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Saturday, October 08, 2005

Impeach Governor Schwarzenegger?

Governor Schwarzenegger has just signed into law a bill that directs makers of violent video games to label those games prominently with the number 18, and that forbids the rental or sale of such games to minors.  The story is here.  I've looked at the legislative language, and although it makes some effort to tie the law to Supreme Court decisions in the area of obscenity and minors (and, more peculiarly, as an alternative approach, to cases discussing "heinous, atrocious or cruel standard in capital cases), the law will, more or less beyond a doubt, be found unconstitutional on either state or constitutional grounds, both for vagueness and/or overbreadth and as an impermissible content-based regulation of speech.  Similar statutes have faced that fate in federal court; see, e.g., Interactive Digital Software Ass'n v. St. Louis Cty., 329 F.3d 954 (8th Cir. 2003); American Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001).  In the Ninth Circuit, a similar law was invalidated by a district court in Washington state; see Video Software Dealers Ass'n v. Madeng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004) [cite info may be slightly off on this last one].

How can the Governor -- who signs a bill to support the Constitution -- defend signing this bill, which is fairly transparently unconstitutional?  (Professor Kevin Saunders, a professor at Michigan State's law school who has been an advocate for restricting such materials aimed at minors, says in the article that "[t]he fact that previous courts have struck [such laws] down doesn't mean a court with more evidence won't uphold it"; I think he is engaging in wishful thinking.)  We've talked some about oaths and oath-keeping on this blog; this is another example.  Of course, the Governor might believe the courts have wrongly interpreted the First Amendment and that the bill is constitutional on a proper reading of the state and federal constitutions; or that loyalty to the Constitution is consistent with signing laws whose constitutionality is dubious and leaving it to the courts to resolve the issues -- although that is not exactly the essence of conservative thinking on this issue.  More likely, the Governor either thinks the law is unconstitutional but doesn't care, or just doesn't care one way or the other.  There is always much talk about the need for loyal and self-restrained judges and Justices who respect the Constitution.  Would that there were more discussion of the oath-bound obligations of elected officials.

P.S.:  I am looking forward to reading of the enterprising reporter who seeks the Governor's explanation as to whether a law that imposed similar age restrictions on moviegoing for violent films would be equally constitutional.  Could the state bar 17-year-olds from renting or attending or purchasing Terminator 3?  (Or just about any other Schwarzenegger movie.)  If the video game law is a good idea, wouldn't a similar measure for movies be equally good public policy?  When will the Governor be pushing this legislative measure?    

Posted by Paul Horwitz on October 8, 2005 at 04:24 PM in Constitutional thoughts | Permalink


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Quite right, Mr. or Ms. Nonymous. Should be "who takes an oath to uphold the Constitution." Mea culpa.

Posted by: Paul Horwitz | Oct 9, 2005 5:25:38 PM

Typo? "who signs a bill to uphold the constitution" - i know what you meant, but distracting nonetheless.

Posted by: Eh Nonymous | Oct 9, 2005 5:21:12 PM

I get Paul's point, but I think the level of concern about faithlessness to the Constitution isn't identical as between the branches. Rather, I think it has to vary with the subject matter and the institution involved.

With respect to non-justiciable issues, such as political questions, we might want to be more concerned about executive constitutional lawlessness since there's no judicial check (and political checks may be inadequate to address the constitutional concerns).

But with respect to constitutional issues decided by the SCOTUS (or state courts deciding issues of state law), we might want to be more concerned about judicial faithlessness to the Constitution, since there's neither a political nor an institutional check (short of, of course, impeachment).

Posted by: Dave | Oct 9, 2005 4:53:20 PM

All right. So if the point is just that a governor who wrongly decides constitutional questions is just as worthy of concern as a judge who wrongly decides constitutional questions, I agree.

Posted by: Will Baude | Oct 9, 2005 4:02:15 PM

I should probably note that the question asked in the title is intended more to provoke and raise the broader point -- namely, that we ought to be as concerned about constitutional faithlessness on the part of elected officials as we purport to be about faithless judges -- than to seriously argue for impeachment. As a general rule, I prefer political remedies to quasi-legal remedies like impeachment.

Posted by: Paul Horwitz | Oct 9, 2005 3:38:10 PM

I confess, this seems to me about as much of a nonstarter as the notion of impeaching justices for deciding constitutional cases wrongly, which was flirted with during the Federalist period but thankfully abandoned.

In an area where doctrines are in flux, or where an executive or legislator believes those doctrines to be substantively incorrect, it seems quite wrong to think that the executive violates his oath in signing a bill that will be struck down as unconstitutional.

Is there any actual evidence that the governor believes that the law in question violates the Constitution of California or of the United States?

I mean, I happen to agree that it is unconstitutional, but I don't think that those who claim otherwise are acting in bad faith.

Posted by: Will Baude | Oct 9, 2005 3:00:48 PM

Interesting idea, but I think it's a non-starter for a couple reasons. The notion of constitutionality is malleable enough that it would be hard to make such a charge stick, both in whatever tribunal evaluates the charge formally and in the court of public opinion.

There's also a scienter problem. What's the answer when the executive craftily responds that she believed in good faith that the law was constitutional? Or, to take it to another level, that she understood the law to be in tension with current First Amendment doctrine, but that she believed in good faith that those cases were wrongly decided? The crafty executive could even cite recent scholarship that Marbury was wrongly decided and that executives, too, have the power to say what the law is.

The latter concern might be overcome by evidence that an executive was advised by experts that a law was clearly unconstitutional. But this kind of evidentiary rule might create bad incentives; it would encourage executives to be as ignorant of constitutional issues as possible. And lord knows the Governator doesn't need any additional incentives in that direction.

Finally, legislators would be unlikely to push for impeachment given the possible implications of this argument for them. If a law they support is invalidated on constitutional grounds, are the legislators that voted for it at risk for impeachment? Perhaps at least the bill's sponsor may be, right? Of course, this might be a good incentive--forcing legislatures to think very carefully about the constitutional validity of the laws the pass. But it's still a dangerous road for them to go down.

Posted by: Dave | Oct 9, 2005 2:44:58 PM

Of course, sometimes the Governor pretends something is unconstitutional so he can veto it: http://writ.news.findlaw.com/commentary/20050916_leib.html

Posted by: Ethan Leib | Oct 9, 2005 2:09:48 PM

It is fairly common for political actors to pass or approve legislation that they know is unconstitutional, for political purposes. Legislation like this is very popular, and Schwarzenegger wants to be reelected next year. When the measure is declared unconstitutional by a court, as he knows it will be, he will be able to point to the judge as the bad guy, versus himself as the hero who tried to protect the people but was ultimately thwarted. The courts have long served as convenient whipping boys for this kind of demogoguery.

Posted by: yclipse | Oct 9, 2005 9:45:42 AM

Don't many states, or at least local communities, make it illegal for those under 17 to attend R-rated movies w/o an adult, and to attend NC-17 movies at all? My understanding is that, at least, the theators can be fined for letting in kids, and that in some places the police will sometimes make checks of ID's. I've never heard of a challange to this, and it seems to be the same thing- the burden is placed on the theator, as I assume it would be placed on the seller.

Posted by: Matt | Oct 9, 2005 9:34:31 AM

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