Tuesday, April 22, 2014
The Court's opinion in Schuette v. BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary), clearly upheld Michigan's Proposal 2, enacted as Article I §26 of the Michigan Constitution barring affirmative action in state universities and subdivisions. The plurality opinion for the Court was authored by Justice Kennedy, and joined by Chief Justice Roberts and Justice Alito. Chief Justice Roberts also authored a brief concurring opinion. Justice Scalia's concurring opinion was joined by Justice Thomas. Justice Breyer also wrote a concurring opinion. Justice Sotomayor's impassioned dissent was joined by Justice Ginsburg. Justice Kagan was recused.
The state constitutional amendment was a reaction to the Court's opinion in Grutter v. Bollinger (2003), upholding the University of Michigan Law School's use of diversity in admissions. But since Grutter, the Court has been decidely less friendly to affirmative action, as in Fisher v. University of Texas.
Recall that the en banc Sixth Circuit majority had relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969). At oral arguments, the Justices had seemed hostile to that theory.
Justice Kennedy's plurality opinion for the Court carefully rehearses the cases, but it is probably his rhetoric that is most noteworthy:
This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.
As for Justice Scalia's opinion, it admits that the "relentless logic of Hunter and Seattle would point to a similar conclusion in this case" as the Sixth Circuit understood. However, both Hunter and Seattle should be overruled. Justice Breyer, concurring, would distinguish Hunter and Seattle because Schuette "does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another."
It is Justice Sotomayor's dissent, joined by Justice Ginsburg, that displays the most heft. At more than 50 pages and almost as lengthy as all the other opinions combined, Sotomayor's opinion is an extended discussion of equal protection doctrine and theory, as well as the function of judicial review. In her last section, she also addresses the "substantive policy" of affirmative action and the difference it makes.
The stark division among the Justices is clear. Sotomayor writes that "race matters." Scalia reiterates that the constitution is "color-blind." Roberts implies that racial "preferences do more harm than good." And Kennedy invokes a First Amendment right to debate race:
Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. . . . The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. . . . It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
Given this passage, perhaps it is not surprisingly that Justice Kennedy does not cite Romer v. Evans - - - which he authored in 1996 - - - in today's plurality opinion in Schuette. In Romer v. Evans, Kennedy had this to say about Colorado's Amendment 2, which prohibited the enactment of anti-discrimination laws on the basis of sexual orientation:
It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
The Court heard oral arguments today in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements. As we explained when the Court granted certiorari in January, the case centers Article III. The Sixth Circuit determined that the case was not ripe because although Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List because it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review." It could also not show its speech was chilled; indeed representatives from the organization stated they would double-down.
This is not to say that the First Amendment was entirely absent from today's arguments. Arguing for Susan B. Anthony List, an anti-abortion organization, Michael Carvin referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia. During Eric Murphy’s argument, on behalf of the State of Ohio, there were references to United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, with Justice Alito (who first mentioned the case) as well as Justices Scalia and Sotomayor participating in that discussion.
But Article III concerns, the subject of the grant of certiorari, dominated. But which Article III concerns specifically? As Justice Ginsburg asked: "Do you think this is a matter of standing or ripeness?" Michael Carvin's reply deflects the doctrinal distinctions and seeks to go to the heart of his argument:
In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.
Analogies abounded. Justice Sotomayor asked why the injury in this case wasn't as "speculative" as in Clapper v. Amnesty International USA decided in early 2013 in which the Court denied standing to Amnesty International to challege domestic surveillance under FISA? On the other hand, the challengers in Holder v. Humanitarian Law Project did have standing, based on a credible threat of prosecution" based upon 150 prior prosecutions. But, as the Deputy Solicitor General noted in answer to a query from Chief Justice Roberts and quoting from Ohio's brief, under the Ohio statute between 2001 and 2010 there were "a little bit over 500" proceedings based on the state false statements law.
The context of an election was discussed at several junctures. Another election cycle is approaching and election cycles themselves are short periods of intense action and when they conclude the issues can be moot.
Despite the references to Younger v. Harris, federalism was more anemic than robust. The notion that the state supreme court should be given an opportunity to construe the false statement law provoked laughter, with Chief Justice Roberts remark "Well, that will speed things up" as a catalyst.
If the oral argument is any indication, it seems that the federal courts will have a chance to consider the merits of the First Amendment challenge to the Ohio statute.
Thursday, April 17, 2014
With the announcement of the disbanding of the "Demographics Unit" in the NYC Police Department, some might think that litigation we've previously discussed about Muslim surveillance after 9/11, such the dismissal of a complaint about surveillance in New Jersey and federal litigation in New York, is no longer viable.
An editorial from the Board of the New York Times today points to the larger (and longstanding) issues beyond the particular "Demographics" unit:
This problem dates back to the 1960s and ’70s, when the department’s infamous “Red Squad” conducted what civil rights lawyers described as illegal surveillance of groups like the Black Panthers, who were acquitted on charges of conspiring to blow up department stores and police stations. The case became a class-action suit that included other political groups and was named for a plaintiff, Barbara Handschu.
Under a 1985 settlement, the city agreed to court-supervised investigation guidelines that were then loosened after the Sept. 11, 2001, attacks.
The editorial recommends that the city agree
to reinstate a provision of the original Handschu agreement that calls for an authority that includes high-level Police Department officials and a citizen appointee to review investigations into individuals or groups engaged in political activity. The point is not to obstruct those investigations, but to ensure that they are warranted and consistent with the Constitution.
Tuesday, April 15, 2014
In a very brief order in Zogenix v. Patrick, federal district judge Rya Zobel enjoined the Massachusetts Emergency Order prohibiting prescriptions of "hydrocodone bitartrate product in hydrocodone only extended release formulation," i.e., the controversial opiate Zohydro ER.
Judge Zobel wrote:
The FDA endorsed Zohydro ER’s safety and effectiveness when it approved the drug. When the Commonwealth interposed its own conclusion about Zohydro ER’s safety and effectiveness by virtue of DPH’s emergency order, did it obstruct the FDA’s Congressionally-given charge?
I conclude that it did. The FDA has the authority to approve for sale to the public a range of safe and effective prescription drugs—here, opioid analgesics. If the Commonwealth were able to countermand the FDA’s determinations and substitute its own requirements, it would undermine the FDA’s ability to make drugs available to promote and protect the public health.
Thus, the judge found that it was preempted. Judge Zobel issued a preliminary injunction prohibiting the state from enforcing its emergency order, although it stayed its injunction until April 22, 2014.
Does this mean that no state can further regulate any FDA approved drug? Even in the contraception area?
Matt Ford writes over at The Atlantic that there's an irony in rancher Cliven Bundy's land claim against the federal Bureau of Land Management, now brewing in Nevada. That's because the very state constitution that Bundy so forcefully defends (in the spirit of states' rights, state sovereignty, and the like) contains a "paramount allegiance" clause, enshrining federal supremacy right there in the document. Here it is, from Article I, Section 2, in the Declaration of Rights:
All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizens is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.
Ford explains that the clause originated in Nevada's first constitutional convention in 1863, and that state constitutional framers, overwhelmingly unionists, retained it in 1864.
Nevada isn't the only state with a Paramount Allegiance Clause. As Ford explains, Reconstruction-era state constitutions throughout the South had one. While most were dropped in subsequent revisions, some states, like Mississippi and North Carolina, still have it.
Drew Cohen recently published A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa in the Northwestern Journal of International Human Rights. The interview covers transformative constitutionalism (including judicial transformation and the role of judges) and current constitutional issues in South Africa, with some background and context for the uninitiated. It's a terrific piece on the current and future state of South African constitutionalism; it has some gems on comparative constitutionalism, as well.
Here's a clip of the Chief Justice's response to Cohen's question whether South African judges should be "umpires":
Given our background and our Constitution, judges do not have the luxury to sit back and pretend that we do not have serious challenges, which can be addressed through a passive justice system. I do not think we can afford to be the type of umpires Chief Justice Roberts had in mind.
Whatever we, as judges, do must facilitate nation-building so far as the case makes it possible by actively addressing the socioeconomic challenges that still confront certain sectors of the community as well as addressing the position of women in every sector of our society. Whereas that may not be feasible for judges in the U.S., it must [be the case] in South Africa. We have a different set of challenges that require judges to be somewhat proactive in the manner in which they approach their judicial responsibilities.
On the use of foreign law:
Once our jurisprudence gets settled, once it gets to the point that everyone can say that it is fairly well developed, there will be very little reason to rely as much as we used to on the jurisprudence of other countries. With that said, obviously, we will still need to have some regard to the latest developments in comparable jurisdictions. This is particularly true with regards to the area of socioeconomic rights and property law.
On closing the gap between reality and an aspirational Constitution:
What the Court can do, however, is interpret the Constitution in a manner so as to ensure that every official who has a constitutional responsibility to close that gap . . . are held accountable.
I think that the Court, however, has done fairly well in its efforts to close that gap. Look at our judgments dealing with socioeconomic rights[,] . . . health issues[,] . . . housing[,] . . . natural resources . . . .
On the next big issues:
The next major court battles will involve the agricultural sector. If you look at the agricultural sector then you will realize that a very large percentage of commercial farmers are still those from the previously advantaged group . . . . For the few [previously disadvantaged] that have received land through the government's redistribution system, it does not look like enough was done to empower them to be able to use the land productively. So, I think a lot needs to be done in the area of land redistribution but this must occur in a very, very slow and careful process.
In its opinion National Legal Services v. India, the Supreme Court of India has recognized the constitutional rights of transgender persons, including the right not to be denominated as either "male" or "female."
The opinion by K.S. Radhakrishnan begins with an invocation of the "trauma, agony and pain which the members of Transgender community undergo" but rather quickly also invokes the cultural roots and importance of the community: "TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts."
The judgment rests on an interpretation of several provisions of the Constitution of India, including Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty). The judgment engaged in some originalist reasoning that broadly interpreted "sex" to include sex-stereotyping:
Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.
Given this interpretation, the Court not suprisingly ruled
We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.
The Court has some interesting discussions of dress and grooming as an aspect of gender which included references to US cases and is further discussed here.
The Court also specifically disavowed any relationship between its present judgment in National Legal Services v. India and the controversial opinion Koushal v. NAZ Foundation decided in December in which the Court - - - or as the Court states here "A Division Bench of this Court" reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional:
we express no opinion on it [Kousal] since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.
In a separate judgment, A.K. Sikiri did not mention the sodomy decision in Koushal v. Naz Foundation, but the judgment's expansive rhetoric could be read as an implicit disagreement with that decision as well as serving as a further butressing of today's judgment. The concurring opinion elaborated on the importance of TG persons and communities to India's culture. It referenced Immanuel Kant, John Rawls, Amartya Sen as providing the "jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs." It explicitly stated the "dynamic" and "living character" of the Constitution and its interpretation. It considered judicial review in the context of democracy (including, implicitly, "sexual democracy") and decidedly opined that it is the role of the judiciary to "ensure access to justice to the marginalized section of the society," and that undoubtedly "TGs belong to the unprivileged class which is a marginalized section."
The judgment not only requires the government to recognize a "third gender" and to grant "legal recognition of their gender identity such as male, female or as third gender," but also directs the government to take positive steps in education, health provisions, and "seriously address" various problems.
April 15, 2014 in Comparative Constitutionalism, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)
Monday, April 14, 2014
In the widely anticipated opinion in Henry v. Himes, Judge Timothy Black has ruled that Ohio Const. Art. XV, § 11 and Ohio Rev. Code § 3101.01(C) denying legal recognition to the marriages of same-sex couples validly entered in other jurisdictions violates the Fourteenth Amendment.
Recall that Judge Black previously issued an opinion in Obergefell v. Kasich with a similar conclusion, although that opinion was limited to the particular plaintiffs. Judge Black's preliminary injunction ruling in Obergefell was the first post-Windsor decision on same sex marriage, and interestingly used some of Justice Scalia's dissenting language to support his reasoning.
While Obergefell involved a person who was dying, the plaintiffs in Henry are same-sex couples expecting children or with children. The four plaintiff couples, who entered into valid marriages in other jurisdictions, seek to have the names of both parents recorded on their children’s Ohio birth certificates and a declaration that Ohio’s refusal to recognize valid same-sex marriages is unconstitutional. Judge Black relied heavily on his previous rationale in Obergefell, and again found that while marriage is a fundamental right, the Supreme Court has not explicitly recognized it as such, and "the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding into – and in fact erasing – Plaintiffs’ already- established marital and family relations." Again, Judge Black footnotes Professor Steve Sanders work on the liberty interest in having one's marriage recognized.
In the equal protection analysis, Judge Black does advance a distinct rationale for "heightened scrutiny" given that the children's birth certificates are involved. He writes that the "Supreme Court has long held that disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause," citing Plyler v. Doe, 457 U.S. 202 (1982). But, as in Obergefell, he also explicitly found that even if rational basis were applied, the Ohio provisions failed to satisfy it.
On the last page of Judge Black's opinion is the text of a song, "Happy Adoption Day" (1992). For some, this will seem appropriate and celebratory. For others, this will seem indecorous and treacly. Judge Black's previous statements have displeased at least one state representative - - - who has introduced a resolution in the Ohio legislature calling for the House of Representatives of Congress to initiate impeachment proceedings.
In its divided opinion in National Association of Manufacturers v. Securities and Exchange Comm'n, a panel of the DC Circuit Court of Appeals held that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring a company to disclose if its products were not "DRC conflict free" violated the First Amendment.
DRC - - - Democratic Republic of the Congo - - - has not only "endured war and humanitarian catastrophe," it is also the site of extraction of certain minerals - - - gold, tantalum, tin, and tungsten - - - that are used in a variety of familiar objects (cell phones, automobile parts, and golf clubs) and finance the parties engaged in the violence. In an attempt to discourage use of these so-called "conflict minerals," Congress required companies to disclose its products as not “DRC conflict free” in the report it files with the SEC and also post the statement on its website.
Reversing the district judge, who had upheld the law, the panel majority stated that "rational basis review" in the First Amendment context is the "exception, not the rule." The panel majority rejected the argument that the disclosure was one of "purely factual and uncontroversial information":
it is far from clear that the description at issue—whether a product is “conflict free”—is factual and non- ideological. Products and minerals do not fight conflicts. The label “conflict free” is a metaphor that conveys moral responsibility for the Congo war. It requires an issuer to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups. An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility. And it may convey that “message” through “silence.” By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment.
[citations omitted]. Thus, the panel majority found that Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), was inapposite. Instead, under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the intermediate scrutiny standard for commercial speech, the mandated disclosure failed.
The panel, however, was divided on this issue. While the court unanimously upheld various SEC regulations challenged on administrative law grounds, Judge Srinivasan dissented on the First Amendment issue. Specifically, Judge Srinivasan contended that this opinion should be held in abeyance "pending the en banc court’s decision" in another case "rather than issue an opinion that might effectively be undercut by the en banc court in relatively short order." The case in question is American Meat Institute v. United States Dep't of Agriculture in which the DC Circuit so recently ordered an en banc hearing. Recall that American Meat Institute, requiring labeling of meat products by country of origin, also considered the relationship between Zauderer v. Office of Disciplinary Counsel and Central Hudson - - - and that is the very question certified for en banc review. Judge Srinivasan was a member of the American Meat Institute panel.
Given this posture, it seems certain that the Government will seek en banc review.
Friday, April 11, 2014
The Eleventh Circuit ruled this week in Brown v. U.S. that a magistrate judge lacked authority to enter final judgment on a criminal defendant's motion to vacate his sentence.
The case revisits, but then dodges, the issue whether a magistrate's ruling on a motion under 28 U.S.C. 2255 violates Article III.
The court said that the Magistrate Act, 28 U.S.C. 636(c), which authorizes magistrates, with the consent of the parties, to enter a final judgment on any "civil matter," did not authorize a magistrate to enter a final judgment on a Section 2255 motion to vacate a sentence. While the court recognized a Section 2255 motion was a civil matter, it said that Section 2255 wasn't a "civil matter" for purposes of Section 636(c).
Why? According to the court, because to so conclude could result in a violation of Article III.
The court recognized that Section 636(c) is constitutional on its own--that is, that magistrates are constitutional in "civil matters." But it said that special problems with a magistrate ruling on a Section 2255 motion made Section 636(c) constitutionally suspect. In particular, when a magistrate enters a final judgment on a Section 2255 motion, that magistrate sits "in a quasi-appellate capacity, with the power to vacate the judgment the district court entered in the case." "It is axiomatic that non-Article III judges [magistrates] may not revise or overturn Article III judgments." Moreover, if a magistrate were to enter a final judgment on a Section 2255 motion, there's no procedure for district court review. Yet, "the authority of a district court to review the magistrate judge's decision, even if neither party invokes such authority, is essential to ensuring that Article III values are protected."
These problems aren't new. The Fifth Circuit recognized them, too, and in 2001 in U.S. v. Johnston ruled that a delegation of Section 2255 motions to a magistrate violated Article III. (Prof. Ira Robbins (AU/WCL) helpfully explains all this in this 2002 article in the Federal Courts Law Review. Both the article and Brown contain nice histories of magistrates in the Article III courts.)
But the Eleventh Circuit followed a different tack. Instead of ruling that the constitutional problems with this kind of delegation resulted in a violation of Article III, it avoided the constitutional question by ruling (stretching and straining) that Section 2255 motions aren't "civil matters" for the purpose of Section 636(c) delegations to magistrates, and therefore as a matter of statutory construction the magistrate lacked authority to enter a final judgment on the Section 2255 motion.
For Brown, all this means that the magistrate's final judgment on his Section 2255 motion is invalid, and that he'll have to start over and have an Article III judge, not a magistrate, rule on his motion.
The Third Circuit ruled yesterday in U.S. v. Cooper that the delegation to the Attorney General in the Sex Offender Registration and Notification Act, or SORNA, to determine whether SORNA applied to pre-Act offenders did not run afoul of the nondelegation doctrine.
The ruling aligns the Third Circuit with the eight other circuits that have addressed the question.
Cooper was convicted in Oklahoma state court on three counts of rape and was paroled in January 2006. Congress passed SORNA in July 2006. Cooper was charged with failing to register in 2012.
Cooper argued that SORNA's delegation to the AG to determine whether the Act applied to pre-Act offenders was an unconstitutional delegation. SORNA says that "[t]he [AG] shall have the authority to specify the appliability of the requirements of this chapter to sex offenders convicted before the enactment of this chapter or its implementation . . . ."
Cooper's argument picked up on a suggestion by Justice Scalia, dissenting a couple years ago in Reynolds v. U.S. That case held that SORNA did not require pre-Act offenders to register before the AG validly specified that its registration requirements applied to them. Justice Scalia wrote that the delegation "sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable." We posted on the case and Justice Scalia's concern here.
But the Third Circuit rejected Cooper's claim. The court wrote that SORNA gave the AG sufficient guidance to pass the intelligible principle test:
In enacting SORNA, Congress laid out the general policy, the public agency to apply this policy, and the boundaries of the delegated authority. This is all that is required under the modern nondelegation jurisprudence.
The court also rejected Cooper's invitation to craft a new nondelegation test--a more rigorous "meaningfully constrains" standard--"[u]ntil the Supreme Court gives us clear guidance . . . ."
The D.C. Circuit ruled today in Communities for a Better Environment v. EPA that a group of environmental organizations lacked standing to sue the EPA for its failure to regulate carbon monoxide based on its impact on "public welfare" under the Clearn Air Act. In short, the court ruled that the plaintiffs couldn't demonstrate that the EPA's failure to issue secondary standards for carbon monoxide caused the effects of global warming that the plaintiffs complained about.
The ruling contrasts with Massachusetts v. EPA, where the Supreme Court ruled that a state had standing to challenge the EPA's denial of a petition asking the EPA to regulate carbon dioxide. The Court said that the state sufficiently demonstrated that it stood to suffer harms resulting from global warming (like loss of coastline from rising sea levels) if the EPA did not regulate carbon dioxide.
This case involved a different kind of regulation and a different air pollutant, but the same core theory of standing. The Clean Air Act directs the EPA to set secondary standards for one of six air pollutants (including carbon monoxide) at a level "requisite to protect the public welfare." The "public welfare" includes welfare of animals, the environment, and climate, among other things. (The Act also requires the EPA to set primary standards for the six air pollutants at a level "requisite to protect the public health," that is, human health.) The EPA decided in 2011 not to issue secondary standards for carbon monoxide, because the Agency determined that secondary standards for carbon monoxide were not needed to protect the public welfare--that standards for carbon monoxide wouldn't protect animals, the environment, or climate. The EPA issue primary standards for carbon monoxide, however.
The plaintiffs sued, challenging (1) the EPA's primary standards for cabon monoxide and (2) the EPA's decision not to set secondary standards.
In response to the government's motion to dismiss on the second claim, the plaintiffs argued that they had standing under Massachusetts v. EPA. The court disagreed, saying that the plaintiffs didn't demonstrate the connection between the EPA's decision not to set standards and the harm they alleged. The court explained:
But even assuming for the sake of argument that Massachusetts v. EPA grants standing for plaintiffs other than States, petitioners here have failed to establish the causation element of standing. Petitioners claim that EPA's decision not to set a secondary standard for carbon monoxide will worsen global warming and in turn displace birds that one of petitioners' members observes for recreational purposes. But petitioners have not presented a sufficient showing that carbon monoxide emissions in the United States--at the level allowed by EPA--will worsen global warming as compared to what would happen if EPA set the secondary standards in accordance with the law as petitioners see it. Moreover, citing and analyzing many scientific studies, EPA explained that carbon monoxide's effects on climate change involve "significant uncertainties."
The court also rejected the plaintiffs' claims against the primary standards on the merits.
Thursday, April 10, 2014
Derek Muller (Pepperdine) argues over at Jurist.org that the Tenth Circuit dramatically overreached in its recent ruling in Kerr v. Hickenlooper. Recall that the court ruled in that case that a group of state legislator had standing to challenge under the Guaranty Clause the state's Taxpayer Bill of Rights, or TABOR, which requires a popular vote before the legislature can raise taxes, and that the case did not raise a political question. We posted here.
Muller says that court's conclusions on both standing and political question are out of step with longstanding Supreme Court jurisprudence and, if upheld, would result in "extraordinary consequences":
It would create many more opportunities for individual legislators in each state--and perhaps those in both houses of Congress--to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands. Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves--which has been a large part of most states' governance for the past hundred years. Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves--effectively ushering in a power shift away from the people--and their ability to enact policy objectives via popular vote--and towards the federal court system.
The Tenth Circuit remanded the case, and the district court is preparing for trial. We'll surely see this one again.
Wednesday, April 9, 2014
Jessica Mason Pieklo writes over at RH Reality Check about the pair of challenges to the Affordable Care Act set for oral argument next month (on May 8) in the D.C. Circuit. One of those cases challenges the government's accommodation to the so-called contraception mandate for religious nonprofits--the same issue in the Little Sisters case and, more recently, Notre Dame's case at the Seventh Circuit. (Those rulings were on injunctions against the accommodation pending appeal. Recall that the Supreme Court issued an order in the Little Sisters case, allowing the organization simply to write a letter to the HHS Secretary stating its religious objection to the contraception mandate, pending appeal on the merits to the Tenth Circuit. In contrast, the Seventh Circuit denied Notre Dame's request for an injunction pending appeal. The difference between the two cases: Notre Dame had already complied with the government's accommodation (and the court couldn't undo its compliance), whereas Little Sisters had not.)
The other case, Sissel v. HHS, is less well known. It challenges the universal coverage provision, or the so-called individual mandate. Plaintiffs in the case argue that as a tax (recall the Court's ruling in the ACA case) the provision had to originate in the House of Representatives under the Origination Clause. But it originated in the Senate. Plaintiffs say it's therefore invalid.
Pieklo writes that President Obama's recent appointees will have an impact on the court, and on these cases. That's because the panel that will hear arguments in these cases next month includes Judge Nina Pillard and Judge Robert Wilkins, the recent Obama appointees that were held up in the Senate but then confirmed after Senate Democrats used the nuclear option and disallowed a filibuster of federal court nominees (except Supreme Court nominees). Judge Rogers is also on the panel.
Northwestern University Law School just wrapped up its 2013-2014 colloquium series on Constitutional Design in the Muslim World--an outstanding series of presentations convened by Profs. Erin Delaney and Kristen Stilt. The program's web-site contains a list of presenters with links to their papers, videos of presentations, links, and a blog. Check it out.
Monday, April 7, 2014
Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?"
The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer. The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today.
Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights," posting her written remarks on the UK Supreme Court site. Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws? Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without." She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself:
Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.
This leads her to proclaim:
If you go into the market place you cannot pick and choose which laws you will obey and which you will not.
This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.
Another difference: The arguments before the UK Supreme Court are televised live.
April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
"The amount of data available to law enforcement creates a type of honey pot—a trap that lures and tempts government to use data without limits." What should the constitutional limits be? And what is their source? In a new article, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, available on ssrn (and forthcoming in Notre Dame Law Review) Law Prof Deven Desai (pictured) argues that constitutional protections for association - - - rooted in the Fourth Amendment as well as the First - - - is a method for disciplining governmental access to both forward and backward-looking surveillance in our current age of "data hoarding."
The mechanisms for information gathering have taken different forms at different times in history, but regardless of the precise method or when the acts occur, we can see the goal: suppression of association. Mail has been read, student speech and political actions watched, library records obtained, membership in the Communist Party scrutinized, a list of individuals to detain in case of a national security emergency created, a fifteen year program to gather information about “the Communist Party, the Ku Klux Klan, antiwar groups, civil rights groups, women’s rights groups, and gay rights groups” created, and civil rights leader Martin Luther King threatened depending on various perceived threats and surveillance programs. These practices now include the FBI’s gathering of publicly available information “directly,” through third parties, or if handed over “voluntarily” by third parties. The NSA’s recent activities map to the same behaviors that threaten and attack associational freedom. The NSA has targeted online activities of alleged Muslim radicalizers—those who offer troubling speeches—to secure information, such as about viewing pornography online, to discredit or embarrass the speakers. That tactic is not about law enforcement. Just as those in power have gone after the Democratic-Republican Societies, war protestors, civil rights activists, and others questioning the government, the tactic is about intimidation and suppression. One might try and argue that all this activity is only for national security and anti-terror investigations and thus permitted under current laws. But NSA activities have not been cabined to national security interests. The NSA is not allowed to spy on domestic targets. It has done so anyway. The NSA’s “Associational Tracking Program” has collected purely domestic communication information including from and to whom a call is made, the length of the call, and when the call is made, on a daily basis for later analysis by the NSA. This data has come directly from telecommunication providers such as Verizon, which complied with a court order. 165 In addition, the NSA has hacked telecommunication lines to gain access to communications and metadata passing through Google and Yahoo data centers.
Ultimately, Desai contends that "pervasive surveillance turns us into sheep." But the First Amendment has not been sufficient to protect against surveillance because a "mypoic" view of the First Amendment as requiring expressive speech misses the associational aspects at stake. Additionally, the associational aspects of the Fourth Amendment are often neglected, but should be considered "core."
Given the continuing revelations about widespread surveillance, Desai's intervention and suggested reorientation of doctrine is certainly worth a serious read.
Sunday, April 6, 2014
Need to find a particular document or search for a particular name in the trove of items made available from the National Security Agency? Or just want to look around?
The ACLU now has a handy database, available here.
As the announcement explains:
This tool will be an up-to-date, complete collection of previously secret NSA documents made public since last June. The database is designed to be easily searchable – by title, category, or content – so that the public, researchers, and journalists can readily home in on the information they are looking for.
We have made all of the documents text-searchable to allow users to investigate particular key words or phrases. Alternatively, the filter function allows users to sort based on the type of surveillance involved, the specific legal authorities implicated, the purpose of the surveillance, or the source of the disclosure. For example, you can have the database return all documents that both pertain to "Section 215" and "Internal NSA/DOJ Legal Analysis."
An important tool for scholars and advocates.
In her article "An Imminent Substantial Disruption: Towards a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline" (forthcoming in Dartmouth Law Journal; available in draft on ssrn), Allison Kort (pictured) revisits the problems and issues with the landmark 1969 First Amendment case of Tinker v. Des Moines Independent Community School District.
Kort argues that courts "frequently make an end run around Tinker by deferring to the school board on the “reasonableness” of the school’s action, or deciding these cases on the basis of the speech’s content," even as neither "students nor school officials enjoy clear awareness of students’ rights to free speech and expression, and students are subject to personal opinions of the school boards."
Certainly Kort's contention is demonstrated by cases such as B.H. v. Easton Area School District (the "I heart boobies bracelet" case) in which a divided Third Circuit en banc held the students had First Amendment rights and the United States Supreme Court denied certiorari. It's also illustrated by the Confederate flag wear cases, with the United States Supreme Court likewise recently denying certiorari. And Mary Beth Tinker, who is "on tour" encouraging students to exercise their First Amendment rights would undoubtedly agree that there needs to be more awareness.
Kort's solution is a revitalization of Tinker, so that courts actually apply Tinker (rather than its progeny - - - Fraser, Hazelwood, and Morse - - - that "chip away" at Tinker) and to apply the "substantial disruption" standard to mean a "imminent danger that a compelling state interest will be violated."
While not all school speech cases involve attire and grooming regulations, a substantial portion do. Kort's article will therefore be of special interest to advocates and scholars working in the continuing and contentious field of student dress codes and "dressing constitutionally."
Saturday, April 5, 2014
Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan. Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.
We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser. Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.
The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism. Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).
Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir. Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing). All three were U.S. citizens.
Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others). The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.
Judge Collyer ruled that special factors counseled against a Bivens remedy. Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:
In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.
Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military. The need to hesitate before implying a Bivens claim is particularly clear. Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces. It is the Executive's position that AQAP is affiliated with al-Qa'ida.
. . .
Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.
. . .
Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen. Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.
Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.
The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense. Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case. The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.
Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy. She wrote that without these facts, the court "would have denied the motion to dismiss."
April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)