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Expanding Congressional Power in Gonzales v. Carhart

In Gonzales v. Carhart (Carhart II), the Court delivered a setback to a woman’s right to choose by affirming the constitutionality of the Partial-Birth Abortion Ban Act of 2003 (“Ban Act”). In doing so, however, the Court enlarged the scope of congressional power. The Court deferred to Congress’s factual findings and allowed Congress to determine for itself that an exception for the health of the mother was unnecessary. This deference, although disheartening inCarhart II, is promising for future civil rights legislation.

Seven years ago in Stenberg v. Carhart(Carhart I), the Court held that substantive due process requires that every piece of abortion legislation contain an exception for the health of the mother.Carhart I interpreted Planned Parenthood of Southeastern Pennsylvania v. Casey to mandate a health exception when “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health.” The Court in Carhart Idid not specify whether Congress or the Court is the appropriate body to judge the strength of the medical authority and determine whether a health exception is necessary.

Remaking Lawrence

It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.

These sentences appeared in the Supreme Court’s decision Lawrence v. Texas, which struck down sodomy laws as violating liberty protections for private sexual conduct. The decision was a watershed moment for civil rights and civil liberties advocates. For gay rights activists, the decision represented a movement toward sexual equality: “when the history of our times is written, Lawrence may well be remembered as the Brown v. Board of gay and lesbian America.” For civil libertarians, Lawrence marked another victory for privacy rights, namely that consenting adults have the right to engage in relations free from government intrusion. One article aptly described the decision as the Court drawing “a thick constitutional curtain around the nation’s bedrooms.”

Fast forward ten years. Arguments for the freedom of sexual expression, intimate association, and individual liberty that successfully prevailed in one set of circumstances—the decriminalization of sodomy—have been put to use in legal challenges involving gay and lesbian adoption, military service, and same-sex marriage. While Lawrence is invoked quite frequently and almost reflexively, lower courts rarely cite it as controlling precedent, and some have scoffed at attorneys for drawing on the decision to make their case. In the instances in which Lawrence takes center stage in a decision, its meaning either has a different application than when it was decided in 2003, or it is used in large part to strike down morality-based laws.5 These developments raise an important question only Tina Turner could style: What’s Lawrence Got to Do With It?

Deferred Prosecution Agreements: A View From the Trenches and a Proposal for Reform

Deferred and nonprosecution agreements are the Department of Justice’s (“DOJ”) new weapons of choice for “reforming” corporations. Rather than risk the severe collateral consequences that accompany an indictment and conviction, companies now are offered the opportunity to cooperate, pay massive fines, commit to elaborate undertakings, and remain under probation-like supervision for some period of time in exchange for an ultimate dismissal of criminal charges. In this novel and rapidly evolving legal area, Professor Brandon Garrett has identified difficult, cutting-edge problems and posed thorny questions.

Some of Garrett’s observations are undoubtedly correct. He is right that judicial review of DPAs is a pipedream and will remain limited during the negotiation and performance stages of these agreements. This is so, of course, not only because DOJ will be reluctant to surrender its discretion to a neutral third party decisionmaker but also because these agreements are necessarily creatures of compromise, an area in which courts generally do not play with an active or heavy hand except when a breach is claimed. And by stressing that DOJ “has never defined how its prosecutors measure compliance” with the terms of DPAs, Garrett has highlighted an exceedingly critical piece of the problem.

But while Garrett proposes creative ways of thinking about DPAs and hints at some of the difficulties these agreements have spawned for companies, he fails to offer his own, specific, practical proposal for reform. This is a significant oversight, since the addition of DPAs to DOJ’s playbook has caused real and consequential economic, reputational, and (at times) life-changing harm to companies.

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