Monday, June 8, 2015
One prominent theme in Barack Obama’s presidency is that of the escalation of conflict between traditional religious belief and executive power–in particular the executive/administrative powers brought to bear against religious believers and institutions in a variety of contexts. One can agree with this description, of course, while seeing that escalation of conflict as either a favorable or regrettable development. A recent essay by Adam White in The Weekly Standard takes the latter view; more than a few other commenters and legal scholars take the former.
Today’s Supreme Court decision in Zivotofsky v. Kerry does not obviously concern this issue. It instead involved a separation of powers question: whether a congressional statute permitting a U.S. citizen born in Jerusalem to request a designation of his place of birth as “Israel” on his passport unconstitutionally interfered with the Executive’s power to recognize sovereign nations (while Israel has been recognized, the national status of Jerusalem remains unresolved). Ultimately the Court held, inter alia, that the Executive’s power to receive ambassadors gives him the exclusive power of recognition, and that this statute interfered with that power. So in a tussle between Congress and the President, the President won.
And yet this was not simply an inter-branch heavyweight fight. Consider the question of Jerusalem. Jerusalem’s status is not only a matter of geopolitical disagreement, but of deep geo-religious contention. That contention stretches back through the past millennia to innumerable wars and religious controversies. The function of this particular statute is plain: to allow those U.S. citizens born in Jerusalem and who, for religious reasons (that is, reasons that may implicate religious convictions), believe that Jerusalem is properly described as an Israeli city, the right to note that association on their passports. As Justice Scalia says in his dissent: Zivotofsky’s parents believed “as a matter of conscience” that it was important to note “their son’s birthplace as part of Israel” and that his “Israeli nativity ‘not be erased’ from his identity documents.” In defending Congress’s power to enact the statute (under the Naturalization Clause and the Necessary and Proper Clause), Scalia continued: “[Congress may conclude] that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”
Whoever has the better of the argument as a matter of constitutional interpretation, one can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so. It took an aggressive view of Executive power (both as to whether sovereign recognition powers are exclusive to the Executive and as to whether this particular designation of an individual citizen counts as sovereign recognition) in a context in which it was, once again, opposed to traditional religious conscientious belief. A notation by a private U.S. citizen on his passport, motivated by religious belief in the importance of the designation, is thus transformed into a usurpation of Executive power.
In dissent, Justice Scalia cited Bowen v. Roy (1986), a religious liberty case where parents objected to government use of the Social Security number of their daughter, “Little Bird of Snow,” and to having to supply that number when they applied for benefits. According to the parents’ Native American beliefs, a person needs control over his life for spiritual reasons and use of the number would have “rob[bed] the spirit” of their daughter.” Ultimately the Court had no occasion to balance the government’s interest against a possible religious burden, because it held that the government can use the number for its own internal purposes without impairing anyone’s religious conscience. But a majority of five justices held that the parents should not be required to supply the number, because the government’s asserted interest in combating welfare fraud would not be much compromised if those with religious objections did not have to supply Social Security numbers.
Obviously Justice Scalia is not suggesting that the Zivotofsky parents have a religious freedom claim here. So why the citation to Bowen?
Perhaps for this reason. The argument is not about constitutional compulsion, but about religious (and other sorts of) accommodation. The government is not forced by the Constitution to make an exception for the Zivotofskys. But Congress did–here, and in other contexts (allowing those who wish to specify “Belfast,” rather than “United Kingdom,” to do so on their passports, for example). It grants these exceptions not because it is thereby recognizing Israel’s sovereignty over Jerusalem (as it is not thereby de-recognizing the United Kingdom’s sovereignty over Belfast), and not because the Constitution commands it, but because it understands that for some American citizens, religious and identity-based convictions about Jerusalem’s status are deeply important, and because people care about what the federal government says about them on official documents. The Obama Administration’s position, instead, was that this sort of conscience-based designation trenches on a quite expansive reading of Executive authority. And in staking out that position (and now in vindicating it before the Supreme Court, in a ruling about which I have no comment) the Administration repeated the pattern of conflict with traditional religious belief that it has established in several other controversies and that has characterized its years in power.
Randy Barnett has a long post at Volokh Conspiracy arguing (with reference to his 2004 article on The Original Meaning of the Judicial Power) that "the 'judicial power' included the power to nullify unconstitutional laws." His basic claim is that "when the Supreme Court finds that a law is unconstitutional, under our system of government, that law is rendered null and void" (emphasis in original). He says that a judicially nullified law is like a dead parrot. Judicial review kills, and dead is dead.
But we shouldn't need Miracle Max to help us realize that there's a big difference between mostly dead and all dead. Mostly dead is slightly alive. And when it comes to law, a judicial ruling of unconstitutionality does not always kill; sometimes it's just a flesh wound.
Take Marbury v. Madison, for example. What is "that law" that this decision "rendered null and void"? The Judiciary Act of 1789? Just Section 13? Just part of Section 13? Or just certain applications of one part of Section 13?
There is no right answer, because the question is wrong. The Supreme Court in Marbury did not render any particular law null and void. As far as the Court was concerned, the law was already void to the extent of its conflict with the Constitution, and it was the duty of the Court to refuse to give it effect as law in resolving the case. So the Court did just that; it refused to give effect to Section 13 of the Judiciary Act of 1789 because doing so in that case would have caused the Court to exceed its jurisdiction under Article III.
The reasons the Court gave for this refusal would require a similar refusal for every other attempt to secure a writ of mandamus from the Supreme Court in an exercise of original jurisdiction outside the limited categories of cases specified in the Distributing Clause of Article III. And as a matter of law, these reasons are to be given effect going forward by virtue of precedent and preclusion doctrine in addition to the intrinsic force they possess for participants in the legal system. But the Judiciary Act of 1789 itself underwent no change by virtue of the Court's ruling in Marbury. The Court declared the law void, but did not render the law void. Put another way, the Court recognized the constitutional conflict and refused to give effect to the statute, but it did not take the law and make it void.
For a contrast with the judicial nullification power described by Barnett (and the concept of judicial review supported by many many others), see the judicial displacement understanding set forth in my first law review article, Partial Unconstitutionality. Here's what I said there about Marbury v. Madison:
The statutory grant of authority for the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction went beyond the Article III grant of original jurisdiction to the Supreme Court. As inferior law, the statutory grant was therefore unconstitutional to the extent that it went beyond Article III, but no further. The Judiciary Act of 1789 was still “law” to the extent that it was not “void.” The operative concept of judicial review here was one in which the Court, in disposing of the case before it, was obliged to apply the superior law of the Constitution in preference to conflicting, inferior statutory law: “If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.” Marbury v. Madison, 5 U.S. at 178.
Friday, June 5, 2015
Having just finished teaching "Payment Systems" again this past semester, I was delighted to come across this "news" item (on the "Eye of the Tiber" blog), about a particularly Catholic use of evolving electronic methods of payment.
The Pontifical Council of the Laity recently published Archbishop Chaput's remarks to his brother priests at their annual convocation in Philadelphia. The speech is worth reading in its entirety, of course, but this paragraph quoting Gerard Bradley was especially poignant...and frightening:
Professor Gerard Bradley of the University of Notre Dame School of Law is a constitutional scholar and a longtime friend of mine. Recently he shared with me his belief that “the most perilous [developing challenge that U.S. Catholics face] has to do with the establishment of ‘sexual health,’ ‘gender identity’ and ‘sexual self-determination’ as paramount goods even for children and minors — such that their parents and the Church become serious threats to these minors’ alleged well-being. In other words, Catholic parenting is in jeopardy of being branded, in relatively short order, as a kind of child abuse, a calumny against which our diminishing religious liberty protections will be thin shields.”
