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constitutional law

Presentation by Professor Huhn Today At Ohio Northern University Pettit School of Law

April 11, 2012

Professor Huhn will present a program today at 4:00 at Ohio Northern University Pettit School of Law on Same Sex-Marriage and Reality-Based Legal Analysis. The program will summarize the present status of same-sex marriage laws and litigation in the United States, and describe this movement within the larger intellectual and jurisprudential context of Legal Realism [...]

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"Immorality" and Social Change

April 7, 2012

Social conservatives sincerely believe that they are defending "morality" when they condemn practices such as  birth control, women working outside the home, and same-sex marriage. Their view is that these practices are "immoral" because they threaten the fabric of society. They consider people who condone these social transformations to be fostering "immorality." They are mistaken. [...]

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2011-2012 Supreme Court Term: Oral Argument in Reichle v. Howards, No. 11-262: Should the Secret Service Have Immunity From Liability for an Alleged Retaliatory Arrest?

April 7, 2012

During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service [...]

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Why the Courts Must Presume that Economic Legislation is Constitutional

April 6, 2012

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess [...]

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Separation of Powers and the Presumption of Constitutionality: A Response to Justice Kennedy

April 5, 2012

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation [...]

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On Liberty: Kennedy and Verrilli in Oral Argument in Health Care Case

March 29, 2012

If there is one constitutional principle that Justice Anthony Kennedy is devoted to it is the principle of "individual liberty." In oral argument yesterday Solicitor General Donald Verrilli took an opportunity to address that concept.

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2011-2012 Supreme Court Term: Decision in Coleman v. Court of Appeals of Maryland

March 21, 2012

Yesterday the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, No. 10-1016.   By a vote of 5-4, the Court ruled that the doctrine of "state sovereign immunity" applied in this case, ending Coleman's lawsuit against the State of Maryland.

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Health Insurers' Position on the Individual Mandate

March 20, 2012

In the debate over the constitutionality of the federal health care reform law, health insurance companies have maintained a low profile.  The individual mandate was their idea; they wish that the mandate was stronger than it is; and now they are signalling that if the individual mandate is struck down by the Supreme Court, they [...]

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Prominent Supporters of Terrorist Organization MEK May Not Be Protected by First Amendment

March 16, 2012

Dozens of prominent American political figures from both political parties may have violated the federal anti-terrorism law by advocating that the MEK should be removed from the list of designated terrorist organizations. Because of the Supreme Court's decision in Holder v. Humanitarian Law Project (2010), what they said may not be not protected by the [...]

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Health Care Briefs: Amicus Briefs Attempting to Protect Specific Provisions of the Affordable Care Act

March 14, 2012

In the event that the Supreme Court strikes down the individual mandate of the Affordable Care Act, the Court will have to decide whether the remainder of the Act, or certain provisions of the Act, are "severable" from the individual mandate and therefore constitutional.  A number of organizations have filed amicus briefs asking the Court [...]

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Health Care Briefs: Which Side Are You On?, continued. Et tu, Chamber of Commerce?

March 13, 2012

The amicus brief filed by the United States Chamber of Commerce on the issue of severability actually presents a highly persuasive argument in support of the constitutionality of the individual mandate in the Affordable Care Act.

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2011-2012 Supreme Court Term: Oral Argument in FCC v. Fox, continued

March 5, 2012

Two days ago I summarized the issues in this case.  Yesterday's post described the Solicitor General's presentation to the Supreme Court in oral argument.  Today I describe the television broadcasters' arguments to the Court, through their attorneys Carter G. Phillips and Seth P. Waxman.  The transcript of oral argument is available here.

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