Faculty Blog: Taxation, Tyranny and Constitutional Amendment by Initiative

By: Lawrence Friedman

Tasked in 1779 with drafting a new constitution for Massachusetts, John Adams envisioned a form of government designed not to thwart democracy, but to channel its best impulses and discourage the worst. Adams believed individual liberty would be secure and tyranny held at bay only so long as the great powers of government were separated and each branch appropriately checked. As stated in Article 30 of the Massachusetts Constitution, the goal was a government “of laws and not of men.”

On February 6, the Supreme Judicial Court heard arguments in a case that threatens to undermine Adams’ constitutional vision. In Anderson v. Healey, the court is faced with the question whether a majority of the people can amend the constitution by initiative to impose a tax on a minority of their fellow citizens. The Massachusetts Attorney General is defending the initiative petition as valid under the constitution; if she prevails, the proposal will provide a roadmap for citizens seeking to impose taxes on nearly any group that it can convince a majority of the people should be taxed.

Ratified in 1918, Article 48 of the Massachusetts Constitution permits amendments to the constitution via the initiative process. But it forbids measures that “make a specific appropriation of money from the treasury.” If the people cannot appropriate money, it follows they cannot raise it, either. Article 48, after all, does not purport to alter the legislature’s plenary authority to budget for the Commonwealth’s spending needs, and it would make little sense to allow the legislature to control appropriations but not the revenue stream. Further, Article 48 provides that the legislature has the responsibility to “raise by taxation” the means to fund legal obligations created through an initiative, a provision that would be superfluous if the people could both propose obligations and impose the taxes to pay for them through the initiative process. Continue reading

Faculty Blog: SCOTUS to Hear eCommerce Sales Tax Case

By: Natasha Varyani, Adjunct Professor of Law

The United States Supreme Court is scheduled to hear arguments in the case of South Dakota v. Wayfair, Inc., addressing the issue of when sales tax needs to be collected by online retailers engaged in eCommerce.  In its 1992 decision in Quill v. North Dakota, the Court ruled that a retailer must have a “physical presence” in a state in order to be subject to that jurisdiction’s sales and use tax laws.  The Court in Quill was revisiting its 1967 holding in National Bellas Hess v. Department of Revenue, in which it reviewed the authority of a state to impose its sales and tax laws on an out of state entity doing business in state.

Both Bellas Hess and Quill dealt with retailers that conducted sales through mail order, and their only presence in state was the catalogue of products offered.  The Court in Quill cited “tremendous social, economic, commercial and legal innovations” that had occurred in the twenty-five years that had passed since its holding in Bellas Hess to justify overruling that former holding. 

Twenty-six years have passed since Quill.  In that time, the change in social, economic, and commercial life has been both dramatic and extremely rapid, so it only follows that the law should adapt in response.  The holding in Quill articulated the “physical presence” standard, which demanded that, in order for a state to impose its sales and use tax laws on a retailer, that retailer was required to have a physical presence in state.  Understanding the standard for imposition of sales tax, some retailers, notably Amazon.com, selected jurisdictions for their headquarters and warehouses intentionally to avoid having a physical presence and therefore being subject to sales and use tax laws in high tax jurisdictions.  Though Amazon.com has a business plan that focuses less on state sales tax than it formerly did, online retailers like  Wayfair (the plaintiff in this suit), Overstock.com, and NewEgg have benefitted from the physical presence standard set forth in Quill.

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Faculty Blog: The President, the Courts, and National Security

By: Lawrence M. Friedman

Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.”

That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.

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Faculty Blog: The Most Important Qualification for a Post in President Trump’s Cabinet

By: Lawrence M. Friedman and David M. Siegel

As the confirmation process for President Trump’s cabinet comes to a close, it’s worth noting that Senators have failed to question any of the nominees about their understanding of their constitutional responsibilities under the Twenty-Fifth Amendment, much less whether any would be willing to fulfill those responsibilities. That Amendment provides for succession when the President “is unable to discharge the powers and duties of his office”—either when the president declares this inability or when a majority of “principal officers of the executive departments,” together with the vice president, make that determination. It is this latter situation that we should hope the members of President Trump’s cabinet fully appreciate.

This President has insisted, throughout the campaign and into his first weeks in office, on the truth of facts at odds with objective reality—sometimes harmless, and at other times in ways that have antagonized America’s longstanding allies. To their credit, some cabinet nominees have acknowledged, tacitly, their divergence from the Chief Executive on many of these points. But that acknowledgment is just the start: the Constitution charges the members of the cabinet with determining whether the President’s inability to accurately perceive and respond to objective reality poses a threat to our national security. Should they make such a determination, they, together with the Vice President, have a duty to act on that information and trigger the succession provisions of the Twenty-Fifth Amendment.

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Faculty Blog: The Post-9/11 Weight of Korematsu

By: Lawrence M. Friedman and Victor M. Hansen 

Associates of President-elect Donald J. Trump have suggested that the infamous Supreme Court decision upholding the internment of Japanese-Americans during World War II, Korematsu v. United States, could be used to justify measures aimed at tracking and potentially detaining Muslim-Americans and Muslim immigrants. As Professor Noah Feldman has recently noted, the Korematsu decision is widely regarded today as having been wrongly decided and it has been, as Justice Stephen G. Breyer has put it, “discredited.”

But there is another reason why the precedential value of Korematsu has been diminished: its basic premise has been undermined by the Supreme Court’s more recent decisions in Hamdi v. Rumsfeld and Boumediene v. Bush.

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Faculty Blog: Deportation of Undocumented Persons and DACA Beneficiaries Could Crash this Country

By: Dina Francesca Haynes 

President Elect Trump has indicated, in his 100–day plan, that he would, on his first day in office, invalidate all unconstitutional Executive Orders issued by President Obama. Those of us who work in the immigration and constitutional law fields understand this to mean that in January, among other actions, approximately one million young people here pursuant to Executive Action and currently in high school, college, or the military, or who have recently completed one of these, will become deportable. These are the DACA recipients, beneficiaries of Deferred Action for Childhood Arrivals. They are in school with you or your children. They work alongside you. They pay college tuition (they are not eligible for federal financial aid, so they pay a lot of college tuition). Those who applied and were successful received work authorization and a temporary promise from the Obama Administration enabling them to remain in the United States for a short period of time, so that families would not be torn apart and so that children who entered through no fault of their own, many of whom never even knew they were undocumented until they applied to college, were not punished.

If Trump goes through with his promise to invalidate DACA, he has several options, all of which have serious and perhaps unintended economic consequences that are very bad for this country.

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Faculty Blog: Analyzing Race-Based Classifications After Fisher

By: Lawrence M. Friedman 

In his dissenting opinion in Fisher v. University of Texas, Justice Alito argues that the Court indulged the university’s “plea for deference” in the application of strict scrutiny to its race-based affirmative action program. And he’s probably right, too: the scrutiny the majority applied in Fisher seems less strict than the scrutiny the Court historically has given race-based classifications.

But this isn’t to say that the result Alito would have reached—striking down the university’s plan—is also right. For he fails to appreciate that, just as equal protection doctrine protects only individuals who are similarly situated, strict scrutiny applies in the same way only in similarly situated cases. In other words, context matters—and context explains why higher education affirmative action programs may survive judicial review where the governmental use of race in other contexts would not.

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Faculty Blog: SCOTUS’s Use of Exclusionary Rule Becomes A Charade in Utah v. Strieff

By: Victor M. Hansen 

The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application.

Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.

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Faculty Blog: Supreme Court Effectively Upholds Fifth Circuit Judge’s Injunction of DAPA in U.S. v. Texas

By: Dina Francesca Haynes 

Last week, the Supreme Court issued its (non)-decision in Texas v. United States. At issue: whether one judge in Texas could enjoin a federal immigration program crafted by the Executive Branch, and whether the Executive Branch had exceeded its authority in so doing. I wrote about this case earlier this year, predicting a 4-4 split with the current court one justice down. Unfortunately, my prediction was borne out.

The Fifth Circuit—specifically one judge, Judge Andrew S. Hanen (who was recently accused of abuse of discretion when he imposed sanctions on federal government attorneys whose arguments he didn’t like)—had earlier decided that the State of Texas had established a substantial likelihood of success on the merits of their procedural and substantive claims required for an injunction. What is unusual in this case is that a district judge’s preliminary injunction applies nationwide (and not, as would ordinarily be the case, in the judge’s district only).

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Faculty Blog: Utah v. Strieff: The Court Reminds Us That Constitutional Privacy is Essentially Meaningless

By: Lawrence M. Friedman 

The U.S. Constitution prohibits the government from pursuing its policy goals in ways that conflict with individual rights protections—except, as the Supreme Court reminds us in its decision in Utah v. Strieff, where the protection of privacy under the Fourth Amendment is concerned.

The remedy for a Fourth Amendment violation is exclusion of the evidence obtained as a result of an illegal search or seizure. Deterrence of governmental misconduct has been the animating principle of the exclusionary rule for decades (though it was originally just one of several rationales), and the nature of the Court’s cost-benefit deterrence analysis has led it, time and again, to conclude that the costs of suppression outweigh any potentially beneficial deterrent effect. As Justice Clarence Thomas explains in the opening paragraph of his opinion for the majority in Strieff, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”

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