Catch Twenty-Wu? The Oral Argument in Fisher v. University of Texas and the Obfuscation of Critical Mass

Sheldon Bernard Lyke*

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Introduction

On October 10, 2012, the Supreme Court of the United States heard oral argument in Fisher v. University of Texas at Austin[1]—the latest challenge to race-conscious affirmative action university admissions programs.[2] Court watchers highlighted that during the hearing, the Justices spent considerable time attempting to understand the meaning of a “critical mass” of minority students enrolled in universities and registered for individual courses.[3] Critical mass emerged from the Justices’ questions in oral argument in a sort of catch-22. On one hand, it faced critiques that it lacked a quantifiable threshold that judges could review. Any attempts, however, to quantify critical mass would place the concept into the unconstitutional realm of impermissible quotas.

The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout

Seth Barrett Tillman*

Editor's Note: This Essay is Part III of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here, and Part II is available here. Part IV of the exchange is forthcoming July 2013.

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I. The Debate So Far

In her 2009 Cornell Law Review article, The Anti-Corruption Principle,[1] and in subsequent publications (including here on Northwestern University Law Review Colloquy[2]), Professor Teachout thoroughly analyzed the text of the Constitution and the records of its framing, primarily relying upon three clauses[3]: the Ineligibility Clause, the Incompatibility Clause, and the Foreign Emoluments Clause.[4] This last clause, the Foreign Emoluments Clause, proscribes (at least some) United States officials from accepting gifts from foreign governments absent congressional consent. Teachout's key insight was to analogize corporate contributions and spending in domestic elections to these proscribed foreign government gifts. Like foreign governments, domestic corporations do not owe a duty of loyalty to the United States. A domestic corporation's duty of loyalty is owed to its stockholders, not to our polity as a whole. On the strength of this analogy, the Foreign Emoluments Clause enjoyed pride of place in her analysis; or, at least, that is the way her paper was commonly understood.[5] Teachout observes that the purpose, if not the primary purpose, behind these three provisions (and that of many other constitutional provisions) was to prevent or limit corruption. On this basis, she suggests that the Constitution embodies a structural anti-corruption principle. At this very generic level of abstraction, Teachout and I agree.

The Contraception Mandate

Caroline Mala Corbin*

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Health care in the United States is undergoing a sea change thanks to the Patient Protection and Affordable Care Act.[1] Among the many firsts: employers that offer health insurance must cover certain preventive services for women, including contraception.[2] This requirement—often called the "contraception mandate"—has generated a huge outcry, especially from the U.S. Catholic hierarchy.[3] Although churches, synagogues, mosques, and other religious institutions that predominately serve and employ people of their own faith are exempt, religiously affiliated institutions that serve and employ people of many different faiths—such as schools, hospitals, and social services providers—are not.[4] It is the lack of an exemption for the latter organizations that has generated protests.

A Tort Statute, with Aliens and Pirates

Eugene Kontorovich*

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The pirates of the Caribbean are back—not in another fantastical film, but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing the legal issues surrounding piracy. The crime has emerged as the test case for evaluating the major controversies about the reach of the ATS—namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Petroleum Co., justices of all persuasions invoked piracy as a paradigm or precedent,[1] as had the lower courts before them.[2] When the Court surprisingly delayed its decision, and instead called for new briefing and argument on the extraterritorial scope of the statute, it became even clearer that the battle over the ATS would be a naval engagement;[3] indeed, the briefs of the plaintiffs and numerous amici repeatedly refer to piracy as a paradigm.[4]

This Article examines the questions before the Court in Kiobel: the relevance of “piracies”—in the Constitution and at sea—to extraterritoriality and corporate liability under the ATS. Much of the discussion of piracy law in ATS cases has been inaccurate or incomplete.[5] Furthermore, the new attention to piracy should—but as yet has not—direct attention to pirates’ very own constitutional provision, the Define and Punish Clause,[6] which contains implicit limits on extraterritorial and, in particular, universal jurisdiction over international offenses.

Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground

Allen Rostron*

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When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas,[1] attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making.[2] Though he is often decisive in the sense of casting the crucial vote that determines a case’s outcome, his opinions can be maddeningly indecisive in the sense of failing to establish clear rules of law. Yet in Fisher v. University of Texas, Kennedy’s irresolute nature may prove to be a blessing. By taking a middle-ground position that significantly sharpens judicial scrutiny of affirmative action programs but does not absolutely bar them, Kennedy can finesse the issue in a way that accommodates the American public’s conflicted feelings about racial preferences, but simultaneously forces everyone to start thinking more seriously about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.

Free Speech and Public Space After Occupy Wall Street

On February 28th, 2012, the Northwestern Law Review hosted a discussion between Professors Michael Dorf and Timothy Zick on the Occupy Wall Street movement, moderated by Colloquy Editor Michael Downey. What follows is a transcription of their conversation.

 

Originalism and the "Individual Mandate": Rounding Out the Government's Case for Constitutionality

Dan T. Coenen*

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Introduction

From all appearances, the Supreme Court now is examining whether the new health care act’s minimum coverage provision—often referred to as the "individual mandate"—comports with the grants of power made to Congress by the Commerce Clause and Necessary and Proper Clause. The Court is considering this question against the backdrop of submissions made by the Solicitor General supporting the law and by a group of respondents vigorously attacking the law’s constitutionality. In a separate and more elaborate paper, I suggest that the two sides took dramatically different strategic approaches to the case.[1] The Solicitor General emphasized how the minimum coverage provision was of practical importance to Congress’s comprehensive effort to make health insurance policies broadly affordable on equal terms. Among other things, he argued that the provision guards against the risk that individuals would game the system by strategically waiting until they were ill to buy policies at a favorable, nondiscriminatory price. Although the government relied in part on McCulloch v. Maryland[2] to support the constitutionality of the minimum coverage provision, its argument was overwhelmingly based on modern precedents and pragmatic considerations.[3]

In striking contrast, the respondents rushed to occupy the originalist high ground. Time after time, in both their briefs and oral arguments, they drew attention to The Federalist, the "great Chief Justice," Hamilton, Madison, "the framing generation," "the founding," and "the Framers."[4] Counsel for the respondents took care to direct the Justices’ attention to the "text of the Constitution" and the purportedly "unprecedented" character of the minimum coverage provision.[5] They also sought to draw on the Framers’ original purposes by arguing that invalidation of the minimum coverage provision would vindicate "individual freedom," while ensuring that the federal government would not come to possess "plenary power."[6]

In my earlier work, I argued that these contrasting strategies raised a serious risk for the Solicitor General’s defense of the minimum coverage provision by creating the impression that the respondents held a much stronger hand than the government with regard to originalist lines of reasoning.[7] I also observed that the government in fact had—notwithstanding the picture painted by its non-originalist strategy—a powerful set of originalist arguments it could have made to the Court.[8] In this Essay, I seek to identify the central arguments that the Solicitor General might have offered but did not advance, while also focusing on key questions presented by the Justices at oral argument.

Gifts, Offices, and Corruption

Zephyr Teachout*

Editor's Note: This Essay is Part II of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here. Parts III and IV of the exchange are forthcoming September 2012. For questions or comments about the exchange, or to enquire about submitting a contribution, please contact the Senior Colloquy Editor.

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I. Four Disputes and One Agreement

When the Americans set up their new, independent government, they brought an original attitude towards offices and gifts which separated them from Europe. Gifts, which were part of European diplomatic culture, were recast as corrupt influences. And offices were viewed with fear of their corrupting power, given the examples of Europe. The "corner-stone" of the new Constitution, according to one delegate, was the provision designed to prevent lucrative offices from being sold and traded for political power.[1] This Essay, a response to Seth Barrett Tillman's challenge to my previous writing on founding era anxiety about corruption, is a partial exploration of the scope of the clauses relating to gifts and office holding.

Tillman[2] and I disagree about four significant things, but we agree about one even more significant thing. First, we disagree about how to interpret the changes in the Foreign Emoluments Clause from the Articles of Confederation to the Constitution. Second, we disagree about the precision with which the words "office under/of the United States" were used in the Constitution. Third, we disagree about how important these disputes are for contemporary constitutional doctrine. Fourth, we disagree about the degree of obsession with corruption exhibited by the men who wrote the original American Constitution. The bulk of this response will be to explain some of my thoughts on these disagreements.

Why Congress Did Not Think About the Constitution When Enacting the Affordable Care Act

Neal Devins*

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Introduction

Over the next few months, the Supreme Court will spend far more time thinking about the constitutionality of the Patient Protection and Affordable Care Act (ACA)[1] than Congress did when enacting the ACA.  Lawmakers largely ignored the Constitution; congressional hearings never considered whether the Supreme Court would uphold the statute nor did lawmakers engage in constitutional fact-finding.  Instead, consistent with the conclusions in my recent Northwestern University Law Review article, Party Polarization and Congressional Committee Consideration of Constitutional Questions ("Party Polarization"),[2] lawmakers were far more invested in advancing the partisan aims of their party than sorting out the constitutional implications of the signature legislative accomplishment of the 111th Congress.

In this Essay, I will provide a descriptive account of Congress's general disinterest in the Constitution when enacting the ACA.  In so doing, this Essay will serve as a case study that bolsters the claims and evidence in my Party Polarization article.  This Essay is but one in a series on party polarization and committee behavior regarding the Constitution.  In a forthcoming essay that will appear in the print pages of the Northwestern University Law Review, I will extend this Essay's case study to make broader claims about the impact of party polarization on Congress's interest in federalism, including congressional fact-finding on bills which implicate constitutional federalism.

The Bin Laden Exception

Erik Luna*

Editor's Note: This Essay is part of a Colloquy Exchange between Professors Alexander Reinert and Erik Luna on the Fourth Amendment concerns of the new, invasive airport security measures. Read Professor Reinert's contribution, Revisiting "Special Needs" Theory Via Airport Searches, here

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Introduction

On the evening of May 1, 2011, the American people learned that the world's most wanted criminal—Osama bin Laden—had been killed in Pakistan during a covert operation by an elite U.S. military team.[1]  The news triggered spontaneous gatherings and revelry across the country.  For the millennium's new generation, bin Laden had been the embodiment of evil—a real-life boogeyman—and, for some, "the first person I was ever taught to hate."[2]  Many young Americans will not be able to recall life without a deep-seated fear of the terrorist leader and the organization he founded,[3] all against a national backdrop of the so-called "war on terror."  Bin Laden's death thus signaled the "end of an era" and progress "toward a safer, less violent world."[4]

After emotions settled, however, thoughts turned to the ultimate impact of the operation that closed "the Bin Laden decade."[5]  The al Qaeda leader "really did a number on all of us," wrote New York Times columnist Thomas Friedman.[6]  "Who will tell the people how deep the hole is that Bin Laden helped each of us dig over the last decade—and who will tell the people how hard and how necessary it will be to climb out?"[7]  The question appears ripe in light of recent statements by top officials.  Defense Secretary Leon Panetta claimed that the United States was "within reach of strategically defeating Al Qaeda."[8]  Shortly thereafter, President Barack Obama announced that "Al Qaeda is under more pressure than at any time since 9/11" and that "more than half of al Qaeda's leadership" had been taken out.[9]

The time has come to begin a post-mortem examination, so to speak, of the damage wrought upon the United States and its people during the decade of bin Laden.  Some, like Friedman, have looked to the international consequences, including the perpetually troubled relationship among Arab states, Israel, and the United States, which was undoubtedly worsened by 9/11 and its aftershock.  This colloquy contemplates an area of domestic concern that represents perhaps the most palpable effect of terrorism on the American citizenry: travel by plane.  In his contribution, Professor Alexander Reinert provides thoughtful analysis of Fourth Amendment doctrine as applied to airport security.[10]  Here, I hope to complement his piece by offering some context on terrorism, with the goal of prompting discussion as to whether bin Laden's legacy will include yet another instance of constitutional exceptionalism.