Constitutional Law

Paul Clement (left) and John Boehner (right)

The leading law firm of King & Spalding, which came under fire from LGBT rights groups after its defense of the Defense of Marriage Act (DOMA) became public last week, has moved to withdraw from the litigation. The firm cited problems with the vetting process applied to the engagement.

And Paul Clement, the former U.S. Solicitor General and King & Spalding partner who was going to spearhead the DOMA defense, is now a former K&S partner. He resigned from K&S this morning, in response to the firm’s withdrawal decision. Clement will continue his representation of the House of Representatives in DOMA litigation from his new home, Bancroft PLLC, the high-powered D.C. boutique founded by a fellow alum of the Bush Department of Justice, Georgetown law professor Viet Dinh.

UPDATE (12:20 PM): We reached out for comment to Professor Dinh, who said: “Paul wins the biggest cases and Bancroft solves the most complex problems. This is a no brainer. We will continue to do what Paul and I love doing most, which is to serve the best interests of our clients.”

Let’s take a look at King & Spalding’s stated justification for dropping the DOMA representation, and at Paul Clement’s resignation letter….

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[A] lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible…. We hope [Paul] Clement loses, but we don’t begrudge him the assignment. Even a lawyer of his skills will find it hard to defend a discriminatory law like DOMA.

– a Los Angeles Times staff editorial, defending former Solicitor General Paul Clement and his law firm, King & Spalding, against criticism of their defense of the Defense of Marriage Act (DOMA).

Paul Clement (left) and John Boehner (right)

They say that everyone is entitled to a lawyer. [FN1] But is everyone entitled to the services of former U.S. Solicitor General Paul Clement, one of our nation’s finest appellate advocates? At a discounted rate, no less?

As we mentioned in yesterday’s Non-Sequiturs, the U.S. House of Representatives has hired Paul Clement and Clement’s law firm, the venerable King & Spalding, to defend the Defense of Marriage Act. DOMA, which essentially bars recognition of same-sex marriages for purposes of federal law, has been struck down in part by various federal courts, and the Obama Administration has decided to stop defending the 1996 law in constitutional challenges.

So the House Republicans have stepped up to the plate to defend DOMA. And they’ve hired some high-powered counsel for the task, namely, Clement and King & Spalding.

The contract between the House and King & Spalding was made public today by the office of House Minority Leader Nancy Pelosi (after Speaker John Boehner declined to release it). The agreement contains some interesting tidbits, including the hourly rate the House will be paying, as well as a cap (although an adjustable one) on the fees to be paid to K&S.

Let’s take a look, shall we?

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Egyptian President Hosni Mubarak has finally decided to step down. We should all be thankful that this has been a relatively “bloodless” coup. We should all take notice of a middle eastern regime change that didn’t require the use of American armed forces. We should all wish the people of Egypt the best of luck as they forge ahead into their uncertain future. And we should all pray that in the end Egypt continues on its moderate path of relating to Israel and the west.

That last part is key. Sure, by the end Mubarak was like the guy who won’t leave your house after the Super Bowl party. We’ve all been there. The people of Egypt tried everything you or I have tried in that situation: “Dude, it’s getting late, I have to work in the morning,” “No, really, I can handle the dishes by myself,” “Seriously brah, if you’re here when my wife wakes up she’s going to be pissed.”

But despite his inability to take a hint, Mubarak was still our friend. There’s no guarantee that the next guy will be.

In fact, who is the next guy? We know that Vice President Omar Suleiman is technically in charge now. And many suspect that actually there is a general with a gun who is really in charge. But who is supposed to be in charge? (This is starting to sound like Howrey.)

Seems to me, once God stopped “anointing” people, He created lawyers to answer just this kind of a question…

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Well this should be fun. Florida federal judge Roger Vinson has struck down the heart of Obama’s health care reform plan, finding that the individual mandate part of the bill is unconstitutional and therefore the whole thing is unconstitutional.

As Ashby Jones points out on the WSJ Law Blog, that makes the score 2 – 2. Two federal judges have upheld the law; two others have struck it down.

You know what that means? It means that very soon America will be operating under the Anthony M. Kennedy health care system. Does Justice Kennedy think that I have a right to health care? Does he think that pre-existing conditions should be covered? Is he comfortable having an entire nation’s health care system held hostage by a few insurance giants?

Exciting questions! I can’t wait to see how a man who nobody elected will decide our medical futures….

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Do we really need to make it easier for people to have weapons on school campuses? Really? We’re not worried about school shootings anymore? Is the Second Amendment really so broad that it requires us to allow students to weaponize their law school dorm rooms? Is there no “safe zone” in America where I can go and be reasonably assured of not being hit with an unintended, stray, accidental bullet fired from a hand cannon a man was legally allowed to possess just because George Washington needed some well-armed farmers to defeat the British?

According Idaho Law 2L Aaron Tribble, his right to have a firearm in his dorm room trumps his classmates’ rights to not have to live on campus with potentially crazy gunmen in legal possession of weapons. Tribble has filed suit against the University of Idaho over its policy that bans guns on campus.

He claims that the rule violates his Second and Fourteenth Amendment rights to possess a gun in his on-campus home…

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I’m not a constitutional scholar, and I didn’t stay at a Holiday Inn last night. But I really struggle to find the ambiguity in this line from the Fourteenth Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

That statement seems very, very clear to me.

Of course, I’m not an unabashed racist. Maybe if I was I’d be able to be as intellectually dishonest and willfully ignorant as State Legislators for Legal Immigration, and have the gall to argue that this section of the 14th Amendment has been misinterpreted for 150 years.

Actually, check that. Even if I woke up in the middle of the night terrified that dirty foreigners were stealing my country, I’d grab a shovel and start digging a moat around this country before I fixed my mouth to argue utter tripe like what we’re hearing from the State Legislators for Legal Immigration.

In a world full of spurious legal arguments, theirs is truly one of the stupidest things you’re ever going to hear…

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PASADENA, CA - MAY 04:  A Blackberry Curve 831...

Should police need a warrant to search this?

As a place to live, California has a lot going for it: the Pacific Ocean, pleasant weather, celeb spottings. But if you’re concerned about the police perusing the contents of your smartphone without a warrant, you might prefer to spend your time further east, in the Buckeye State.

The Supreme Courts of California and Ohio have come down on opposite sides of the question of whether police need a warrant to search an arrested person’s cellphone. California may be perceived as the tech-savvy state, thanks to playing host to Silicon Valley, but when it comes to how the law applies to technology, its analysis is rather simplistic. In an opinion issued Monday, California’s court said “no warrant needed,” equating a cell phone with a pack of cigarettes. Hmmmm. Cell phones are addictive, I suppose…

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Barack Obama: The doctor is... out?

Virginia 1, Obamacare 0. Ian Gershengorn must be pacing up a storm.

Judge Henry E. Hudson (E.D. Va.) just struck down a key provision of President Barack Obama’s signature health care reform law — namely, the requirement that most Americans obtain health insurance. Judge Hudson held that the insurance mandate exceeds Congress’s authority under the Commerce Clause. Links to coverage are collected below; Judge Hudson’s 42-page opinion is available here (PDF, via Dahlia Lithwick).

Congratulations to Virginia and to its crusading attorney general, Ken Cuccinelli (whom I had the pleasure of meeting at Federalist Society festivities a few weeks ago).

Of course, we’re still near the beginning of a long road of litigation — which will likely end at One First Street, two (or more) years from now.

Health Care Law Ruled Unconstitutional [New York Times]
Judge Strikes Down Part of Health Care Law [ABA Journal]
Virginia Federal Judge Shoots Down Part of Health Care Law [WSJ Law Blog]

Hopefully you paid attention during middle school sex-ed, because you’re unlikely to learn about the birds and bees at law school.

According a recently released survey by Law Students for Reproductive Justice, only 18 percent of U.S. law schools have offered reproductive rights law courses over the last seven years. More specifically: there have been 37 separate courses and instructor-led reading groups taught at least once, offered at 32 schools located in 17 different states.

Is that good? As future legislators, jurors, advocates or defenders of reproductive rights, do you think you need formal training in the subject? Or is study of the overarching foundations of our legal system sufficient to allow you to take the next Planned Parenthood case that comes into town — or at least talk intelligently about it at parties?

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