STATE DRIVER’S LICENSES AND IDENTIFICATION CARDS FOR UNDOCUMENTED IMMIGRANTS: WHAT IS THE REACH AND THE SCOPE OF THE FEDERAL GOVERNMENT’S POWER TO STEP IN?


Posted By: Amanda Paige Garrey, Amber Fogel, Stephanie Fisher, Jennifer Gulbin, Dan Granados, and Todd Evans

Picture2Introduction

Throughout the history of the United States, the scope of congressional power and whether or not certain acts of Congress infringe on the rights of the States has been widely and hotly debated. Article I, Section 8 of the Constitution enumerates the powers granted to Congress. Clause 18 of Article I, Section 8 is known as the Necessary and Proper Clause, and states that Congress has to power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Tenth Amendment  provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Recently, there have been a number of states and cities issuing driver’s licenses and other forms of identification to undocumented, undocumented immigrants. As illustrated in the graphic, some of the most notable states issuing these driver’s licenses include New York City, California, and Illinois. Given the current political climate, it is not inconceivable that the federal government may attempt to regulate the States involved in these activities. Therefore, this blog post will examine the reach and the scope of Congress’ and the President’s power to control these activities. First, we will analyze whether the Constitution grants Congress legislative authority over this activity, such as legislation prohibiting these States from issuing driver’s licenses or other forms of identification to undocumented immigrants and compelling States to provide them with the records previously generated by their programs to deport the undocumented immigrants. In analyzing Congress’s power to enact such legislation under the Constitution, we focused specifically on the Commerce Clause (Clause 3), the Naturalization Clause (Clause 4), and the Necessary and Proper Clause (Clause 18), and the Supreme Court’s interpretations thereof and determined that Congress would have the power to enact this legislation. Next, we analyzed whether this legislation would be prohibited by Tenth Amendment principles of federalism. We determined that the legislation prohibiting the States from issuing the driver’s licenses would not violate the Tenth Amendment, however the legislation compelling the records previously generated from these programs would be prohibited under the Tenth Amendment principles of federalism and the Anti-Commandeering Doctrine. Continue reading “STATE DRIVER’S LICENSES AND IDENTIFICATION CARDS FOR UNDOCUMENTED IMMIGRANTS: WHAT IS THE REACH AND THE SCOPE OF THE FEDERAL GOVERNMENT’S POWER TO STEP IN?”

STATE DRIVER’S LICENSES AND IDENTIFICATION CARDS FOR UNDOCUMENTED IMMIGRANTS: WHAT IS THE REACH AND THE SCOPE OF THE FEDERAL GOVERNMENT’S POWER TO STEP IN?

GERRYMANDERING: ARE WE “STANDING” UP TO IT?

Posted By: Micah Brierley, Mike Boehringer, Virginia Bosio, Lindsey Bulloch, Carlee Bliss, Philip Coelho

6211660601_6dfb6d0066_bIntroduction

Access to equal voting rights continues to be a substantial problem in elections. Gerrymandering, the process of redistricting lines to minimize the impact of an individual’s vote, has been a highly contested issue since its first application in 1812. With the continued dilution of individuals’ voting rights, it is important for members of the public to understand when they can sue in court over redistricting issues. An important requirement for individuals to sue is standing. Is there a real, differentiated harm against an identifiable person or group that can be resolved in court? Individuals do have standing to sue when redistricting results in grossly unequal divisions of population or when the redistricting is based on racial discrimination. In contrast, individuals do not have standing to sue when redistricting results from political gerrymandering. In explaining this distinction, this blog post analyzes: how gerrymandering works, a brief history of gerrymandering, an analysis of which parties engages in gerrymandering more, a short explanation of judicial standing, the lack of judicial standing within political gerrymandering claims, a description of racial gerrymandering, and the differences in standing between political and racial gerrymandering claims. The blog then ends with a short look into the future of gerrymandering. Continue reading “GERRYMANDERING: ARE WE “STANDING” UP TO IT?”

GERRYMANDERING: ARE WE “STANDING” UP TO IT?

The Supreme Court should NOT have decided Bush v. Gore. Did it matter for who became our President? Does it matter for our future?

Posted By: Nancy Craig, Christopher Dan, DesiRae Deschine, Torey Dolan, Chance East, and Richard Edwards

USSC_justice_group_photo-2005_currentThe 2000 presidential election was hotly contested and controversial.  In a result similar to what happened in our most recent presidential election, the candidate who ultimately became President of the United States did not receive the majority of votes cast.  According to the Federal Election Commission’s website, Al Gore received 50,999,897 votes to George W. Bush’s 50,456,002.  Those who are not familiar with the Electoral College might see those vote totals and conclude Al Gore won the election.  In fact, George W. Bush won the election and went on to serve eight years as President.  The story of how that happened involves the Electoral College, the State of Florida, and our nation’s highest court. Continue reading “The Supreme Court should NOT have decided Bush v. Gore. Did it matter for who became our President? Does it matter for our future?”

The Supreme Court should NOT have decided Bush v. Gore. Did it matter for who became our President? Does it matter for our future?

Magistrate Judges: Efficient or Just Plain Unconstitutional?

Posted by: Elise Adams, Kaitlyn Ayers, Lyndsey Adkins, Donna Berlinski and Haia Abdel

Picture1A magistrate judge is an Article I officer with the jurisdiction to preside over criminal misdemeanor trials and civil jury and nonjury trials with the consent of the parties. Magistrate judges exercise many of the same powers as federal district judges; they decide motions, hear evidence, instruct juries, and render final decisions in civil and criminal cases. The constitutionality of the Federal Magistrate Act of 1979 has been called into question as some see the statute as an issue of the separation of powers because it creates a class of judges that have virtually the same power as Article III judges without the independence protections that these judges enjoy. Magistrate judges do not enjoy lifetime tenure (they instead serve four-to-eight year terms) and Congress may reduce their salaries (currently set at a maximum of 92% of that of district judges) simply by amending the Act. While judicial independence is crucial to the constitutionality of Article III judges, magistrate judges are constitutional entities despite their lack of Article III independence. The oversight by Article III judges and the consent of the parties to have their case heard by a magistrate judge has led courts to ultimately uphold the constitutionality of magistrate judges. Twelve of the thirteen federal appellate courts have upheld the constitutionality of §636(c) of the Federal Magistrates Act of 1979 (the Tenth Circuit has not yet ruled on this issue). Continue reading “Magistrate Judges: Efficient or Just Plain Unconstitutional?”

Magistrate Judges: Efficient or Just Plain Unconstitutional?

Jumping the Gun: Do State Weapon Laws Violate the Constitution?

Posted By:  Maddalena Savary, Danielle Ser, Wade Simpson, Zach Stevens, Shayna Stewart, Jimmy St. Clair, and Tim Taylor

assault weapons banLiving in America means living with mass shootings. Between 1989 and 1994, California experienced two tragic mass shootings: the Cleveland Elementary School Shooting and the 101 California Street Shooting. Both shootings had two things in common; white men precipitated both massacres, and both used assault weapons to murder more than five people. In response, Senator Dianne Feinstein proposed legislation that restricted “semiautomatic assault weapon” possession in America. After some changes, Congress passed the “Public Safety and Recreational Firearms Use Protection Act,” commonly known as the “Federal Assault Weapons Ban,” as a subsection to the “Violent Crime Control and Law Enforcement Act of 1994.”

Federal and state governments define assault weapons (not limited to rifles or pistols) as any firearm fitting certain characteristics. These characteristics include semi-automatic firing modes, large-capacity magazines, pistol grips, flash suppressors or silencers, bayonets, and folding or telescoping stocks. “Semi-automatic” means the firearm automatically chambers a new round each time the shooter pulls the trigger. Magazines are devices that feed bullets into the firearm; a large-capacity magazine allows the shooter to fire more rounds before having to insert a new magazine into the firearm. Both rifles and pistols have the ability to be equipped with large-capacity magazines (usually defined as more than 10 rounds).

Under the Federal Assault Weapons Ban of 1994, “no person shall manufacture, transfer, or possess a semiautomatic assault weapon.” Among the weapons banned were 19 assault weapons and some high-capacity ammunition magazines of ten or more rounds. The ban did not extend, however, to people who lawfully possessed the weapons covered under the ban. The ban also contained a “sunset provision” that set the ban to expire in 2004 if Congress did not renew it. In 2004, the Republican-controlled Congress declined to renew the weapons ban.

Since the ban’s expiration, several other mass shootings have taken place across America, among them the recent San Bernardino shooting that claimed the lives of 14 people. The increased awareness of these mass shootings have sparked renewed public concern about the legality of stricter gun control laws.

In the absence of national legislation banning assault weapons, numerous states, cities, and counties have enacted weapon regulations. However, some of these state and local restrictions have sparked constitutional concerns relating to the Commerce Clause and the Second Amendment. State weapon regulation is likely permissible where a state rightly navigates these two constitutional concerns. Therefore, this blog post addresses how states may regulate assault weapons without violating either the Commerce Clause or the Second Amendment. Continue reading “Jumping the Gun: Do State Weapon Laws Violate the Constitution?”

Jumping the Gun: Do State Weapon Laws Violate the Constitution?

Nothing New Under the Sun: Can Arizona Opt Out of Federal Legislation?

Posted By: Cynthia Thomas, John Thorpe, Alexis Tinucci, Lucille Tournas, Matthew VanBeschoten, Allison Venezia, Staten Vermeer, and Cody Wahlers

Arizona_Capitol_Museum_2014Introduction

Arizona voters recently passed a measure, by an extremely narrow margin, that purports to allow Arizona to opt out of certain federal laws. Is this constitutional? Can a state ever opt out of federal legislation that it deems unconstitutional? Do the states even have the power to evaluate the constitutionality of federal legislation? This article takes an in-depth look at the bill’s history, its foundations in Anglo-American political philosophy, and a series of Supreme Court cases that shed some light on its constitutionality. Continue reading “Nothing New Under the Sun: Can Arizona Opt Out of Federal Legislation?”

Nothing New Under the Sun: Can Arizona Opt Out of Federal Legislation?