Today in Supreme Court History: June 16, 1960

6/16/1960: The 23rd Amendment is submitted to the states.

Comments

[Dan Schiavetta]

Bigelow v. Virginia, 421 U.S. 809 (decided June 16, 1975): with abortion now legal with Roe v. Wade, First Amendment violated by statute criminalizing advertising for abortions (does this holding survive Dobbs?)

Susan B. Anthony List v. Driehaus, 573 U.S. 149 (decided June 16, 2014): pro-life group making pre-enforcement challenge to law prohibiting false statements during election campaigns alleged enough “imminent” (as opposed to “chimerical”) harm to create “case or controversy” allowing suit to go forward (here, they had falsely claimed that a Congressman had voted for taxpayer-funded abortions) (law eventually struck as in violation of First Amendment, 814 F.3d 466) (BTW he lost the election)

Kirtsaeng v. John Wiley & Sons, 579 U.S. 197 (decided June 16, 2016): court doesn’t have to award attorney’s fees (as is allowed by Copyright Act) if losing party pursued reasonably strong argument (defendant bought plaintiff's textbooks in Thailand and resold them in the U.S. for far less than what plaintiff was charging for them here; he won on his defense of the “first sale doctrine” -- any purchaser of a book can re-sell -- but copyright holder’s position was also reasonable)

Universal Health Services v. United States, 579 U.S. 176 (decided June 16, 2016): parents of Medicaid-receiving teenager who died because of misprescribed drug given by uncertified doctor could pursue qui tam (“private attorney general”) action against health provider under False Claims Act (defrauding government by submitting false certifications for Medicaid reimbursement)

United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (decided June 16, 2023): Government can move to dismiss qui tam suit if suit does not advance governmental interest (suit under False Claims Act alleged hospital overcharging Medicare) (AG showed that costs of litigation would outweigh recoupment and possibly require disclosure of privileged health information)​

Davis v. United States, 564 U.S. 229 (decided June 16, 2011): illustrates the “good faith” exception to the exclusionary rule: admitting evidence obtained during search that was legal at the time (police can search passenger compartment of arrestee’s car without further suspicion needed, New York v. Belton, 1981, but later held illegal, Arizona v. Gant, 2009)

Lora v. United States, 599 U.S. 453 (decided June 16, 2023): requirement in 18 U.S.C. §924(c) (using firearm in course of crime of violence or drug trafficking) that sentencing must be consecutive with any other crime does not apply to sentencing under later-added subjection (j) (firearm is used in murder or manslaughter); sentence can be concurrent

Virginia v. Hicks, 539 U.S. 113 (decided June 16, 2003): rejecting defendant non-resident’s argument that ordinance against loitering in public housing development was facially overbroad under First Amendment Freedom of Association

Allen v. St. Louis, I.M. & S.R. Co., 230 U.S. 553 (decided June 16, 1913): state commission’s rate for intrastate tariff was not confiscatory “taking” because rationally based on proportion of railroad’s interstate vs. intrastate business

United States v. Dickinson, 331 U.S. 745 (decided June 16, 1947): Tucker Act claim (compensation for a Fifth Amendment “taking”) for land lost due to flooding from government-built dam accrued not when water began to rise but when it stopped rising

Kent v. Dulles, 357 U.S. 116 (decided June 16, 1958): passport cannot be conditioned on denying Communist Party affiliation; right to travel is a “liberty” protected by Due Process clause of the the Fifth Amendment; Douglas writes for a 5 - 4 Court

NLRB v. Gissel Packing Co., 395 U.S. 575 (decided June 16, 1969): showing of signed, single-purpose authorization cards required employer to bargain with nascent union

[Both Sides]

Respectfully (I like your contributions), that’s not the rule from Gissel Packing. Employers are *not* required to bargain with unions based on a card majority. It’s only as a *remedy* for extreme, pervasive employer unfair labor practices where the union has also shown majority support at some point (typically by showing signed cards) that the employer may be required to bargain.

[Dan Schiavetta]

Thanks.

I was going by Warren’s formulation (admittedly this is not the only issue the Court held, but the quickest to summarize): “whether union authorization cards, if obtained from a majority of employees without misrepresentation or coercion, are reliable enough generally to provide a valid, alternate route to majority status”, the answer to which was “yes”.

[Both Sides]

That was the response to the question of whether elections must always be required. The answer was no, in that unions could still obtain *voluntary* recognition from employers based on cards, and that card majorities could be used as part of the requirements for a ”Gissel bargaining order” remedy, as described above. In fairness, it’s not the clearest case.

[Noscitur a sociis]

(does this holding survive Dobbs?)

As applied to legal, out-of-state abortions, as was the issue in the case—it’s hard to see why it wouldn’t.

[Seamus]

Because Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), held that it wasn't a first amendment violation to ban advertising for a lawful business, so long as the business is not constitutionally protected. (The Court specifically distinguished Bigelow on those grounds, 478 U.S. at 345, but since Dobbs, that distinction no longer holds.)

[Noscitur a sociis]

United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (decided June 16, 2023): Government can move to dismiss qui tam suit if suit does not advance governmental interest (suit under False Claims Act alleged hospital overcharging Medicare) (AG showed that costs of litigation would outweigh recoupment and possibly require disclosure of privileged health information)​

This isn’t wrong, but it’s missing the point a bit. The key dispute was whether the government could move to dismiss if it declined to intervene at the outset of the case but did so later on. (The answer apparently is yes.) And the second issue was what standard to apply if the government did move to dismiss: the answer is that the court needs to consider the relator’s interest but should generally defer heavily to the government.

[Dan Schiavetta]

True. Thanks.

[Dilan Esper]

Davis is a really important case because as Prof. Kerr points out, it deters Fourth Amendment litigation over novel claims. Even if the Defendant wins they are never going to get the evidence excluded.

[Noscitur a sociis]

It’s one thing for the criminal to go free because the constable has blundered. It seems a bit much for the criminal to go free because the constable did something that the Supreme Court explicitly said constables can do.

(I didn’t realize that Prof. Kerr argued Davis! Very cool.)

[David Nieporent]

Happy Father's Day!

[Mr. Bumble]

Probably the best thing most of us have ever done.

[David Nieporent]

+100. (See: it's possible for Mr. Bumble and I to put aside our differences on occasion.)

[SMP0328]

The 23rd Amendment would be adopted, but that was as far as the States were willing to go (none of the Southern States wanted to go even this far). When Congress proposed full participation in Presidential elections, along with full Congressional representation and State-like status in the amendment process, the States balked. Over seven years (1978-1985), the proposal received only 16 ratifications; 38 needed for adoption.

[Dan Schiavetta]

It is clearly the right thing to do but the political party that would stand to lose representation opposes it, giving b.s. reasons. We’ve seen this before.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The fact that it is disputed for many reasons, not all partisan, shows there is nothing clear about how right it is.

I wish people would stop using those adjectives -- clearly, indisputably, unarguably, without doubt, etc etc etc.

[Seamus]

No, it's not "clearly" the right thing to do. The right thing to do would be to give D.C. back to Maryland (the way the portion of D.C. on the west side of the Potomac River was given back to Virginia). (Of course, neither Maryland nor D.C. would accept a solution that doesn't give the Democrats two new senators.)

Alternatively, D.C. should be given statehood, but only after it has been expanded to include the entire metropolitan area, including Arlington, Fairfax, Loudoun, and Prince William counties in Virginia (and maybe Stafford as well) and Montgomery and P.G. counties in Maryland (and maybe Charles and Howard as well). Of course, that would never be accepted, either, because by taking lots of Democratic voters out of Maryland and Virginia and putting them into the new state, it would make the Republicans once again competitive at the state level, risking the election of Republican senators from both Maryland and Virginia. (No, I don't think Larry Hogan can win a Senate seat from Maryland.)

[F.D. Wolf]

The Twenty-third Amendment provides:

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct [a number of presidential electors equal to the least populous state]

You might notice it says nothing about the method being a popular vote by the residents of D.C., which will always be overwhelmingly Democratic. If Republicans had any sense or political acumen, which, of course, they do not, they would work to adopt another method, assuming they do not wish to automatically award the Democrats three electoral votes every presidential election. I might suggest, for example, allowing the President, the Senate, and the House to each appoint one elector.

[Mr. Bumble]

For purposes of Congressional representation only include it with MD.

[Rev. Arthur L. Kirkland]

I suggest you prepare for replacement (and failure of your political preferences).

[bernard11]

assuming they do not wish to automatically award the Democrats three electoral votes every presidential election. I might suggest, for example, allowing the President, the Senate, and the House to each appoint one elector.

You mean, assuming they do not want the voters in DC to have a say in Presidential elections, unlike those in Vermont and Wyoming.

[F.D. Wolf]

Indeed, unlike Vermont and Wyoming, which are states, not federal districts.

The 23d Amendment is an abomination, contrary to the design and purpose of the Constitution, but as long as we're stuck with it, we might as well use it.

DC has the highest per capita income in the country, so it would seem its interests are being represented quite sufficiently by the federal government.

[ReaderY]

Amendments, by definition, change the Constitution’s design and purpose. It’s on the books. Unless you can get people to repeal it, it’s on the books.

[F.D. Wolf]

Yes, Prohibition and lowering the voting age radically altered the fundamental design of the Constitution.

[JoeFromtheBronx]

The 26A provided a mild tweak to voting requirements.

Not much of a "radical" change, especially after multiple amendments changed voting requirements to a much greater degree.

Prohibition was a much greater change to what used to be a local concern.

The D.C. amendment also was a tweak. The district's population was now high enough, especially with other changes that made the voting requirements more democratic, to warrant some representation. It amounts to three votes of 538.

It was not some major change in the constitutional system. If some amendment tweaks things to give the territories more representation without statehood, it also would not be a radical change.

[Seamus]

"Prohibition was a much greater change to what used to be a local concern."

Nowadays, we wouldn't bother with a constitutional amendment, but would just claim we were regulating "interstate commerce."

[David Nieporent]

The 23d Amendment is an abomination, contrary to the design and purpose of the Constitution,

Hence the "amendment."

[Mr. Bumble]

Doesn't make it less of an abomination. Prohibition was the result of an amendment (and an abomination) but was repealed by amendment and so should the 23rd be. As I said above, add the DC population to MD for purposes of representation only.

[NvEric]

Right. Include them with MD. This should have been addressed in the 15th A. Voting was not given, at the start, because of slavery.

[ReaderY]

No difference. The legislatures of Wyoming and Vermont are equally free to appoint the electors themselves if they want; involving ordinary voters in deciding who the President should be is, in every state, simply a revokable act of legislative grace; voters are involved or not at state legislatures’ pleasure. The 23rd Amendment simply put Congress, as DC’s constitutional legislature, in the same position as a state legislature.

[F.D. Wolf]

So, the "state" legislature is also the federal legislature. Well, I certainly don't see any issues there. Also, it's the only "state" which can move itself, thousands of miles if it so chooses, taking its electoral votes with it. Alas, Wyoming and Vermont do not have that option.

[bernard11]

Well, yes, ReaderY. I did overlook that point.

I will say, though, that I think that having the state legislatures pick the electors is a remarkably bad idea. The possibility that some legislature might do this is yet another flaw in the whole EC structure.

[NvEric]

Another flaw ?
No matter what is, others see flaws. You re-write the US Const. and there will be flaws too. Flaws are just features some don't want.

[Seamus]

"The legislatures of Wyoming and Vermont are equally free to appoint the electors themselves if they want . . . ."

Sure, if they’re willing to have the their House of Representatives delegation pretty much eliminated pursuant to Section 2 of the 14th Amendment. (“[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States . . . is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation [in the House of Representatives] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”)

[JoeFromtheBronx]

Bigelow v. Virginia is an important precedent regarding the limits of states to address actions that occur out of state.

The allotment of the minimum number of electoral votes to D.C. was like the barrier to poll taxes for federal elections a limited compromise measure.

More was proposed. More should be provided. For instance, a voting representative in the House would have been an appropriate provision for the amendment. Home rule would be appropriate too, perhaps with a supermajority override to address special cases with national significance.

I think D.C. statehood is also just. Nonethless, I am open to a compromise. And, the people of D.C. and Maryland do not seem to want the populated areas of D.C. to be represented by Maryland. That "solution" is of limited value.

[Dan Schiavetta]

I wonder if the issue of representation was brought up when D.C. was created. My guess is that it was deliberately avoided due to three-fifths rule implications.

[JoeFromtheBronx]

The majority and dissenting opinions in a lower court case (summarily affirmed by SCOTUS) regarding D.C. representation provide some interesting analysis of the history:

https://law.justia.com/cases/federal/district-courts/FSupp2/90/35/2478923/

The 3/5 Compromise would only be a significant concern if D.C. became a state. The population in antebellum times was too small for that to be realistically possible.

[Dan Schiavetta]

Thanks

[SMP0328]

The Three-Fifths Clause was repealed by Section 2 of the 14th Amendment, regardless of DC's status.