A washingtonpost.com article from: firstname.lastname@example.org
maule at law.villanova.edu
Wed Mar 8 18:57:30 PST 2006
This has been helpful.
So if a state legislature, furious that the Supreme Court does not overrule Roe in all (or any) respects, votes to secede, and authorizes its executive branch to act in accordance with that vote, does the immunity protect the individual legislators from any consequences once the secession is terminated (assuming it is terminated)? Or, for another example, if a legislature votes to do something that constitutes treason, are the legislators off the hook?
Or is the immunity limited to the act of voting but not to subsequent actions, such as taking up arms against the union? In other words, is the bribery exception specific or encompass similar actions?
>>> "Douglas Laycock" <DLaycock at law.utexas.edu> 3/8/2006 9:46:56 PM >>>
The legislators have absolute immunity from any kind of suit, whether for damages, injunctions, declaratory judgments, or criminal prosecutions; violating clearly settled law is no exception. Any lawsuit for a legislative act, whatever the relief sought, would be to "question" them in another place. Eastland v. United States Serviceman's Fund, 421 U.S. 491, 501-03 (1975). For Congress, this would violate the Speech and Debate Clause; for state legislators sued in federal court, it would violate the Court's interpretation of §1983 in Tenney v. Brandhove, 341 U.S. 367 (1951). The immunity also extends to members of city councils. Bogan v. Scott-Harris, 523 U.S. 44 (1998).
The immunity from injunctions may not be absolute in §1983 cases. Compare Spallone v. United States, 493 U.S. 265 (1990) (leaving open the theoretical possibility of last resort contempt sanctions against city council members for refusing to cast a vote they had agreed to cast); with Clarke v. US, 886 F.404 (D.C. Cir. 1989), (holding that ordering city council members to vote for something violates their free speech rights), vacated as moot, 915 F.2d 699 (D.C. Cir. 1990). But I find it impossible to imagine a federal court ordering the SD legislature not to pass the bill.
Taking bribes is outside the scope of the immunity. US v. Brewster, 408 U.S. 501 (1972).
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
From: conlawprof-bounces at lists.ucla.edu on behalf of James Maule
Sent: Wed 3/8/2006 8:06 PM
To: conlawprof at lists.ucla.edu
Subject: Re: A washingtonpost.com article from: s-gerber at onu.edu
I should know the answer but I'm not certain I remember correctly: what
sanctions are faced by legislators who enact a statute that clearly
violates the Constitution as written, with no attempt to finesse a
distinction? None? Protected by immunity? Is the rationale that
sometimes the only opportunity for the Supreme Court to reconsider a
decision is for someone, somewhere to disregard it? But is such a
rationale undercut by the Court's ability to reconsider one of its own
decisions sua sponte? Does permitting legislatures to act in defiance of
Supreme Court decisions, without consequences (other than in the voting
booth) lessen the solemnity of Constitutional amendment (or convention)
as the path to changing a Supreme Court decision? Somehow I'm thinking
there is a lesson in Dred Scott, and the 13th Amendment, but I also
think that analogies break down because states that refused to permit
slavery within their jurisdictions weren't defying the Dred Scott
>>> William Araiza <Bill.Araiza at lls.edu> 3/8/2006 8:48:51 PM >>>
I have a slightly different question about the South Dakota abortion
law, in particular, about the litigation that will surround it. How
would the state go about defending the law in the lower courts? Assume
(which I take to be the case anyway) that the law clearly conflicts
Casey. The Supreme Court can always reconsider its decisions but
the case gets there the lower courts have to weigh in. What do the
state's lower-court briefs say? How do they get to the conclusion,
where they request dismissal of the case, when binding law is, we can
assume, so clearly against them? Do they rehearse the arguments they
would make to the Supreme Court, as to why Casey should be overruled?
Or do they concede that the governing law is against them, but ask for
relief anyway? I've always wondered about this. Any insights would be
Scott Gerber wrote:
>I feel the same way about South Dakota's new abortion law: yes, it is
>arrogant for South Dakota to do what it did and I hope and expect a
>court will declare it unconstitutional with as sharply-worded a slap
>South Dakota as Chief Justice Roberts and his unanimous court
>to the law schools.
>Believe it or not, I'm not an ideologue. And believe it or not, I
>support gay rights (and have done so in print). I simply have no
>for arrogance and elitism. I also care what our brave men and women
>harm's way. They deserve more respect than the Solomon litigation
>Barksdale, Yvette wrote:
>>Do you feel the same way about South Dakota's new abortion law? Are
>>also arrogant under your analysis? They enacted a law, which is
>>unconstitutional under current law, specifically in order to test
>>waters, and try to get the law changed.
>>Although they have not themselves, obviously filed suit, they are
>>clearly contemplating that other people will and this matter will
>>up, they hope, before the Supreme Court.
>>However, at this point, the prevailing wisdom is that there is no
>>that their statute could survive with the current court because
>>are not enough anti-Roe horses on board. There has been some
>>that perhaps Stevens, being elderly, will not outlast Bush, and so
>>therefore there might be another Anti-Roe pick (of course the
>>of this seems slim - since a) Bush was never really strongly favored
>>anti-abortion justice to begin with - see Miers, and any such pick
>>would be so close to 2008 Presidential elections - it is likely
>>Republicans would prefer to leave the matter as an issue in the 2008
>>elections, rather than to give the anti-abortion people what they
>>ahead of time.)
>>Indeed, the South Dakota law, seems to make the a Bush anti-abortion
>>pick even less likely, since the South Dakota law and accompanying
>>lawsuit simply focuses public attention even more on the practical
>>consequences of such an anti-abortion Justice.
>>So, one could argue this is a similar Don Quixote move, this one
>>other people (South Dakota taxpayers) a ton of money in litigation
>>Yet, nevertheless South Dakota is proceeding bravely, on what
>>seem to be moral grounds.
>>Might it be that law professors who joined this lawsuit also were
>>similarly acting on moral grounds, hoping, perhaps against hope,
>>the Court would find some way to hold in their favor.
>>And I am not so sure that it was objectively clear that the lawsuit
>>For example, couldn't the statutory interpretation have carried the
>>had the Court been inclined to use it usual textualist
>>method -After all the statute text requires "equal access" with
>>employers . Here, the law schools also barred private employers with
>>discriminatory employment practices. A plain language analysis would
>>certainly suggest barring military recruiters on the same ground
>>be according "equal access." Instead, the Court concluded, with
>>no supporting analysis, that despite the clear language of the
>>Congress intended "equal " military access to mean "mandatory
>>military access, irregardless of the school's general recruitment
>>Ok fine. Presumably, the Court was of the view that this matter was
>>for the political process to resolve and not for the Courts. But was
>>that result clearly predictable ahead of time?
>>So again, what makes the law profs suit any more arrogant than South
>>Dakota's incitement of pipe dream litigation?
>>Professor Yvette M. Barksdale
>>The John Marshall Law School
>>315 S. Plymouth Ct.
>>Chicago, IL 60604
>>(312) 427-2737 (phone)
>>(312) 427-9974 (fax)
>>From: conlawprof-bounces at lists.ucla.edu
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
>>Sent: Wednesday, March 08, 2006 2:29 PM
>>To: Marty Lederman
>>Cc: conlawprof at lists.ucla.edu
>>Subject: Re: A washingtonpost.com article from: s-gerber at onu.edu
>>With all due respect to Marty Lederman, whose posts I usually find
>>doctrinal gems, I find it difficult to believe that the law
>>who sued the federal gov't "hoped" they would lose.
>>I think Nelson Lund has it almost correct. I think it's more
>>than cynicism that explains why the lawsuit was filed.
>Ohio Northern University
>Ada, OH 45810
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