked about the gay marriage cases currently before the Court, including my view that laws banning same-sex marriage are examples of unconstitutional sex discrimination.

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the power of Congress. Last week I posted about Paul Clement’s first-rate brief on behalf of the Petitioner.

Yesterday, I filed an amicus brief on behalf of the Cato Institute, the Center for Constitutional Jurisprudence, and the Atlantic Legal Foundation. (My superb co-counsel are Ilya Shapiro of Cato, John Eastman of CCJ, Martin Kaufman of ALF, and, I am honored to say, former Attorney General Ed Meese III.) The brief is based upon my Harvard Law Review article, Executing the Treaty Power.

Here is the Summary of Argument:

The court below held that the Chemical Weapons Convention increased the power of Congress, empowering it to enact 18 U.S.C. § 229. It held, in other words, that Congress is not limited to those powers enumerated in the Constitution; rather, those powers may be increased by treaty. The Third Circuit believed that it was bound to reach this conclusion by a single, conclusory sentence in Missouri v. Holland: “If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920).

But the Third Circuit was obviously uneasy with this conclusion: “with practically no qualifying language in Holland to turn to, we are bound to take at face value” that single sentence. Bond, 681 F.3d at 162. “[I]t may be that there is more to say about the uncompromising language used in Holland than we are able to say, but that very direct language demands from us a direct acknowledgement of its meaning, even if the result may be viewed as simplistic. If there is nuance that has escaped us, it is for the Supreme Court to elucidate.” Id. at 164-65 (footnote omitted).

Judge Ambro was even more explicit in concurrence:

I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in . . . Holland . . . . I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.

Id. at 170 (Ambro, J., concurring) (quoting Rosenkranz, supra, at 1868 (2005)).

That one conclusory sentence from Holland implies that if a treaty commits the United States to enact some legislation, then Congress automatically obtains the power to enact that legislation, even if it would otherwise lack such power. It implies, in other words, that Congress’s powers are not constitutionally fixed, but rather may be expanded by treaty.

In Holland, Justice Holmes provided neither reasoning nor citation for this proposition. It appears in that one conclusory sentence, in a five-page opinion that is primarily devoted to a different question. And this Court has never elaborated. The most influential argument supporting this proposition appears not in the United States Reports but in the leading foreign affairs treatise. This argument has largely short-circuited jurisprudential debate on the question. But recent scholarship has shown that the historical premise of this academic argument is simply, demonstrably false.

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that “[t]he powers of the legislature are defined, and limited.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone–or a foreign government alone–can decrease Congress’s power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase domestic legislative power.

Holland is wrong on this point and it should be overruled. This Court should hold that treaties cannot vest Congress with additional legislative power.

Cato has more here. Our brief itself is available here.

This Thursday between 8 AM 9 AM eastern time, I will be appearing on Stand Up! With Pete Dominick, on XM Sirius satellite radio to discuss the major cases of the current Supreme Court term. I will be joined by Professor Eric Segall of Georgia State University. I am not sure exactly which cases we will discuss. But it’s probably a safe bet that the gay marriage cases will be among them, along with Fisher v. University of Texas, the affirmative action case. Since the show lasts a whole hour, we should be able to cover a significant amount of ground.

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the legislative power of Congress. In 1920, in Missouri v. Holland, the Supreme Court seemed to say yes. In 2005, in the Harvard Law Review, I said no. Several of us, including guest blogger Rick Pildes, debated the question at length earlier this year (my final post includes links to all the others). Now, the Court is poised to decide the question.

Yesterday, Paul Clement filed his brief on behalf of Ms. Bond. It is an excellent piece of work. Here is a taste:

[T]he government is left to argue that, in our constitutional system, a valid non-self-executing treaty grants Congress a plenary power to regulate all conduct that bears a rational relationship to the treaty .... [T]hat contention is fundamentally incompatible with the Constitution and this Court’s precedents. Missouri v. Holland does not establish that proposition, but if it did, it could not be reconciled with more recent decisions that respect our basic constitutional structure. Neither any clause of the Constitution alone nor all of them in combination grants Congress that kind of police power. And the last place such plenary power lies inchoate, waiting to be unleashed by a ratified treaty, is the Necessary and Proper Clause. An unchecked power to implement treaties would amount to exactly the sort of “great substantive and independent power” that the Necessary and Proper Clause cannot supply. McCulloch v. Maryland, 17 U.S. 316, 411 (1819); see also NFIB, 132 S. Ct. at 2591–92 (Roberts, C.J.).

I will be posting the other briefs (including mine, for Cato et al.) as they are filed.

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

In this week’s oral arguments in the two gay marriage cases before the Supreme Court, right and left-wing litigants continued to take unaccustomed positions on standing: the technical legal doctrine that determines whether would-parties to a lawsuit have enough of an interest at stake to be allowed to participate in the case. Historically, conservatives have tended to advocate restrictive standing doctrines, while liberals have been more permissive. Yet, in the gay marriage cases, it was conservatives who argued that the proponents of California’s Proposition 8 had the right to defend it in court, even though they are not government officials and do not suffer any concrete injury if California is forced to permit gay marriage. In the DOMA case, conservative members of Congress have claimed that they have standing to defend the Defense of Marriage Act in court, even though they wouldn’t suffer any clear injury if it were struck down.

During the oral argument in the Proposition 8 case, conservative justices tended to support the Prop 8 proponents’ right standing, while liberal ones were more hostile, an unusual stance for both groups. Matters are less clear in the DOMA case, where positions on standing among the justices did not as clearly break down along ideological lines. But they still don’t seem to be following the traditional pattern of liberals favoring broad standing rules, and conservatives narrow ones.

The standing issues in these cases arise from an unusual situation in which the liberal Democratic governor of California and the Obama administration chose not to defend the state and federal laws being challenged. As a result, outside conservative groups stepped in to do so. Even so, as I pointed out three years ago, these cases are part of a broader pattern in which standing issues no longer break down along predictable right-left lines:

[I]t is... likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones. The ideological split over the issue dates back to the 1970s and 80s, when broad theories of standing mostly favored liberal litigants (especially environmentalists) challenging policies adopted by Republican-controlled administrative agencies. At that time, many believed that Republicans had a lock on the presidency, and that conservatives had little to gain and much to lose from strategic constitutional litigation.

Neither assumption is valid today. Democrats are once again competitive in presidential politics. And the rise of conservative and libertarian public interest law groups combined with a more conservative Supreme Court, ensure that the right can play offense as well as defense in constitutional litigation. For these reasons, narrow standing rules no longer consistently tilt the playing field in favor of conservatives. But neither do they uniformly advance liberal interests. Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.

This doesn’t mean that positions on standing will become purely opportunistic. Some judges and legal scholars will continue to be principled advocates of either narrow or broad approaches to the issue. I myself have argued against restrictive standing rules, while others, such as co-blogger Jonathan Adler, have defended them. But such disagreements will now be less likely to break down along right-left ideological lines.

That’s the title of my forthcoming article in the University of Michigan Journal of Law Reform. My co-authors are Clayton Cramer and Joe Olson. The abstract:

This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme Court’s standard in District of Columbia v.  Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

Bans of knives which open in a convenient way (bans on switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives which, after being opened, have a safety lock to prevent inadvertent closure.

Prohibitions on the carrying of knives in general, or of particular knives, are unconstitutional. There is no knife which is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on the carrying of handguns set the upper limit for restrictions on knife carrying.

The Article is just the beginning of long overdue scholarly analysis of laws about knives. Not all households own firearms, but almost every household owns a knife, even if we do not count table knives. Issues involving knife carrying come up quite frequently in state criminal courts, but the legal academy has thus far failed to provide the courts with useful guidance. Persons who are interested in writing on Second Amendment issues, and who wish to make an original contribution, will find that there is plenty to write about.

In a recent column, Harvard Law Professor Cass Sunstein argues that Republican senators who have filibustered some of Barack Obama’s judicial nominees are more to blame than Democrats who previously filibustered GOP nominees because the Democrats only tried to block nominees who were “out of the mainstream,” while the GOP targeted any nominees whom they “strongly disagree” with on constitutional issues. Sunstein does recognize that “Senate Democrats deserve a fair share of the blame for this dismal situation” because “their use of the out-of-the-mainstream test sometimes veered disturbingly close to the disagreement test.” But he claims that the GOP has gone further than the Democrats did.

Sunstein’s critique is overdrawn. If the Republicans really tried to filibuster any Obama nominees with whom they have strong disagreements, they would have filibustered virtually all of them, not just a few. In reality, they have targeted nominees who they thought were even more liberal than the average nominees put up by a Democratic administration and/or had a “paper trail” that made them unusually vulnerable to attack. Democrats pursued a similar strategy during recent Republican administrations.

Most of the nominees that Democrats aggressively opposed during the Reagan, Bush I, and Bush II administrations were well within the mainstream of modern conservative constitutional thought. That was certainly true of high-profile cases such as Miguel Estrada and Peter Keisler. Similarly, most of the Democratic nominees targeted by Republicans under Clinton or Obama were well within the mainstream of modern liberal constitutional theory.

The underlying reality here is that there is a deep chasm between mainstream conservative views on constitutional interpretation and mainstream liberal ones. The standard-issue conservative Republican jurist believes that the Constitution provides extensive protection for gun rights and property rights, that the courts should enforce significant federalism-based constraints on Congress’ powers, that all or most affirmative action programs violate the Fourteenth Amendment, that Roe v. Wade should be overruled, and that there is no general right to privacy in the Constitution. The standard-issue liberal Democratic jurist thinks that all of the above is wrong. Each side believes that the other side is not only wrong about some particular issues, but has a fundamentally defective approach to constitutional interpretation and the role of judicial review. Much of what the conservative mainstream believes about constitutional law is completely anathema to the liberal mainstream, and vice versa.

Yet both sets of views are clearly within the “mainstream” of their respective parties. And both also enjoy substantial public support. I won’t run through all the relevant survey data here. But both liberal and conservative positions on most of the above constitutional issues have considerable appeal (usually at least 30-40 percent of the publidc). Neither is confined to a small clique of “extremists.”

Given the deep divide between the conservative mainstream and the liberal one, it is no surprise that the two sides have gradually escalated their efforts to impede the other’s judicial nominees over the last thirty years. If you think that the other party’s nominees are not just suboptimal but threats to fundamental constitutional principles, you are likely to seize on any possible tools that could be used to block them.

Once we recognize that the issue here is not a conflict between “extremists” and “the mainstream,” but one between two mainstream views that are very far apart, there are three reasonable responses to the situations. One is co-blogger Jonathan Adler’s view that both sides should abjure the use of the filibuster and other delaying tactics, and perhaps also stop opposing technically qualified nominees on the basis of their judicial philosophy. Another (closer to my view) is that both sides are equally entitled to consider nominees’ views and to use any blocking tactics permitted by the rules of the Senate. The Senate can, of course, change its rules. But until they do so, it is not wrong for either side to exploit them for the purpose of opposing judicial nominees who they believe are likely to make badly misguided decisions should they get on the bench.

Finally, partisans on each side can argue that their side is justified in using aggressive tactics and the other is not because the former is right about the constitutional issues in dispute, while the latter is wrong. Just as just wars have a different moral status from unjust ones, so the use of the filibuster against nominees who are badly wrong about key constitutional issues is more legitimate than its use against those who are right.

But there is a big difference between distinguishing between nominees with right and wrong views and distinguishing between those who are inside and outside of the mainstream. A mainstream view of the Constitution can be badly wrong. Indeed, if mainstream liberals are right about constitutional interpretation, that implies that the mainstream conservative view is badly wrong, and vice versa. Similarly, an extremist view can be correct. Between, say, 1890 and 1930, the view that the Constitution bans racial segregation in public education was clearly an “extreme” one. Ditto for the view that the Constitution imposes tight constraints on sex discrimination by state governments (considered extreme for much of American history), and quite a few other cases.

There are serious arguments for each of these three approaches. But none of them can rest on the assumption that either the Democrats or the Republicans are targeting only “out of the mainstream” nominees.

Ultimately, we should spend less time talking about whether nominees’ views are “out of the mainstream” and more time focusing on whether they are correct. For the most part, presidents of both parties are likely to nominate judges who are within the mainstream of their side of the political spectrum, and that mainstream is also likely to enjoy considerable public support (even if not always a majority). But when one side’s mainstream is deeply at odds with the other’s, that suggests that one or both are also badly misguided.

UPDATE: I have changed the title to better reflect the argument of the post.

The Open Borders blog – one of the best websites covering immigration issues – asked me to do a guest post on the implications of the Constitution to debates over immigration. The post is available here. Here is the intro:

The US Constitution does not in itself tell us what kind of immigration policy is right and just. But it is relevant to debates over immigration in at least three important ways. First, some opponents of increased immigration mistakenly argue that the Preamble and other parts of the Constitution commit the US government to ignoring the potential benefits of immigration to would-be migrants themselves. Second, there is a strong case that the original meaning of the Constitution restricts Congress’ power to limit migration, though it does give Congress broad power to deny citizenship to migrants. Finally, some structural aspects of the Constitution help limit the potential “political externalities” of open immigration, thereby weakening claims that the only way to prevent immigrants from having negative effects on public policy is to keep them out of the country entirely.

A district court recently ruled that Congress’s power to “Define and Punish... Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on the particular voyage, and it need not be arrested there.)

The Court’s reasoning simply restates the substantive theory of conspiracy liability. It does not explain why conspiracy principles can be used to expand the jurisdictional bounds of a constitutional provision. That is, what gives Congress the power to project federal conspiracy law past the high seas and into the foreign territory to conduct without a U.S. nexus.

Federal criminal law’s broad notion of conspiracy cannot necessarily be read back into the Constitution. This is particularly true when the constitutional provision has a specific jurisdictional provision – “the high seas.” The Framers surely understood that a piratical or felonious act on the high seas could be planned abroad, but chose to define jurisdiction by the locus of the defendant’s conduct.

Put differently, Congress’s ability to “Define” felonies is limited to those on the “high seas.” If Congress can define felonies on land as being connected to the high seas by conspiracy principles, it can presumably go even further – since conspiracy has no special constitutional status. Thus could it define conduct in a foreign country, with no U.S. nexus, that has some effect on the high seas (perhaps affects shipping) as a crime under the clause?

The Carvajal opinion does address my work on the Define and Punish Clause, which it declines to follow because while it “reflects extensive research, it ultimately simply reflects an “opinion of what the law ought to be, not what it is.” Given that my analytic approach the Clause is primarily originalist, I am not sure what this means. Certainly the 11th Circuit has not followed the broader implications of the understanding I develop, though it did accept the narrower ones regarding territorial waters. But the 11th Circuit already had a lot of water under the bow on application of the MDLEA to vessels on the high seas, which it could not easily disregard. Carvajal, however, is a case of first impression, and not in the 11th Circuit.

Indeed, Carvajal is in serious tension with another recent case in the D.C. District, U.S. v. Ali, 885 F.Supp.2d 17 (July 13, 2012), where another judge reached the opposite conclusion recently as to whether land-based conspiracy could be prosecuted as a high seas piracy. That case turned principally on the definition of piracy in international law, but also explicitly invoked constitutional avoidance principles, suggesting that federal conspiracy principles do not get read into the “Piracy on the High Seas” power. The Court in Ali also relied heavily on the Charming Betsy cannon, finding that it would violate international law to apply U.S. law to such conduct. It would equally violate international law principles of jurisdiction to apply U.S. law to a drug conspiracy in a foreign country – but the MDLEA explicitly rules out international law as a defense.

It is a neat coincidence that such cases of first impression concerning conspiracy and the High Seas crimes would arise within a few months of each other. And of course, all these extraterritorial issues are being decided in the shadow of Kiobel, where the distinction between the high seas and foreign territory has been argued quite sharply.

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

Last week, Dale Carpenter blogged about a particular amicus brief filed in U.S. v. Windsor, the Defense of Marriage Act (DOMA) case. In this brief, Dale, as well as co-conspirators Jonathan Adler, Randy Barnett, and Ilya Somin, set forth a “federalism-based” argument against DOMA. With all due respect to my co-conspirators, I agree with Ed Whelan at National Review Online that the argument is unsound.

Section 3 of DOMA provides: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It is codified at 1 U.S.C. 7, in the “Dictionary Act,” where it takes its place among a number of similar — though less controversial — definitions and interpretive rules that apply throughout the U.S. Code.

The “federalism” brief argues that this provision exceeds the enumerated powers of Congress and impermissibly trenches upon the power of the States over domestic relations. How can that possibly be so? This provision defines the word “marriage” only for purposes of federal law. Surely Congress has the power to define the words that it uses in its own statutes.

DOMA Sec 3, like all definitional provisions, is essentially a cut-and-paste function. Where you see X, you should read Y. Obviously Congress could simply have erased X throughout the US Code and replaced it with Y. Likewise, presumably, Congress could have added an “X shall mean Y” definitional section at the end of every single statute. And so, I can’t see any objection to a global definition at the beginning of the U.S. Code.

It seems to me — as a matter of federalism, at least — that such a definition could permissibly piggyback on state law entirely (“‘marriage’ shall mean marriage as defined by state law”), piggyback on state law partially (“‘marriage’ shall mean marriage as defined by state law, so long as it involves only one man and one woman”), or piggyback on state law not at all (“‘marriage’ shall mean a tuna fish sandwich”).

Indeed, the general presumption is against piggybacking at all. See Jerome v. United States, 318 U.S. 101, 104 (1943) (“in the absence of a plain indication to the contrary, … Congress when it enacts a statute is not making the application of the federal act dependent on state law.”).

Now, of course, one can imagine a problematic case, in which the definition itself runs afoul of some substantive constitutional provision. “Marriage means only a Catholic union between two Catholics as husband and wife.” And perhaps DOMA is such a case. But the problem, if there is one, has nothing whatsoever to do with federalism.

I analyzed these sorts of definitional and interpretive provisions at length in my first article, Federal Rules of Statutory Interpretation, which was published in the Harvard Law Review in 2002. As it happens, I honed this article while clerking for Justice Kennedy, and it was secretly disappointing that there was no opportunity for the Court to cite the article that Term. Now, at last, thanks to my co-conspirators, perhaps its time has come!

Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional.  Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers.  If DOMA Section 3 does not serve any legitimate interest — indeed, if a sweeping federal determination of marital status is constitutionally prohibited — then Section 3 cannot be justified under any level of scrutiny that might apply under equal-protection principles.  As we express it in the summary of the argument:

Before this Court addresses whether DOMA denies equal protection of the laws, there is a prior question of federal power. This question is prior not only because DOMA cannot stand if it falls outside Congress’s authority but also because DOMA can only survive an equal-protection challenge if it serves federal interests within Congress’s legislative jurisdiction. As Chief Justice Marshall recognized in McCulloch v. Maryland, only ends “within the scope of the constitution” are “legitimate.” 17 U.S. (4 Wheat.) 316, 421 (1819). That is true regardless of the level of scrutiny that this Court applies to Ms. Windsor’s equal-protection claim.

DOMA falls outside Congress’s powers. Marriage is not commercial activity, and DOMA is not limited to federal-benefit programs that might rest on the Spending Clause. Any action by Congress that falls outside its specifically enumerated powers must be justified under the Necessary and Proper Clause, and DOMA cannot pass that test. DOMA’s definition of marriage is not “incidental” to an enumerated power, see Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2591 (2012), because—as the Bipartisan Legal Advisory Group has said—its purpose is to make social policy regarding domestic relations rather than “carry into execution” some federal enumerated power. DOMA’s definition is also not “plainly adapted” to an enumerated end, see McCulloch, 17 U.S. (4 Wheat.) at 421, because it applies to more than 1100 federal statutes at once. Congress has never even considered how defining marriage to exclude same-sex couples will affect most of these statutory regimes, and BLAG does not defend DOMA in those terms. Finally, DOMA’s definition is not “proper,” see Printz v. United States, 521 U.S. 898, 923-24 (1997), because it violates the States’ equal sovereignty and lacks a limiting principle to cabin its usurpation of state control over domestic relations.

“[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.” Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). DOMA represents an unprecedented intrusion into this domain. That is true even though Congress has enacted statutes, such as for cross-border enforcement of child-custody and support orders, within the sphere of domestic relations. Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.

Congress’s establishment of a competing federal definition of family undermines the States’ sovereign authority to define, regulate, and support family relationships. Federal law is massively intertwined with state law, and state officials implement many federal programs, like Medicaid, in parallel with their own legal regimes. DOMA thus wreaks confusion and imposes substantial administrative costs that undermine States’ attempts to define marriage for themselves. These contradictory legal regimes impose costs on individuals as well, who cannot rely on a single body of law to settle their domestic status or hold a single set of officials politically accountable.

DOMA’s appropriation of the power to define marriage cannot be justified as simply defining a term relevant to administering federal programs. The statute is not called the “Defense of Marriage Act” for nothing: Congress did not act, say, to make ERISA function more smoothly, but rather because it wished to establish and promote a national definition of marriage to compete with States’ changing definitions. BLAG’s argument in defense of DOMA could not be clearer on this point. It asserts that “the federal government has the same latitude as the states to adopt its own definition of marriage for federal-law purposes.” Br. 19.

BLAG is wrong. The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do. That is the difference between a government with a general police power and a government of limited and enumerated powers. And it is sufficient to decide this case.

While sounding in federalism principles, the argument is ultimately aimed at the equal protection analysis the Court is set to review.  It is an argument that there is, in fact, a federalism component in the equal protection principles made applicable to the federal government through the Fifth Amendment’s Due Process Clause.  It is thus different from the 10th Amendment decision by Judge Tauro of the Massachusetts District Court in a similar case challenging DOMA.  Our argument doesn’t rely on the 10th Amendment, but on limits on federal power that would exist even without that amendment.  We take no position in the brief on whether there is also a 10th Amendment problem with DOMA.

The argument is largely the brainchild of Ernie Young, who led the drafting effort, along with the superb attorneys Roy Englert, Carina Cuellar, and Erin Blondel at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP.  You can read the entire brief here.

My wife Alison Somin and University of San Diego law professor Gail Heriot have published a short article in Engage criticizing recent claims that the Thirteenth Amendment, which bans “slavery” and “involuntary servitude,” and authorizes Congress to pass “appropriate” enforcement legislation, actually gives Congress broad authority to legislate on a wide range of other issues:

[W]hen one of the authors of this essay told a friend that she was going to an all-day academic conference on contemporary applications of the Thirteenth Amendment, he expressed shock that there could be any need to discuss this subject and inquired if he had missed a campaign proposal by Newt Gingrich to revive chattel slavery.

He was joking—obviously. Hardly anyone is foolish enough to believe that chattel slavery is in danger of making an imminent or not-so-imminent comeback in America.... Nevertheless, there has been a growing movement in both academia and the halls of Congress to use the Thirteenth Amendment’s Section 2 to address a variety of social ills thought to be in some way traceable back to slavery. This movement has had its greatest recent success with the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA). In passing that law, Congress relied solely on its Section 2 constitutional authority for its ban on crimes motivated by race and color....

The HCPA is not the only effort to make use of Section 2 in light of the breadth of the Jones decision. Scholarly articles argue that Section 2 authorizes hate-speech regulation; bans on housing discrimination based on sexual orientation; federal civil remedies for victims of domestic violence; federal child labor bans; bans on racial profiling; minimum-wage laws like the Fair Labor Standards Act; federal regulation of the mail-order bride industry; bans on race-based jury peremptory challenges; regulation of racial disparities in capital punishment; regulation of environmental problems in African-American communities; state laws like Colorado’s Amendment 2 that prohibit states and localities from passing bans on sexual orientation discrimination; regulation of the use of the Confederate battle flag; laws that aim to protect employees’ privacy and autonomy; federally funded job-training programs for the urban underclass; federal guarantees of public education; a federal ban on rape; anti-sexual harassment laws; legislation protecting “reproductive freedom”; bans on payday lending; and even changes to our nation’s “malapportioned, undemocratic presidential election system” because of its adoption on the alleged basis of “appeasement to southern slaveholding interests.” [footnotes omitted].

The Thirteenth Amendment is an attractive vehicle for advocates of nearly unlimited federal power because a broad interpretation of it would enable Congress to circumvent the limits the Supreme Court placed on Congress’ powers under the Commerce Clause and the Fourteenth Amendment in cases such as United States v. Lopez, United States v. Morrison, and NFIB v. Sebelius. Unlike a law authorized by the Commerce Clause, a law authorized by the Thirteenth Amendment need not have any connection to interstate commerce or “economic activity.” Unlike most parts of the Fourteenth Amendment, the Thirteenth Amendment is also not limited to regulating action undertaken by state governments, since it bans even purely private slavery and involuntary servitude.

The broad vision of the Thirteenth Amendment relies on nineteenth century precedent claiming that the Amendment was meant to ban the “badges and incidents” of slavery as well as slavery itself. But Gail and Alison effectively argue that these concepts were originally understood to be fairly narrowly construed. I would add that a broad interpretation of “badges and incidents” is inconsistent with the text of the Amendment itself, which bans “involuntary servitude,” as well as slavery. If the Amendment’s ban on slavery also covers anything even remotely connected to slavery as a “badge” or “incident” thereof, then there would be no need to include a separate ban on “involuntary servitude.” After all, such a broad theory of badges and incidents would surely make the ban on involuntary servitude completely superfluous. If anything qualifies as a badge or incident of slavery, involuntary servitude does.

So far, the broad interpretation of the Thirteenth Amendment has been primarily advanced by liberals. But, as Gail and Alison note, conservatives are starting to get in on the act as well, including in recent efforts to enact a federal law banning sex-selective and race-selective abortions.