Standards of Review

The flurry of Supreme Court decisions at the end of the term tackled some of the most contentious social topics in our national dialogue, with much weight given to how the "conservative" or "liberal" justices voted.  Predicting the outcome of a case is nearly impossible, even when taking into account the assumed ideology of the nine Justices.  Recent polls show the high court approval rating at new lows, with only 28% affirming the Supreme Court as doing a "good" or "excellent" job.  Many news pundits are quick to point to a partisan court divided between the conservatives and liberals as the main reason the court's approval rating has tumbled.  The hyper-partisan 5-4 votes are the cases which make headlines, but the reality is over 50% of all cases in the last term were unanimous 9-0 decisions.  These cases are all incredibly important, but the large consensus does not make for high ratings.  While political ideology inevitably affects the Supreme Court decisions in some capacity, there are set legal theories which the nine Justices follow to help them analyze the case based on the law, constitution, and facts. 

One critical legal theory used by the Supreme Court is known as the Standards of Review, and is applied typically in civil litigation linked to the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  As one of the most litigated portions of the U.S. Constitution, it was adopted in 1868 as a response to the Civil War during the efforts of Reconstruction.  Section 1 of the Fourteenth Amendment is what has become referred to as the Equal Protection Clause and Due Process Clause and states:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The three tiered test known as the Standards of Review has been adopted by the Supreme Court as a legal method to look at cases which come before them and deal with the Equal Protection Clause.  Congress often has to pass legislation which deals with the classification the placement of restrictions on certain persons, either purposeful advantage or disadvantage.  An example of this would be citizens who are 20 and not legally allowed to drink alcohol in the U.S., while those who are 21 are permitted to drink.  This is a law which classifies and singles out certain individuals because the government claims there is a compelling government interest which validates the age limit for alcohol consumption.  The drinking age law prohibits anyone under the age of 21 from drinking and places a limit on their freedom.  This is where the Standards of Review comes into play and helps the Justices examine laws to determine if they are legitimate and serve a compelling government interest.  The three standards of review are: 1) Rational Basis - minimum scrutiny, 2) Intermediate Scrutiny - middle-tier scrutiny, and 3) Strict Scrutiny - most narrow level of scrutiny.  Here is a chart that helps break down the levels of scrutiny, and explain the steps the Supreme Court would take in deciding if a law is valid or unconstitutional.

SCRUTINY TESTS AND CATEGORIZATIONS (FOR EQUAL PROTECTION & SUBSTANTIVE DUE PROCESS)
STEP 1. The Supreme Court Justices decide - WHAT IS THE CLASSIFICATION APPLIED?   a) The classification is on the face of the law or b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact
STEP 2. The Supreme Court Justices decide - WHAT IS THE LEVEL OF SCRUTINY?
Strict Scrutiny   Law must be necessary to achieve a compelling government purpose.   SUSPECT CLASSES: ·         Race ·         National Origin ·         Alienage –generally   FUNDAMENTAL RIGHTS: ·         Travel ·         Parenting ·         Marriage ·         Procreation ·         Abortion = undue burden test ·         Voting ·         Gun Ownership ·         Privacy ·         Religion	Intermediate Scrutiny   Law must be substantially related to an important government purpose. (Gender) Government must show exceedingly persuasive justification for the discrimination   CLASSES: ·         Gender ·         Illegitimacy ·         Undocumented Alien Children   NON-FUNDAMENTAL RIGHTS: ·         Right to Refuse Medical Treatment (possibly if related to religion) ·         Homosexual Activity	Rational Basis   Law must be rationally related to a legitimate government interest   NON-SUSPECT CLASSIFICATIONS: ·         Alienage classifications related to self-government and democratic process   ·         Congressional regulation of aliens ·         Age ·         Handicap ·         Wealth/Poverty ·         All other classifications   ALL OTHER NON-FUNDAMENTAL RIGHTS
STEP 3. The Supreme Court Justices decide - DOES THE LAW MEET THE LEVEL OF SCRUTINY?

I hope this chart helps break down the three levels of scruitny that are part of the Standards of Review test.  The Supreme Court is able to apply this legal theory when relevant cases come before them, and allows the Justices to approach a case using the same legal reasoning.  While you will likely hear the 5-4 decisions on the news, legal theories like the level of scrutiny is what helps the court actually have a majority of their opinions unanimous 9-0 decisions!

Bloomberg's Big Gulp Ban Fizzles

As most New Yorkers are aware, Mayor Michael Bloomberg has been fighting to implement a ban on the sale of any cup or bottle of sweetened drinks larger than 16 fluid ounces.  The proposed law is an effort by Bloomberg and New York City to combat the rapid increase of obesity throughout the city, while opponents deride the effort as an encroachment of civil liberties.  On Tuesday, an appeals court upheld a lower court finding that the sugary drink ban was unconstitutional and an overreach in authority by the Mayor and Board of Health.  The appellate judges wrote in a unanimous decision that "Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority".  While the big gulp ban has been found to be unconstitutional, it is important to understand the details of the law and not simply rely on catchy headlines from cable news. 

The Facts: The ban is not a law, rather a regulation passed by New York City's Board of Health and was highly touted by Mayor Michael Bloomberg.  The ban went into effect in March, but litigation from the beverage industry among others brought about a court ordered injunction while the constitutionality of the ban went through the judicial process.  The ban applied to any cup or bottle of sweetened drink larger than 16 fluid ounces BUT there were a significant number of notable exemptions.  The drink ban does not apply to diet-sodas, fruit juices, dairy based drinks, or alcoholic beverages.  The ban also does not apply to grocery or convenience stores. The Board of Health and Mayor Bloomberg said the ban is an effort to combat the out of control obesity epidemic in the city, and the numbers are startling with 60% of New York City adults classified as obese and 40% of NYC school children classified as obese.  Officials and doctors argue, these rapidly rising obesity numbers directly effect all other New Yorkers through rising health care costs and other fees associated with providing care for those individuals.

 

While the obesity numbers are dire, the courts have found that the ban to be unconstitutional because it came from the executive body of the city, a violation of the state principle of separation of powers.  The court found that the Board of Health and Mayor were acting too much like a legislative body through the enactment of sweeping policy change.  They also took issue with the large amount of exemptions saying if it were a legitimate ban it would apply to all public and private enterprises, not only the hand selected ones.  While the drink ban clearly lacks constitutional merit, the court made sure to clarify nothing in the decision was meant to "express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so".   This seems to leave the door open in case the appropriate legislative body took up the issue. 

 

The reality is the Mayor and Board of Health likely overstepped their authority by implementing the sugary drink ban.  The further hurt their cause by allowing numerous loopholes and exemptions, which directly contradict the law.  If a legislative body like the city council took up the issue and implemented a similar ban, they would have a strong claim it is in the best interest of the public based on the rising costs of health care which is being unfairly passed on to other residents.  But the Bloomberg and the Board of Health are part of the executive branch and therefore lack the authority to implement sweeping policy changes, which is the role of the legislature.  I predict the ban in its current form likely will not be allowed by the courts, and agree with the appeals court that the effort is unconstitutional.  As always, please feel free to share your thoughts!

How Separate are Church and State?

One of the most recognizable theories from our country's founding documents is the idea of a separation of church and state.  The notion of a government that protects the liberties of all religions, while also maintaining a neutral position for the country as a whole is one of the most unique aspects of our democratic dialogues.  But where does this ideal originate from?  How accurate is this "separation" today?  Why is this important?  These are key questions often associated with a debate on the separation of church and state, but finding clear answers can prove far more complex than simply checking wikipedia.  

When you hear the phrase "separation of church and state" a natural and common assumption is that our founding father's included this proclamation in the U.S. Constitution, however it may surprise some to learn the phrase does not actually appear in the constitution.  In fact, "God" also does not appear in the Constitution and there are only two references to religion, one prohibits the use of a "religious test" and the other that allows officials to "affirm" rather than "swear" in taking the oath of office.  The reality is, our founders went to great lengths to avoid religious references, even though many were devote men of faith themselves. The idea of a separation between the state and the church does go back to the writing of our constitution and hinges on two clauses from the First Amendment, the Establishment Clause and the Free Exercise Clause.  Let's look at what the First Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Establishment Clause is the first portion which states, "Congress shall make no law respecting an establishment of religion".  At a minimum, the Establishment Clause was intended to prevent the federal government from declaring or financially supporting a national religion, which was common in many other countries at the time.  What is less clear is whether or not the Establishment Clause was intended to also prohibit the federal government from supporting Christianity in general.  Those who favor a narrow interpretation point to the fact that the first Congress opened with a prayer, while those favoring a more broad interpretation point to the writings of Thomas Jefferson and James Madison who were the earliest proponents for a "wall of separation" between church and state.  It was Thomas Jefferson who first openly wrote and discussed a "wall of separation between church and state" when he issued a "condemnation of the alliance of church and state" in a letter to the Danbury Baptist Association in 1802. 

The Free Exercise Clause is more straight forward and refers to the idea that Congress shall make no law "Prohibiting the free exercise thereof".  While the two clauses were obviously intended to serve a similar purpose, there are inherent differences about the two meanings which can lead to tension.  For example, some might view providing a military chaplain to troops overseas as a violation of the Establishment Clause, while others might claim not providing a chaplain a violation of the Free Exercise Clause.  This tension between the two clauses exists to this day, however there are several Supreme Court decisions that have helped define the separation of church and state.

Everson v. Board of Education (1947) - The Supreme Court did not begin their interpretation of the Establishment Clause until 1947 in their 5-4 Everson v. Board of Education ruling.  At issue was a New Jersey law which allowed parents to be reimbursed for the costs of busing their children to public and parochial (mostly catholic) schools.  The Supreme Court held 5-4 that the New Jersey law was not a violation of the First Amendment's Establishment Clause because the statute required the state to reimburse the parents.  The reason this case is one of the most important regarding the separation of church and state, is because of the extensive discussion on the Establishment Clause.  While the court was divided in their ruling, the justices unanimously agreed and laid forth the court's belief that the Establishment Clause goes much further than simply prohibiting the federal government from establishing a religion.  In fact, Justice Black and referenced Thomas Jefferson's letter to the Danbury Baptist Association and the "wall of separation" as a fundamental aspect of the Establishment Clause and the constitution.  Although the justices were split in their decision regarding the New Jersey law, they unanimously agreed the constitution outlined an inherent separation of church and state which cannot be abridged.  The length and depth of their discussion of the Establishment Clause was a unique deviation the court had really never taken before.  Also notable was that the justices also explained that if the state had tried to reimburse the parochial schools they would have unanimously found the law unconstitutional.  This case is viewed as an early foundation for the legal theory of a barrier between the church and federal government.

~ Subsequent Supreme Court rulings have established that the wall of separation is flexible with the outcome often hinging on nuanced details of the specific case. 

McCollum v. Board of Education (1948) - The high court proved that the details of each case and situation are critical when determining the constitutionality of a legal challenge based on the Establishment Clause.  In a 8-1 decision the Supreme Court found unconstitutional the practice of inviting religious instructors into public school classrooms to provide optional instruction.  The issue was not the teachings or religious instructors themselves, rather the court held the use of tax-supported property for religious instruction and the close relationship between school authorities and a religious council violated the Establishment Clause.  The justices held that since students were legally required to attend school and the religious classes applied to their required curriculum, the Champagne Illinois system was "beyond question a utilization of the tax-established and tax-supported public school system to aid religious groups and to spread the faith".

Engel v. Vitale (1962) - This is perhaps one of the most famous cases pertaining to the separation of church and state, and is still debated to this day.  At issue was a New York State requirement for public school classrooms to begin each day with the voluntary reading of a nondenominational prayer. In a 6-1 ruling the court held neither the "nondenominational" nor "voluntary" aspect of the prayer saves it from unconstitutionality.  This was one of the first cases where the Establishment Clause was applied to remove religious activities from public schools and other government related forums. 

While I have outlined some early critical Supreme Court cases and interpretations, it is important to note that the debate over a separation of church and state is not limited to the courtroom.  There has always been a vigorous dialogue from politicians, citizens, and throughout the public sphere.  Here is then Senator Kennedy giving a speech during his presidential campaign which addresses concerns with his Catholic faith, but he also provides his opinion on the theory of a separation between church and state.

 

 

JFK's speech was a landmark moment for presidential candidates, and illustrates the connection faith has always had with our elected officials.  However, many viewed Kennedy's speech in a negative light and continue to argue against his articulated opinion on the separation of church and state.

 



 

While I have provided a recap on how Thomas Jefferson's "wall of separation" and the Establishment Clause were historically interpreted by the Supreme Court, I wanted to lastly provide two more recent cases which illustrate the ongoing discussion on how exactly this ideal should be applied to the country as a whole.   

 

McCreary County v. ACLU (2005) - The ACLU sued three Kentucky counties in federal court for displaying the Ten Commandments in courthouses and public schools.  The ACLU argued that the Ten Commandments on display violates the Establishment Clause of the First Amendment, while McCreary County argued the commandments display was part of a presentation on the "Foundations of American Law".  The Supreme Court ruled 5-4 it was unconstitutional for the Kentucky counties to erect the Ten Commandments in courthouses and public schools because any observer would be under the assumption the government was endorsing religion.  The court held that displaying the Ten Commandments in isolation, displaying them with other passages, and displaying them as part of the "Foundations of American Law" presentation were all unconstitutional.  The court even explained that the courthouse exhibit was merely an effort where the county reached "for any way to keep a religious document on the walls of courthouses".  The justices found that the erection of the Ten Commandments by the county in courthouses and public schools was a form of endorsement and therefore void and unconstitutional.

 

Van Orden v. Perry (2005) - In the very same term the Supreme Court struck down three Kentucky counties which erected the Ten Commandments in courthouses and public schools, a Ten Commandment monument donated and placed by a private organization on the grounds of the Texas capitol was allowed to stay.  In a 5-4 ruling, the justices found that the private donation and erection of the stone Ten Commandment monument was not a violation of the Establishment Clause because it was a private gift and was erected privately with numerous other historical monuments.  Unlike the Kentucky case, the court found that no observer would assume there was a government endorsement of religion.  As I mentioned earlier, the "wall of separation" has been interpreted to be flexible and the outcome of a case will most likely hinge on the very specific details.

 

Hopefully these Supreme Court cases illustrate the history of the separation between church and state doctrine, while alos highlighting the debate that continues today.  This topic evokes many passions and emotions, but it is important to look at it with the legal ramifications in mind.  I would love to hear anyone's opinion on this topic in case you want to share!

 







Voting Rights - Round 2

In the wake of last month's Supreme Court decision to strike down a key provision of the 1965 Voting Rights Act, the Justice Department and the federal government are making known their revamped approach to combating discrimination and unlawful hinderances in the realm of election voting.  At the time of the high court's 5-4 ruling I wrote a post outlining what the Voting Rights Act of 1965 actually was, but now I want to provide a few updates on the current landscape.  

On June 25, the Supreme Court struck down section 4(b) as unconstitutional, instructing Congress to determine a new formula for pre-clearance.  As I discussed in my earlier post, section 4(b) of the Voting Rights Act is the provision of the law which determined what states and districts needed to obtain a clearance with the Justice Department before changing their election laws.  The clearance formula was defined as those districts which had voting tests in place in November 1964 and had less than 50% turnout in that years presidential election.  Although, if a district or state was able to prove there had been no cases of voter discrimination for ten years, they would be allowed to apply for pre-clearance removal.  It is important to note that while the Supreme Court threw out section 4(b), they upheld section 5, which declares states as determined by a Congressional formula must obtain clearance from the Justice Department when seeking to change any voting law or ordinance.  So while the high court removed a key part of the Voting Rights Act of 1965, they upheld the framework and left it up to Congress to develop a new way in determining which states will be subjected to pre-clearance.

The New Front:  While the country waits for Congress to determine a new formula to apply section 5 of the Voting Rights Act, the Justice Department is taking steps to continue the fight against voter discrimination.  While many might suggest voter discrimination and disenfranchisement is a thing of the past, the facts tell a different story.  In the past few years several states have passed sweeping new voter ID laws and state-wide redistricting, which many have argued unfairly affect minorities, the youth, and the poor.  Section 4(b) allowed the Justice Department to take a closer look and slow down many of these laws passing through the state legislatures, however, with the Supreme Court's ruling all of the previously covered districts were suddenly free from all of the law's requirements.  In fact, the state of Texas took only two hours after the Supreme Court ruling to announce they were implementing their new strict voter ID law and redistricting map.  The high court's ruling means the Justice Department would have to take new steps in order to apply section 5 and fight to protect the rights of at risk voters.  

Last Thursday, the Justice Department filed a "statement of interest" on a current suit in a federal court in San Antonio, asking the court to impose a ten year mandate of pre-clearance for any voting law change for the state of Texas.  The Justice Department claimed in their filing that in Texas, there is a history of "pervasive voting-related discrimination against racial minorities", and the state should be required to get clearance for any voting law changes.  The federal court in San Antonio will issue their ruling soon and we will have a better understanding of how the Justice Department can enforce the remaining sections of the Voting Rights Act.  Numerous other states have attempted to implement similar redistricting and voter ID laws, while the DOJ has vowed to take the fight to those individual states just as they have done in Texas.      

Immigration: The Front Lines

Another summer headline dominating the cable news cycle  has been the effort in Washington, D.C. to reform our nation's inept immigration system.  The topic of immigration has generally been a hot-button social issue, but there are enormous legal implications at play as well.  Our country is a nation of immigrants, yet the topic stokes understandable tensions, passions, and opinions.  I wanted to write a post focusing on the current legal aspect of the immigration reform battle taking place across the country.  

The U.S. constitution delegates exclusive authority to the federal government to control relations with foreign nations, therefore, the courts have consistently ruled the federal government has absolute power with regard to immigration policy and enforcement.  In the past several years, a constitutional battle has emerged between state laws aimed at implementing their own immigration policy versus the exclusive authority of the federal government to regulate immigration policy.  

S.B. 1070:  While the tension between state and federal authority in the realm of immigration has long been an area of contention in our country, the effort by Arizona to pass S.B. 1070, a strict law which made it a state crime not to carry immigration papers among other measures, reignited the discussion of immigration reform across the country.   Currently, federal law requires all aliens over the age of 14 who remain in the United States for more than 30 days to register with the federal government and to carry their registration documents on them at all times; failure to do so is federal misdemeanor crime.  The Arizona law additionally made the failure to carry documents a state crime, while also allowing law enforcement officials to determine a person's immigration status during a lawful stop, detention, or arrest.  The Arizona law also allowed for the police to arrest an individual based on "reasonable suspicion" the person may be in the country illegally and had committed a crime that was punishable with deportation.  The law also made it a crime for illegal immigrants to work or apply for jobs in the state and allowed the police to check an individual's immigration status with any legal contact, which could be as simple as walking past someone on the sidewalk.  The provisions of the Arizona law sparked numerous protests across Arizona and throughout the country, with the primary concern being how a police officer would determine "reasonable suspicion" of someone being of illegal immigration status without resorting to racial profiling or other discriminatory tactics.

The Supreme Court ruled in 2012 to strike down 3 of the 4 provisions of the Arizona law, citing the federal government's absolute authority over immigration policy across the country.  The court also used the Arizona ruling as a direct warning to other states attempting to enact strict illegal immigration laws, saying their attempts will meet the same fate of the Arizona law.  The Justices also rejected Arizona's claim that their law was an attempt to help the federal government.  The provision the court allowed to stand, the section allowing police officers to check a person's immigration status during a lawful stop or detention, was only upheld because it had not yet gone into effect and therefore the court could not rule on something that was not yet in existence.  However, the majority had a stark warning for that provision as well, indicating a likely court challenge will come before them again with possibly similar outcomes. 

The Court's Warning:  When the Supreme Court struck down most of the Arizona law, they issued a direct warning to other states attempting to impose similar immigration laws: their laws will be voided as well.  Several states apparently did not heed the high court's warning and a string of judicial defeats have proven the Supreme Court right.  The single and primary reason state immigration laws are found to be invalid is because according to the U.S. Constitution, the federal government has the exclusive authority and jurisdiction as it pertains to immigration policy.  Arguments that the federal government is not doing its job or the laws are too weak may have merit, but legally the states cannot assume a power that has already been enumerated to the federal government and they will lose this legal battle every single time.

Monday, July 22:  The Fifth U.S. Circuit  Court of Appeals in New Orleans struck down an ordinance of a Dallas, Texas suburb that sought to bar landlords from renting to immigrants living in the U.S. without documentation.  Farmers Branch, Texas passed the ordinance in 2006, citing an unwelcome influx of undocumented immigrants, but court fees and legal battles since then have cost upward of $6 million dollars with some residents wondering if the fight is worth it.  The ruling by the court of appeals struck down the Texas suburb's ordinance, with the judges citing the Supreme Court's rationale that the law would infringe on the federal government's exclusive authority to dictate immigration policy.  The appeals court additionally raised concern as to how the ordinance would be enforced and upheld. 

Tuesday, July 23:  The Fourth U.S. District Court of Appeals in Virginia struck down a South Carolina law that would have made it a crime for illegal immigrants to "shelter" themselves from detection and a crime for anyone participating in the sheltering.  The Fourth U.S. District Court of Appeals ruled the South Carolina law was pre-empted by federal law and was therefore unconstitutional.  The court also expressed concern as to how the law would have been enforced and carried out. 

Friday, July 26:  The Third U.S. Circuit Court of Appeals in Philadelphia struck down a small Pennsylvania town's ordinance that would have denied permits to businesses that hire people in the country illegally and fined landlords who rent to them.  Like the previous cases, the Third U.S. Circuit of Appeals found the Pennsylvania town's law was pre-empted by federal immigration law and raised issue with how the ordinance would have been enforced.

There is a clear pattern at work in all of these cases and the Supreme Court gave warning to the states when they ruled on S.B. 1070.  Federal authority with regard to immigration policy will always usurp state attempts to regulate immigration.  I fully understand the concerns with those who believe states should have the right to govern themselves, however, we are a nation of laws and according the the Constitution the federal government's authority as it pertains to immigration is exclusive.  States are free to continue writing their own immigration laws, but they will undoubtedly meet the same fate as the cases above.  As always, if you have any comments or opinions please feel free to share!

The Game Changer

Deciding to go to law school, a career as an attorney, and all that goes into working in the field of law can be a complex and difficult process for some.  For others, the decision to be an attorney was always second nature and they knew from their freshman year as an undergraduate they were destined to take the bar and be a lawyer.  In previous posts I have discussed the perils of student loans and interviewed a current attorney about the changes within the industry, however, my decision to go to law school was not really a conventional path, but it is a story I wanted to share.

Early in my collegiate career I had the opportunity to intern for a Congressman in Washington, D.C., and work in the exciting atmosphere of our nation's capitol.  At the time, I was extremely interested in politics and government, and set my sights on law school in hopes of returning to Washington one day soon.  I loved everything about the D.C. and the rich sense of history invoked a passion and drive to one day contribute to my government, that is, until I actually stepped foot on Capitol Hill.  I was young and naive, but my eyes were quickly opened to the reality of the methods of our elected officials.  When I arrived in Washington for my internship I already had my heart set on law school, but my reasoning was based around the strong desire to make a life and career working for my government.  While I wasn't necessarily driven to become a politician, I thought a career in a government agency, the Justice Department, or with a private firm would be my chosen course.  My first few days were a whirlwind of excitement, intrigue, and passion, yet this fire would soon be extinguished.

I saw law school as my ticket to a career and life in Washington, D.C., and even found myself daydreaming about the future as I walked to work those first few days.  I showed up with an energy to absorb as much as possible, participate as much as possible, and lay a foundation for my future.  However, it did not take long for the reality to sink in.  The public, interns, and anyone with interest is able to sit in on congressional hearings which are constantly in progress on a wide range of topics.  One Monday morning I got a ticket to sit in on a transportation hearing, and I know to many it sounds mundane and far from interesting, but I was filled with excitement to see a real hearing and the constitution at work!  Instead of a bustling and energetic debate, what I saw caused the first crack in my foundation of hope in our government and drive for law school.  Not a single congressman from either party even bothered to show up, instead they left the individuals testifying to speak to a semi-circle of empty seats.  I kept waiting for the members to show up at any moment, so I sat there for nearly two hours as transportation experts, scientists, and community leaders testified to empty chairs.

Now my naivety had not fully been exposed or accepted by my logical mind, so I set myself up for additional heartbreak. I remember walking home to my rented room and justifying the zero attendance by telling myself, "Oh a major meeting must have come up" or "Perhaps a national security issue was going on simultaneously", along with a flurry of other excuses all in an effort to keep my passion untarnished.  I had already based my decision to attend law school on my innate passion for the system of government set up by the founding fathers.  To have my faith broken would leave my basis for law school shattered.  The very same week, I waited in line to be one of a few hundred citizens to receive tickets to watch the House of Representatives vote on a number of bills before a week-long recess.  While my disappointment in the empty hearing meeting was still fresh, the excitement of witnessing our elected officials vote on tangible bills was going to be more than enough to reinvigorate my passion.  As the procedural technicalities began, I wondered when the congressional members were going to file in for voting and debate.  After a little while, a lone congressman came through a backdoor and walked up to the podium.  As he was officially recognized and given the floor and time allotment to speak, he began his prepared remarks to an empty chamber.  He stood there and gave, at times, a passionate speech to literally no one.  Almost every single desk and chair were empty, with the only people present the tourists up in the gallery with me or a few staffers pushing papers up front.  This is what his impassioned speech looked like:
 

I sat through the congressman's entire speech to an empty House chamber.  As he walked away from the podium, the voting and roll call commenced.  Perhaps a few other congressmen and congresswomen slipped in to cast their vote, but they were nearly impossible to pick out among the staffers and interns.  After the 15 minutes of voting, NV (not vote) and PRES (present) easily received more voted than YAY and NAY combined.  I walked out of the Capitol and finally accepted reality.  Regardless of political party, our elected leaders do not debate one another, listen to their colleagues speeches, or even hardly show up for votes.  I saw more congressmen on the cable news rounds in the hour following the pathetic vote, and I finally grasped what our legislative branch had devolved to.  The rest of my internship was only one disappointing experience after another, and it became abundantly clear our congressional leaders put raising campaign money and television sound bites vastly ahead of their actual congressional duties.  I saw no debates, conversations or impassioned deliberations, rather only empty chairs, empty chambers and empty promises.

I tell this story not to complain or harp on the already known fact of congressional ineptitude, but to illustrate the revaluation of myself that ensued.  I had based my entire reasoning for law school on wanting to work in the government and the amazing city of our nation's capitol.  While I still love D.C. and all the history, I eventually realized my desire for law school and my future cannot hinge on factors outside of my control.  I now want to attend law school to further my education and to gain a legal focus where I can contribute to society in a beneficial and positive manner.  I am a passionate individual and I know I can channel my passion for law into a focus where I hopefully can contribute to a discussion and environment which is literally the exact opposite from that on Capitol Hill.  I simply understand that I will be most effective and influential by helping others, rather than only myself. 

Passport Proclivity

A United States passport is an American citizen's ticket to the world, and is one of the most important documents and individual can possess.  U.S. passports are one of only a handful of documents that can be used as an irrefutable proof of United States citizenship, but most are used primarily to travel abroad. When I saw a headline today about a U.S. Court of Appeals for the District of Columbia ruling pertaining to U.S. passports I was curious, mostly because I couldn't think of any major legal issue that would be relevant.  However, the Court of Appeals ruling today was interesting and highlights the important constitutional distinction between the three branches of our government.

The Facts:  The facts of the case the Court of Appeals was considering pertains to a 2002 law passed by Congress which required the State Department to list "Israel" as the birthplace for Jerusalem-born U.S. citizens.  This law was passed despite the long standing position of the executive branch of neutrality toward the sovereignty of the city of Jerusalem.  The United States has recognized Israel since it's inception in 1948, but no executive branch has ever veered from the neutrality stance on Jerusalem because both Israel and Palestine claim the city as a political and/or spiritual capital.

However, the real issue under consideration was the fact that Congress passed a law with the sole purpose of forcing the State Department to recognize Israel's singular sovereignty over Jerusalem.  Instead of just listing "Jerusalem" as the place of birth, the law required passports to be issued as "Jerusalem, Israel" and thereby dictating U.S. foreign policy.  The case centers around the Zivotofsky family, whose son was born in Jerusalem.  When Mrs. Zivotofsky applied to have her son's passport list his place of birth as "Jerusalem, Israel" immediately after Congress passed their 2002 law, the consulate only listed Jerusalem.  This sparked litigation and the constitutional conflict around whether the President and executive branch (which the State Department is under) has the sole power to recognize foreign nations and dictate U.S. foreign policy. 

The Ruling:  The U.S. Court of Appeals for the District of Columbia unanimously found the 2002 law to be unconstitutional and a direct violation of the enumerated powers to the executive branch.  Judge Henderson wrote:

Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality on what nation or government, if any, is sovereign over Jerusalem.

Henderson was joined by two other judges, making it a unanimous ruling from appointees of Republican and Democratic presidents.  Presidents since Harry Truman have strictly adhered to the notion of neutrality for Jerusalem in order to avoid damaging prospects for a potential peace deal.  However, the real issue before the court was the effort by the legislative branch to dictate U.S. foreign policy, which is almost exclusively a privilege of the executive branch.  The court went on to note that "While the president's foreign affairs powers are not precisely defined, the courts have long recognized the president's presumptive dominance in matters abroad".  The issue of legislative versus executive authority in dictating foreign policy has always been a constitutional issue throughout our country's history, but from the Supreme Court down, the judiciary have almost always ruled exclusively in favor of the executive branch.  If you have any thoughts please feel free to share!

Finding Your Niche: An Interview From The Top

If you take a quick glance at the landscape for law school today the numbers undoubtedly paint a bleak picture.  Applications for the 2013 school year fell 13.4 percent from 2012, while first year attendance had fallen 7 percent from 2010-2011 (last year of updated data).  Not to mention, the number of LSAT's being taken has fallen for three years in a row and is down over 34 percent from the 2009-2010 peak.  All of these stats seem to indicate an increasingly ominous landscape for potential law school applicants and graduates, especially considering the enormous financial burden that usually comes with three years of law school.  However, if you are able to read between the lines there are glimmers of hope and one can find a silver lining.  As someone who is taking the LSAT in December these headlines are concerning, so I decided to interview someone who is on the front lines in the field of law.  My current supervisor does a lot of work with different law firms across the country and I decided to pose a few questions to Craig Killen, Partner of Nelson Mullins Riley & Scarborough LLP.  I wanted to frame my questions to address specifically the changing landscape in the field of law and new law school graduates.  As you might assume, Mr. Killen is extremely busy so I kept my interview to a formal email.  Here were his responses to a few of my questions.

Q1: I wanted to start out by asking about the overall changing landscape in the field of law.  What general changes have you noticed in the past few years and what has been the effect? 

A1: Well you know, the whole landscape was really jolted in 2008.  Many law firms were insulated and didn't feel the full effect of the recession until 2010 or later, that's when major clients began drying up as people began cutting personal expenses across the board.  But it wasn't just a decrease in clients.  When the major lenders restricted credit you saw the ripple effect across multiple legal specialties.  The attorneys with a focus on real estate, financing and acquisition, loan underwriting, wealth management, etc. all felt the impact from the 2008 recession.  The result has been widespread and you saw some major firms shut their doors as a result.  The reality is, the market was saturated with a large number of people holding law degrees and when firms have to tighten their belts, everyone is affected.

Q2:  What effect has the recent downturn had on hiring new law school graduates?

A2: The most immediate impact from the recession and past few years is that individuals who have just graduated are finding themselves in a market where the demand for young attorney's just is not there.  A degree that used to be a one way ticket for a six figure salary right after taking the bar, is not enough on its own.  We get applications for top notch graduates who have been working as paralegals or clerks simply because that is all there is available right now.  The reverse is also true.  I see on a daily basis attorneys who maybe haven't been practicing or have been doing other legal advising unable to get back to where they were pre-2008.  Guys who have been working in their industry for 20 plus years, are suddenly finding themselves in a situation where they are just trying to beat out the new graduate.  Overall I would say that hiring has slowed, but since 2012 there has been a general trend toward the positive.

Q3: In your opinion, is a law degree worth it in 2013?  And if so, what advice would you give to succeed in this tougher job market?

A3: A law degree is still worth it, absolutely.  It's all about finding your niche.  I can't stress that enough.  Many envision themselves in the courtroom as the bigshot attorney, but you have to be flexible now.  I fully understand the debate of whether $100,000 in student loans is worth it, especially if your only prospect is a court clerk right after graduation, but law school is an investment in yourself and one you should be willing to take.  Understanding that there are certain legal focuses that are growing and have potential for enormous growth in the future is key to being a successful attorney today.  The areas of intellectual property, health care, real estate (only recent) and international business are all specific areas that are experiencing exponential growth.  If you can find a focus that you enjoy, and which is growing in the future, you will be positioning yourself nicely.  Find your niche!

Q4: What is law school like in 2013, and what differences are there now compared to when you were getting your J.D.?

A4: Ha! Now I graduated from law school a while back and it's a little scary to think about it.  But I have a nephew who just graduated from Harvard Law and he's given me some recent insight.  For the most part, much of law school hasn't changed (which is part of the problem with dwindling enrollment, etc.), but one of the key things is to approach law school as a job.  One of the main purposes of your first year is to weed out the students who can't keep up.  You really have to approach your semester classes collectively as your full-time employment.  But like anything else, you will get out of it what you put into it.  I remember putting in a solid 40 or 50 hours a week in reading alone, and when it was closer to the end of the semester there were some in my class who would be putting in almost 80 hours a week, not myself, but it happened!  But from what I gather from my nephew, much is the same.  If you are willing to put in the time the results should speak for themselves.  Also, don't forget that your professors are an asset, and while many may seem too busy, a vast majority are extremely experienced in their respective fields and will be more than happy to help you outside of class.  Finally, I can't stress enough the importance of internship and work experience.  If you're a recent graduate with top notch grades, that's great, you made yourself competitive.  However, if you're a recent graduate with top notch grades and has internship and work experience, you have set yourself above the pool of graduates you are competing against.

My interview was extremely interesting and revealing about the actual state of things in the legal field.  While many headlines spell out doom and gloom for law school applicants and graduates, Mr. Killen provides great advice on how to succeed.  I found his point about "you get out of it what you put into it" simple but very significant.  Like one's undergraduate studies, a job or any relationship, expect to get out of it what you put into it.  If you walk into law school your freshman year with the attitude of "coasting", the likely result is a quick exit by the end of the fall semester.  Also his point about finding your niche is really telling, because that seems to be a theme I've heard since working at my current firm and among current law school students I have spoken to.  Overall, I really enjoyed getting to ask the personal and important questions, and I cannot thank Mr. Killen enough!