Constitutional Law Prof Blog

Third Circuit: Federal Buy America Act Does Not Preempt State Law

A three-judge panel of the Third Circuit ruled this week in Mabey v. Schoch that the federal Buy America Act and implementing regulations do not preempt Pennsylvania's Steel Act.  Both acts require the use of steel made in the United States for public works projects funded by the federal and state governments, respectively.  But the Buy America Act has broader exceptions, including, importantly, a provision that says that the Act is satisfied when a project "[i]ncludes no permanently incorporated steel or iron materials."

The case arose after the state, citing the state Steel Act, declined to use Mabey's temporary bridge on a project, because Mabey gets its steel from the United Kingdom.  Pennsylvania previously contracted with Mabey, notwithstanding the state Steel Act.  But it apparently changed its policy, decided to enforce the Steel Act against Mabey, and, according to Mabey, forced Mabey to cancel four of its state contracts.

Mabey sued, alleging that exception in the federal Buy America Act preempted the state Steel Act, and that its temporary bridge met the federal Act's provision relating to "no permanently incorporated steel or iron materials."  The Third Circuit rejected this claim.  It ruled that another section of the federal Buy America Act and its regulations, read as a whole, did not clearly reflect congressional intent to preempt; instead, they left room for states to issue more stringent regulations--exactly what Pennsylvania did here.  Thus, the state's Steel Act restrictions applied with their full force to Mabey.

The court also rejected Mabey's Dormant Commerce Clause, Contract Clause, and equal protection claims.  As to the dormant Commerce Clause, the court ruled that the Steel Act fell under the market participant exception (because Pennsylvania was a market participant when it contracted for public works) and, moreover, that Congress authorized Pennsylvania to discriminate against interstate commerce through the federal Buy America Act.  The court said that the state's late-coming enforcement of the Steel Act against Mabey didn't violate the Contract Clause, because the Act was on the books since Mabey started contracting with the state, and the state agency's decision to enforce it didn't amount to "legislative authority subject to scrutiny under the Contract Clause."  And finally the court ruled that the state didn't violate the Equal Protection Clause, because the state's action--first not enforcing, then enforcing, the Steel Act--was rational: "A state agency could rationally determine that application of domestic steel requirements to items used at the discretion of the contractor is too onerous and difficult to enforce."

SDS

Chaskalson on Constitutionalism and Administrative Law

"It is probably inevitable that there should be some tension between judges and politicians in a country like ours where the Constitution entrenches the rule of law, and makes provision for an independent judiciary, and judicial review of legislative and executive action. This is inherent in the separation of powers . . ."

The "county like ours" is South Africa and the speaker is former Arthur Chaskalson.  Chaskalson, pictured right with Nelson Mandela, was a drafter of the South African Constitution and Chief Justice of the South African Constitutional Court, 

While certainly steeped in the South Africa Constitution, Chaskalson's recent speech, reproduced as an essay on Pierre de Vos' Constitutionally Speaking, is worth a read for all constitutionalists.

RR

 

House Republicans Seek White House Health Care Reform Memos

Republicans in the House Energy and Commerce Committee wrote to the White House demanding memos on White House deliberations on health care reform referenced in Ryan Lizza's piece in The New Yorker, The Obama Memos: The Making of a Post-Post-Partisan Presidency.  Republicans argued that the White House now waived any claim of executive privilege over the memos (although the White House has apparently never made such a claim).

According to the letter, the House Energy and Commerce Committee has been looking into "negotiations and agreements made between representatives from the White House Office of Health Reform (WHOHR) and various health care industry stakeholders regarding health care reform legislation" for over two years now.  Republicans on the Committee say that the White House has refused to cooperate by turning over internal memos.  But they also say that those memos made their way to Lizza, and that the White House has now waived any assertion of executive privilege:

Finally, while the White House has so far studiously avoided asserting executive privilege and has simply refused to provide the requested information, by voluntarily providing this information to a reporter the White House has waived any right to refuse production of these materials based on claims of privilege.

A footnote to this sentence reads:

In In Re Sealed Case the D.C. Court of Appeals addressed this issue when it held the White House had waived claims of privilege in regards to documents it voluntarily revealed to third parties outside the White House.

The Republicans' request is appropriately tailored to the documents they seek (and claim have been voluntarily released) under the approach to the executive privilege and the deliberative privilege In Re Sealed Case, but there's no indication that the White House voluntarily released them to Lizza--that Lizza didn't get them from some other source, or that the White House provided only selected information from them (and not the memos themselves).  Absent a voluntary release of the memos themselves, the White House almost certainly has not waived any available privilege.  And In Re Sealed Case suggests that the White House is under no obligation to assert the privilege until the Committee seeks to compel release (although In Re Sealed Case dealt with a different situation--an assertion of privilege against the OIC, not a congressional committee).

SDS

Press Freedom Index: US Falls

Most Americans take pride in the First Amendment's guarantee of freedom of the press:  "Congress shall make no law . . .  abridging the freedom of speech, or of the press."  

However, Reporters Without Borders has ranked the United States 47th in its Press Freedom Index issued today. This is below nations such as Canada (10), Australia (30), and the UK (28), as well as Spain (39), Slovenia (36), El Salvador (37), Niger (29), and Czech Republic (14).

 

The US is generally placed much higher on the index. According to the report, the US "owed its fall of 27 places to the many arrests of journalist covering Occupy Wall Street protests."  Here's one example.

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Fourth Circuit Rejects Padilla's Civil Claims

A three-judge panel of the Fourth Circuit yesterday rejected Jose Padilla's civil claims against Donald Rumsfeld and other high-level government officials growing out of his designation as an enemy combatant and his military detention.  The ruling, Lebron v. Rumsfeld, is at least in part in tension with a recent Seventh Circuit ruling (now on appeal to the en banc Seventh Circuit, and discussed below) and two recent district court rulings--one from the Western District of Washington and the other from the District of Columbia.

Padilla sued the officials for constitutional violations under Bivens and for violations of the Religious Freedom Restoration Act.  He sought declarations that his designation and detention were unconstitutional and that the policies that led to his treatment were unconstitutional, an injunction against future designations and detentions, and nominal monetary relief.  The district court rejected his Bivens and RFRA claims, and ruled that he lacked standing for injunctive relief.

The Fourth Circuit affirmed.  The panel applied the two-part framework in Wilkie v. Robbins (2007) and ruled (1) that special factors counseled against a Bivens remedy and (2) that Padilla had alternative forms of relief.  The panel said that separation-of-powers principles counseled against a Bivens remedy, in particular: military matters like this are the province of the political branches, and the courts lack the expertise and risk upsetting the military command structure and intelligence gathering activities.

The panel also said that Padilla had other forms of relief, in particular habeas.

The ruling on special factors and separation of powers is in tension with similar recent rulings by the Seventh Circuit and two district courts.  Thus in Vance v. Rumsfeld a three-judge panel of the Seventh Circuit ruled that separation-of-powers principles like those at issue here did not stand in the way of the plaintiffs' Bivens remedy.  The U.S. District Court for the District of Columbia ruled similarly in Doe v. Rumsfeld.  Both cases involved U.S. citizen plaintiffs (like Padilla)--an important point of distinction for the Seventh Circuit panel, which distinguished Ali v. Rumsfeld (D.C. Cir. 2011) and Arar v. Ashcroft (2d Cir. 2009), both of which rejected Bivens claims of aliens.  (We posted on the cases here.)

The Western District of Washington extended Vance and Doe just last month in Hamad v. Gates.  That court ruled that separation-of-powers principles did not counsel against a Bivens claim of an alien.  The court ruled that alienage didn't matter for the special factor analysis.

The ruling on alternative relief is not so obviously in tension with Vance and Doe.  The plaintiffs in those cases were U.S. citizens detained overseas at Camp Cropper, without available access to habeas.  (Whatever one thinks about the Fourth Circuit's ruling that habeas as a reasonable alternative to a Bivens claim in the Wilkie calculus, the plaintiffs in Vance and Doe didn't even have that.)

The panel ruling in Vance was vacated and is now on appeal to the en banc Seventh Circuit.  Oral arguments are set for February 8.

The Fourth Circuit also ruled that the defendants enjoyed qualified immunity against Padilla's RFRA claim, because it wasn't clearly established that RFRA would apply to military detention.

Finally, the court ruled that Padilla lacked standing on his claim for injunctive relief.  It ruled that Padilla couldn't show that he'd be subject to re-designation or re-detainment, and, in any event, it won't happen for a long time: He's now facing more than 17 years on resentencing in his criminal case.

SDS

 

Tenth Circuit Finds Banning Registered Sex Offenders from Libraries Unconstitutional

The City of Albuquerque issued an "Administrative Instruction" banning registered sex offenders from "all public libraries" and further that "Library staff shall send a letter to every sex offender who has a library card and inform them they are no longer allowed in our libraries."  In its opinion in Doe v. City of Albuquerque, the Tenth Circuit affirmed the district judge's grant of a summary judgment in Doe's favor on the First Amendment claims.

Much of the 44 page opinion is devoted to standards: for summary judgment, for appellate review, and for facial constitutional challenges.  The applicable First Amendment standard is from Ward v. Rock Against Racism, 491 U.S. 781 (1989):  “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”  Yet is the interaction of these standards, and the procedural posture of the case, that leads the Tenth Circuit to affirm the district court's finding that the library policy is unconstitutional.

It seems that the City argued there was “no burden upon the City to prove anything,” so it did not submit any evidence as to the Ward factors in opposing Doe’s summary judgment motion," and continued to advance that same argument on appeal.  Thus, the Tenth Circuit found that there was no satisfaction of the narrowly tailored prong or the ample alternative channels for communication prong under Ward.

The Tenth Circuit panel's conclusion stresses the narrowness of its holding and seems to encourage the City to "try again":

Our conclusion that the district court’s grant of summary judgment must be affirmed does not reflect a pronouncement on the ultimate legality or merit of the City’s ban. We are sympathetic to the City’s desire to ensure that its public libraries provide a safe, welcoming environment for its patrons, especially children. We therefore are especially mindful of concerns that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment.
Although we hold these concerns, as an appellate court we are constrained by the record. And this record shows that in response to a motion for summary judgment, the City provided no evidence as to two dispositive Ward factors as to which it had the burden on summary judgment. While we are perplexed by the City’s strategic decision here, it binds our hands in this case.
We note that our decision does not signal the death knell of the City’s efforts, if it wishes to pursue them, to restrict access of registered sex offenders to the City’s public libraries. We can imagine such an effort succeeding through a revised ordinance where it is shown that the restriction satisfies the three-prong time, place and manner Ward test.

Yet it may not be as easy to satisfy a rigorous application of the Ward test as the Tenth Circuit implies, at least if the narrowly tailored and alternative means of communication prongs are taken seriously.

RR
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Ninth Circuit Rejects As Applied Challenge to Washington Election System

A three-judge panel of the Ninth Circuit this week rejected an as-applied challenge to the two-phase Washington state election system held over from the Supreme Court's ruling in Washington State Grange v. Washington State Republican Party (2008).

Recall that the state's election system under Initiative 872, or I-872, created a "top two" primary in which the primary operates to reduce the number of candidates in the general, rather than to select party nominees.  It works like this: Primary candidates can designate any "major or minor party preference, or independent status"; the top two vote-getters in the primary (even if they designated the same party preference) go on to compete in the general.

The Washington State Republican Party challenged I-872 on its face, aguing that it violated its First Amendment associational rights, because it forced it to associate (or share its name) with candidates that it might not endorse.  The Supreme Court upheld I-872 against the facial challenge in 2008.  But the Court left open the question whether Washington's primary ballots would in fact confuse voters, thus potentially violating associational rights as applied.

The Ninth Circuit answered that question on Thursday.  The court noted that Washington adopted each of the four suggestions offered by the Supreme Court in Grange to avoid voter confusion.  These included clarifications on the ballots themselves and voter educational material to ensure that voters would not confuse a candidate's preference for a party as a party's endorsement of that candidate.  The panel also held that the plaintiffs failed to produce evidence of actual voter confusion.  Between the ballot fixes and the lack of evidence of actual voter confusion, the court held that there was no severe burden on the party's associational rights.

The court also rejected the Libertarian Party's ballot access claim.  The Libertarians argued that the top-two primary made it much more difficult for their candidates to compete in the general election.  The court said that the system provided a level playing field for all parties, and that, while a top-two system may make it more difficult for minor party candidates to move on to the general, "[t]his additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems.  See Cal. Democratic Party v. Jones (2000)."  (Citation omitted.)

SDS

Occupy Jacket-wearer Arrested at Supreme Court Building

The video below is entitled "Man Arrested for Wearing Occupy Jacket at Supreme Court" (h/t Virginia Wilber) and the title seems accurate.  Although we don't have a good view of the jacket, the officer clearly refers to it (and asks the wearer to remove it); the officer also states that the prohibition is not based on an ordinance, but on the U.S. Code. 

As we've previously discussed, two federal statutes applying to the Supreme Court Building prohibit the  "display therein any flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement."

 

 

Students of the First Amendment will recall Paul Robert Cohen's famous "Fuck The Draft" jacket worn in the corridors of a Los Angeles courthouse.  The Supreme Court in Cohen v. California (1971) reversed Cohen's conviction and held that California "may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense."  However, the Court's opinion added that the expletive was " "the only arguably sustainable rationale for the conviction."   Thus, Cohen is focused on the exepletive rather than the content.  Yet perhaps ironically, Cohen's jacket would nevertheless be excluded by officers enforcing the Supreme Court policies - - - U.S. Code provisions - - - governing words on jackets.

Just as Justice Harlan began his opinion in Cohen by noting that the "case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance," the specific arrests for jacket-wearers may seem trivial.  Yet as otherwise allowed First Amendment expressions in and at the Supreme Court Building continue, the Supreme Court Building's status as a First Amendment-free zone also continues to be ripe for review.

RR

Supreme Court Vacates Texas Court Redistricting Maps

The Supreme Court today vacated the Texas district court redistricting maps in Perry v. Perez, saying that it was "unclear whether [the district court] followed the appropriate standards in drawing" those maps.  The ruling sends the case back to the U.S. District Court for the Western District of Texas for more map-drawing, consistent with the standards set out in today's opinion.  We most recently posted on the case here.

The standard the Court set--that the district court should take guidance from a state's policy judgments, unless they reflect aspects of a plan that stand a "reasonable probability" of failing Section 5 preclearance--is a compromise between the positions taken by the parties.  "Reasonable probability" means that the Section 5 case is "not insubstantial"--a low bar--and leaves some room for a district court to deviate from a state's plan.  The approach requires the district court to determine the "reasonable probability" of the legislature's plan piece-by-piece (or aspect-by-aspect), and not as a whole; thus a district court has to leave in place any aspect of the legislature's plan that meets the standard.

As expected, the opinion said almost nothing about the constitutionality of Section 5 of the Voting Rights Act, the preclearance requirement.  (It only reiterated what it said in Northwest Austin--that it raises "serious constitutional questions"--and that those might be exacerbated with standardless map drawing by a district court.)  The Court also did not question a district court's ability to redraw district maps in a challenge under Section 2 of the Voting Rights Act; indeed, it gave guidance to the district court in how to do that.

The opinion was per curiam.  Only Justice Thomas wrote separately--a concurrence, arguing that Section 5 is unconstitutional.

The case arose out of the Texas district court's redrawing of Texas legislative maps in a case challenging the Texas legislature's maps under Section 2 of the Voting Rights Act.  The problem was that the Texas legislature's maps were pending Section 5 preclearance in the D.C. district, and the Texas primaries are impending.

The Court set the standard for the Texas court's redrawing of the maps in its opinion today:

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State's recently enacted plan in drafting an interim plan.  That plan reflects the State's policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. . . .  ["A] court, as a general rule, should be guided by the legislative policies underlying" a state plan--even one that was itself unenforceable--"to the extent those policies do not  lead to violations of the Constitution or the Votigin Rights Act." . . .

Section 5 prevents a state plan from being implemented if it has not been precleared.  But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan.  On the contrary, the state plan serves as a starting point for the district court.  It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court's own preferences.

A district court making such use of a State's plan must, of course, take care not to incorporate into the interim plan any legal defects in the state plan.  Where a State's plan faces challenges under the Constitution or Section 2 of the Voting Rights Act, a district court should still be guided by that plan, except to the extent those legal challenges are shown to have a likelihood of success on the merits.  Plaintiffs seeking a preliminary injunction of a statute must normally demonstrate that they are likely to succeed on the merits. . . .

The need to avoid prejudging the merits of preclearnace is satisfied by taking guidance from a State's policy judgments unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain Section 5 preclearance.  And by "reasonable probability" this Court means in this context that the Section 5 challenge is not insubstantial.  That standard ensures that a district court is not deprived of important guidance provided by a state plan due to Section 5 challenges that have no reasonable probability of success but still respects the jurisdiction and prerogative of those responsible for the preclearance determination.  And the reasonable probability standard adequately balances the unique preclearance scheme with the State's sovereignty and a district court's need for policy guidance in constructing an interim map.  This Court recently noted the "serious constitutional questions" raised by Section 5's intrusion on state sovereignty.  Northwest Austin.  Those concerns would only be exacerbated if Section 5 required a district court to wholly ignore the State's policies in drawing maps that will govern a State's elections, without any reason to believe those state policies are unlawful.

Op. at 5-8.  The Court wrote that the Texas district court met this standard in some ways, that it did not meet it in others, and that it couldn't tell in yet others.

SDS

Justice Stevens on Colbert Report on Citizens United, et. al.

In case you missed retired Justice JP Stevens on The Colbert Report:

 

 

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Colbert Super PAC - John Paul Stevens
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive

 

More on Justice Stevens and his new book, Five Chiefs here, and Clinton v. Jones here.

RR

Groups Challenge President's Recess Appointments

Plaintiffs in ongoing litigation filed a motion last Friday challenging President Obama's recent recess appointments to the NLRB.  We most recently posted on the appointments here and here.

The plaintiffs--including the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business--filed their initial complaint in the Federal District Court for the District of Columbia last September, alleging that the NLRB lacked authority under the National Labor Relations Act to implement several new rules, including one that would require employers to post notices to their employees of their rights under the NLRA.

In the motion last week, the plaintiffs sought to amend their complaint to add a new charge--that President Obama's recent recess appointments to the NLRB were unconstitutional, and therefore the NLRB didn't have sufficient sitting members to enforce its new rules.  From the memorandum in support of the motion:

The Board has lost its quorum due to the expiration of Member Becker's term and the President's failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . .  The President's purported appointment of the new Board members on January 4, 2012 was unconstitutional, null and void.  As a result, there are at present only two validly serving members of the Board, Chairman Pearce and Member Hayes.  The Supreme Court has declared that the Board lacks authority to act with only two members.  New Process Steel, L.P. v. NLRB.

SDS

 

SOPA & Protect-IP Bills Provoke First Amendment Concerns

SOPA, the Stop Online Privacy Act, H.R.3261, and its Senate counterpart, Protect-IP Act, S. 968, seek to protect copyright on the internet.  It has provoked a day of protest today, including "blackouts" by Wikipedia, Reddit, and other sites, contending that the bills violate the First Amendment.

SOPA has a savings clause in §2(a)(1) that provides

"FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution."

However, as Laurence Tribe's 20+ page memo on the unconstitutionality of SOPA concludes:

To their credit, SOPA’s sponsors recognize the importance of the constitutional issues raised by the statute they propose. The bill includes language stating “[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1stAmendment to the Constitution.” But proclaiming the bill to be constitutional does not make it so – any more than reminding everyone of a proposed law’s good intentions renders that law immune to First Amendment scrutiny. At the same time, the proviso may have the unintended effect of rendering large swaths of the bill inoperative. For it is difficult to understand how the provisions discussed above would operate except  as impermissible prior restraints. The proviso creates confusion and underscores the need to go back to the drawing board and craft a new measure that works as a scalpel rather than a sledgehammer to address the governmental interests that SOPA purports to advance.

A good collection of the arguments against SOPA is over at Center for Democracy and Technology, including "long-form analysis" by both The Heritage Foundation and the ACLU.

As the LATimes reports today, SOPA and Protect-IP are losing Congressional support, including from former co-sponsors. It may be that the legislation may be reworked to be more scalpel-like.

RR

CFP: Gardens of Justice

What are constitutions if not plans for gardens?

A wonderful and imaginative call for papers for a critical legal conference in Stokholm this September, via Kate Sutherland at Osgoode Hall's law.arts.culture.

From the CFP: "The theme for next year’s Critical Legal Conference is “Gardens of Justice”. Although the theme may be interpreted in different ways, it suggests thinking about law and justice as a physical as well as a social environment, created for specific purposes, at a certain distance from society and yet as an integral part of it. The theme also invites you to think about justice as a concrete metaphor rather than an abstract concept. Just like any ordinary garden, legal institutions affect both people working in them and people who are just passing through their arrangements."

 

Critical legal conference 2012

to be held in Stockholm, 14-16 September, 2012

deadline for submissions
streams, roundtables and workshops: 31 March 2012; individual papers: 31 May 2012

RR
[image: Frederick Carl Frieseke's Femme dans un jardin, 1912 via]

Fourth Circuit to Rick Perry (and Gingrich): Laches, Laches, Laches

"We cannot grant Movant’s request for this extraordinary remedy. We find it unnecessary to address whether Movant would ikely succeed in his constitutional challenges because the district court was correct in concluding that the defense of laches bars the requested relief on the instant motion in any
event."

In its opinion today, the Fourth Circuit affirmed the district court and rejected the emergency appeal of Rick Perry - - - and intervernor Newt Gingrich - - - seeking to be placed on the Republican Presidential Primary ballot in Virginia.

The Fourth Circuit panel found both prongs of the laches inquiry satisfied and rooted its reasoning in the need for judicial restraint.  In short, a federal court should not disrupt an orderly election process based on complaints by candidates who waited until the "eleventh hour" to bring their claims.  To do otherwise would be to

encourage candidates to wait until the last minute to bring constitutional challenges to state election laws. Once a candidate learned he had been denied a place on the ballot, he would take his disappointment to the courthouse and hapless state election boards would be forced to halt their scheduled election processes to wait for a ruling. Challenges that came immediately before or immediately after the preparation and printing of ballots would be particularly disruptive and costly for state governments.

The panel also turned the lack of standing and ripeness arguments advanced by the candidates to their disadvantage: while the candidate "predicts that he would have met the 10,000 signature threshold if only he had been allowed to use non-Virginia residents to gather signatures, such counterfactual speculation is not the office of the federal judiciary." 

It is unlikely that the United States Supreme Court will intervene; thus it does seem that Perry, Gingrich, and Santorum will not join Ron Paul and Mitt Romney on the Virginia ballot. 

RR

MLK Day 2012

President Obama's Presidential Proclamation on Martin Luther King Day, 2012, includes these words:

At a time when our Nation was sharply divided, Dr. King called on a generation of Americans to be "voices of reason, sanity, and understanding amid the voices of violence, hatred, and emotion."  His example stirred men and women of all backgrounds to become foot soldiers for justice, and his leadership gave them the courage to refuse the limitations of the day and fight for the prospect of tomorrow.  Because these individuals showed the resilience to stand firm in the face of the fiercest resistance, we are the benefactors of an extraordinary legacy of progress.

Today, Dr. King is memorialized on the National Mall where he once spoke, a symbol of how far our Nation has come and a testament to the quiet heroes whose names may never appear in history books, but whose selflessness brought about change few thought possible.  Dr. King's memorial reminds us that while the work of realizing his remarkable dream is unending, with persistence, progress is within our reach.

On the MLK memorial itself, the "drum major" quote has been the subject of controversy and is being "corrected."  The government sponsored MLK Day of Service continues to include the Drum Major for Service Award, as well as the correct/full "drum major" quote:   "Yes, if you want to say that I was a drum major, say that I was a drum major for justice; say that I was a drum major for peace; I was a drum major for righteousness… We all have the drum major instinct.”  Excerpt from The Reverend Dr. Martin Luther King, Jr.'s "Drum Major Instinct" sermon, given on February 4, 1968.

For ConLaw scholars, it might also be a good day to (re)read Randall Kennedy's "Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott," 98 Yale Law Journal 999 (1989) (available on JSTOR) or Camille Nelson's " The Radical King: Perspectives of One Born in the Shadow of a King," 32 New York University Review of Law & Social Change, 485(2008) (available on ssrn), or view MLK's last speech.

RR
[image: personal collection]

. . . and Candidate Rick Perry has filed an appeal to the Fourth Circuit

Republican Presidential Candidate Rick Perry has appealed from the district court's order denying his First Amendment claim for a preliminary injunction. 

In the emergency motion for injunction pending appeal, Perry's attorneys argue that the requirements for laches - - - lack of diligence by plaintiff and prejudice to defendant - - - were not satisfied.  

RR
[image: Governor Rick Perry, 2006, via]

UPDATE here

Four Republican Candidates Lose First Amendment Ballot Challenge in Virginia on Laches

In the opinion in Perry v. Judd (with Gingrich, Huntsman, and Santorum as intervenors), Judge John Gibney of the Eastern District of Virginia denied the motion for preliminary injunction seeking to allow the Republican candidates on the ballot on the grounds of laches. 

Perry and the other candidates not on the ballot argue that the Virginia process violates the First and Fourteenth Amendments.  Virginia Code, §24.2-545(B), requires that the required petitions be "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth."  Additionally, the provision gives the State Board authority over the petition process: the Board has mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary. 

In considering the First Amendment merits of the challenge, the judge found the Supreme Court's 1999 decision in Buckley v. American Law Foundation "instructive,"  especially regarding Virginia's requirement that the petition circulator be a resident of Virginia (as part of the "eligible voter" requirement).  While the Virginia requirement is less restrictive, it nevertheless "limits the number of voices who can convey the candidates' messages, thereby reducing 'the size of the audience [the candidates] can reach.' " (Opinion at 16).  Applying strict scrutiny to this political speech, the judge was "skeptical" that the state's proferred interest (the ability to subpoena petition circulators) was compelling.

On the other hand, the judge found the statute's 10,000 signature requirement would likely survive First Amendment scrutiny.  He reasoned that such a number - - - 0.2% of the state's registered voters and 0.5% of the voters who voted in the last statewide election - - - cannot be seriously argued to be "unduly burdensome."  In further support, he noted that six Republican candidates complied with the same rules four years ago for the 2008 primary election.

The judge's opinion conducts a separate analysis for laches - - - noting that it is an affirmative defense - - -rather than including it within the standards for preliminary injunction. (Recall that the last two factors of the established four-factor test are whether the equities tip in the movant's favor and whether the injunction is in the public interest.)   Laches as an affirmative defense to equitable relief is well-established; as relief for a First Amendment violation, less so.  However, considering the requirements of lack of diligence and prejudice to the respective parties, Judge Gibney found that the Candidates were not diligent - - - they should have "brought in an army of out-of-state circulators" as soon as possible (July 1 for Huntsman, Santorum, and Gingrich; August 13 for Perry who did not declare his candidacy until that date).  

The judge rejected the candidates' argument that they did not have standing until the State Board rejected their ability to appear on the ballot.  The Board rejected their claim because they did not have the 10,000 required signatures. But Judge Gibney essentially states that they should have disregarded (or perhaps challenged) the petition circulator qualification that arguably prevented them from obtaining the 10,000 signatures well before failing to obtain the 10,000 signatures.  As Judge Gibney phrases it, the candidates "slept on their rights to the detriment of the defendants."

Thus, had the candidates "filed a timely suit," the judge would have granted a motion on the residency required and allowed non-residents to gather signatures, the candidates would have presumably been able to obtain 10,000 signatures, and Perry, Huntsman, Santorum, and Gingrich would be on the Virginia presidential Republican primary ballot. 

Although an appeal seems likely, as of now, Virginia Republicans will have a choice between Ron Paul and Mitt Romney.

UPDATE: APPEAL FILED, Sunday, January 15, 2012.

RR
[image: Republican Candidates, 2012, via]

Posner, Dreadlocks, and Free Exercise: Seventh Circuit Allows Prisoner Suit to Proceed

Writing the opinion in Grayson v. Schuler, Judge Posner, in his imitable style, has rejected what he terms a "Rastafarian exception" to a prison practice of allowing Rastafarians, but not others, to have dreadlocks.   In case readers of the opinion need a bit of tutelage on the subject, Posner instructs

"Dreadlocks can attain a formidable length and density, as shown in this photograph of the late Jamaican musician Bob Marley (a Rastafarian):"

Grayson, a former inmate of the Big Muddy Correctional Center, an Illinois prison, appeared pro se in the federal courts, arguing that the correctional officer who ordered the forcible shearing of his dreadlocks violated the Free Exercise Clause.  The officer had declared that Grayson's hair caused a security risk.  Grayson contacted the prison chaplain who informed him that "only Rastafarians are permitted to wear dreadlocks."  Grayson, Posner explains, 

is not a Rastafarian, but a member of the African Hebrew Israelites of Jerusalem; and according to the chaplain the members of that sect are not required by their faith to wear dreadlocks (this appears to be correct), and therefore, he concluded, the plaintiff was not entitled to wear them. (It’s the “therefore” that’s the issue in this appeal.)

Interestingly, the chaplain's opinion (as well as Posner's) about the tenets of the African Hebrew Israelites could raise an Establishment Clause concern.  Posner, however, discusses the vows of the Nazirites which includes letting the hair of the head "grow long," and citing to the Biblical character of Samson, whose seven braids, "could well have been dreadlocks."

Posner cites Employment Division v. Smith, 494 U.S. 872 (1990), with its rule regarding neutral laws of general applicability just discussed by the Supreme Court in Hosanna-Tabor, but notes that the applicability of Smith to prisoners is uncertain because of an earlier Supreme Court decision, O’Lone v. Shabazz, 482 U.S. 342, 348-50 (1987), "which requires prison authorities to “accommodate” an inmate’s

religious preferences if consistent with security and other legitimate penological concerns." Posner notes that O'Lone was not expressly overruled by Smith, or by Cutter v. Wilkinson, 544 U.S. 709 (2005) - - - neither of which occurred in a prison context, of course - - - and adds that "we’re not supposed to declare a decision by the Supreme Court overruled unless the Court makes clear that the case has been overruled, even if we’re confident that the Court would overrule it if the occasion presented itself."

Yet ultimately Posner states that the case does not rest on "accommodation" surviving Smith, but on the arbitrary discrimination favoring Rastafarians.  Indeed, it is this arbitrary discrimination that supports Posner's reversal of the summary judgment finding the officer was entitled to qualified immunity.   The officer "seems just to have been applying the Rastafarian exception, which could not reasonably be thought constitutional."

RR
[image: from the opinion;
and thanks to a reader, we can now identify the correct source of the image as photographer David Corio, here]

OLC OKs President Obama's Recess Appointments

The Justice Department Office of Legal Counsel today released its opinion (dated January 6, 2012) concluding that President Obama had authority under the Recess Appointments Clause to appoint Richard Cordray as head of the Consumer Financial Protection Bureau and members of the National Labor Relations Board during less than three-day breaks between pro forma sessions of the Senate.  We most recently posted on the appointments here.

Recall that opponents of the appointments argued that the three-day breaks between pro forma sessions were not long enough to constitute a "recess" of the Senate, and that the appointments therefore required Senate advice and consent and violated the Recess Appointments Clause.

The OLC took a functional approach to the definition of "recess," asking whether the Senate's pro forma sessions would have allowed the Senate to fulfill its advice-and-consent role for ordinary appointments.  The Office said no, and therefore the President may use his recess appointment power.

The OLC took it in a two-step.  First, it asked whether the President had authority to make a recess appointment during the Senate's recess here--a 20-day intrasession recess.  Answer: Yes, based on the OLC's prior advice, historical practice, and the limited judicial authority on the question.  This is relatively uncontroversial.

Second, it asked "whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted."  Answer: Also yes, although it acknowledged that this was somewhat more controversial--and creates "some litigation risk for such appointments."

This functional approach allowed the OLC to dodge the harder question, whether any three-day recess is necessarily a "recess" under the Recess Appointments Clause.  The memo explains:

Because we conclude that pro forma sessions do not have this effect [that the Senate is unavailable to fulfill its advice-and-consent role], we need not decide whether the President could make a recess appointment during a three-day intrasession recess.  This Office has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment.

Op. at 9, n. 13.  In other words, what's important isn't the three-day recess between pro forma sessions, but the 20-day recess (which is a "recess" under the Recess Appointments Clause) punctuated by pro forma sessions (which do not allow the Senate to fulfill its constitutional role of advice and consent).  (Under this reasoning, the pro forma sessions could be spread across any number of days--1, 2, or 15.  What matters is whether the Senate can conduct business, or, more precisely according to the OLC, whether the President determines that the Senate can conduct business--see below.)

The Office cited its own precedent, historical practice, and the Senate Judiciary Committee's own position in support of this functional approach.

Under the approach, the Office concluded that "the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause."

The OLC rejected arguements that the Senate employed pro forma sessions, with full legal effect as other sessions, in other contexts (because those contexts are different); that the Senate itself, under its rules, should be able to determine when it's open for business (because that determination can't trump the Constitution); that based on experience the Senate is, in fact, open for business during pro forma sessions (because the Senate said here "no business conducted," and because the President gets to determine this); that precedent on the pocket veto should constraint the President's recess appointment authority (because the purposes are different); and that the Justice Department (through then-SG Kagan) took a different position on NLRB appointments in 2007 (because SG Kagan's letter, like this OLC opinion, did not answer the question whether an intrasession recess of three days or less constitutes a "recess" under the Recess Appointments Clause).

SDS

The Supreme Court Recognizes the Ministerial Exception in Hosana-Tabor Evangelical Lutheran Church and School

In a unanimous and somewhat narrow opinion today, the United States Supreme Court in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws.   Justice Thomas wrote a short concurring opinion; Justice Alito authored a much longer concurring opinion, in which Justice Kagan joined.

The litigation was the focus of a well attended and lively "Hot Topics" panel at the AALS meeting a few days ago, exploring the multi-layered doctrine and ambiguous facts.

One problem is the status of Cheryl Perich as a minister eligible for any "ministerial exception."  Chief Justice Roberts declined to provide a test, but reversed the Sixth Circuit's finding that Perich was not a minister.  Perich was a "called teacher" at a school who performed the same duties as a "lay teacher."  The Sixth Circuit and the EEOC found it relevant that Perich's "religious duties consumed only 45 minutes of each workday" and "the rest of her day was devoted to teaching secular subjects."   Roberts, however, wrote that the issue should not be "resolved by a stopwatch."  Instead, the Court considered the fact that the Hosana-Tabor had issued Petrich a "diploma of vocation" according her the title "Minister of Religion, Commissioned."

Another factual issue regarded Ms. Perich's dismissal as an employee.  Ms. Perich developed narcolepsy, was asked to resign, refused, and later stated that she had spoken to an attorney.  The School terminated her on the basis of her insubordination and threat to take legal action.  She filed a charge with the EEOC based on a claim of retaliation under the Americans with Disabilities Act (ADA).  Justice Alito's concurring opinion discusses the relevance of "retaliation" under the First Amendment Religion Clauses:

Hosanna-Tabor discharged respondent because she threatened to file suit against the church in a civil court.This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. In Hosanna-Tabor’s view, respondent’s disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith. Respondent does not dispute that the Lutheran Church subscribes to a doctrine of internal dispute resolution, but she argues that this was a mere pretext for her firing, which was really done for nonreligious reasons.

Altio then notes that such a pretextual argument would mean that "a civil court—and perhaps a jury—would be required to make a judgment about church doctrine."

While the concurring opinions avail themselves of the language of religious "autonomy" - - - a controversial concept especially in light of contemporary clergy sexual abuse issues - - - the Court's opinion avoids such language.  The Court specifically rejects the government's "parade of horribles" including retaliation for reporting criminal misconduct or testimony.  As the Court states,

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.

Given such language, commentators can surely criticize the case as carving out another exception, this time a "religious exemption," from anti-discrimination statutes a majority of the Court find unappealing.

While the Court's opinion relies on both the Establishment Clause and the Free Exercise Clause, stating that both "bar the government from interfering with the decision of a religious group to fire one of its ministers," those familiar with First Amendment Free Exercise Clause doctrine might wonder about precedent.  Specifically, one might question the relevance of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) - - - the peyote case - - - in which the Court declared that free exercise does not insulate against a neutral law of general applicability.  The Court did distinguish Smith:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. [Citing Smith] (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

Thus, the Court found the contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses, as the government argued, to be without merit.  On one reading, this distinction protects religious institutions more than individuals.  On another, more cynical, reading, this distinction protects majority religious affiliation more than minority religious affiliation.  (Alito's concurring opinion is worth reading in that it stresses the religious specificity of "ministers" and seeks to broaden it).  The Court's reading of "outward physical acts" and "internal church decisions" may be workable, but it does veer close to the "autonomy" concept the Court avoided.

RR
[image: Martin Luther by Lucas Cranach der Ältere, 1529, via]