Friday, September 19, 2014

Eleventh Circuit Upholds City Increase in Pension Fund Contributions

The Eleventh Circuit ruled this week in Taylor v. City of Gadsden that a city's increase in the mandatory contribution paid by public employees to the city's pension fund did not violate the Contract Clause of the U.S. or Alabama Constitutions.

The case arose when the City of Gadsden increased the mandatory contribution rate to the city pension fund by city firefighters from 6 percent of their salary to 8.5 percent of their salary in order to cover some of the city's pension shortfall. The city took the action pursuant to a state law that allowed, but did not require, cities to increase the mandatory contributions of public employees to their pension funds. Firefighters sued, claiming that the increase violated the Contract Clause of the U.S. Constitution and the parallel provision in the Alabama Constitution (interpreted in lock-step with the federal constitutional provision).

The Eleventh Circuit ruled that the Contract Clause didn't even apply to the city, because the city's act was not "an exercise of legislative power"; instead, it was merely a "particular item of business coming within [its] official cognizance . . . relating to the administrative business of the municipality," a "creature of state statute," but not exercising the legislative power of the state. Because Gadsden wasn't "passing any 'law,'" it "was, at bottom, 'doing nothing different than what a private party does,'" and was not subject to the Contract Clause.

The court said that even if Gadsden was subject to the Contract Clause, there was no violation here. That's because there was no contract, and relevant statutory provisions did not create an obligation not to raise the contribution rate. (Any statutory obligation went to the benefits under the pension plan, not the contributions to it.) Finally, the court said that "at most . . . the City has breached a contract, not impaired one." And "[b]ecause no state action has denied plaintiffs the possibility of a damages remedy, 'it would be absurd to turn [the] breach of contract . . . into a violation of the federal Constitution.'"

September 19, 2014 in Cases and Case Materials, Contract Clause, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Ornstein on Statutory Interpretation and Halbig

Norm Ornstein reviews Second Circuit Chief Judge Robert Katzmann's new book, Judging Statutes, over at The Atlantic. Along the way, Ornstein says why courts should use legislative intent in interpreting ambiguous statutory language--like the Affordable Care Act's language that led to Halbig v. Burwell.

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According to Ornstein, Judge Katzmann is "the clearest heir to both Corwin and Hand" because of his "judicial temperament, keen mind, and respect for the law and politics." In his new book, Judge Katzmann sets out a case for using legislative intent in statutory interpretation. He draws on some of his own cases to illustrate "the ways in which dutiful judges can come to opposite conclusions." Still, as Ornstein writes, "in most controversial cases, there are clear ways to look at legislative history, the words of a bill's architects or managers, and the overall body of the law to divine the plain purpose."

As to Halbig, recall that a three-judge panel of the D.C. Circuit ruled that the IRS exceeded its authority under the Affordable Care Act in extending tax credits to individuals who purchased health insurance on a federally operated exchange. According to the court, that was because the ACA provides for tax credits for purchasers on state exchanges, but not federally operated exchanges. The Fourth Circuit issued a ruling the same day upholding the credits.

The D.C. Circuit used a narrow textualist approach; the Fourth Circuit used a broader textual approach and legislative intent. The D.C. Circuit case is now going en banc.

September 19, 2014 in Books, Cases and Case Materials, News | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2014

Ninth Circuit Again Upholds School Ban of American Flag on Cinco de Mayo

Recall that in February of 2014, a panel of the Ninth Circuit in Dariano v. Morgan Hill Unified School District rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.

The en banc Ninth Circuit has now denied en banc review, over a dissent, and issued an amended panel opinion which adds several paragraphs of analysis.

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flag jacket via

Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Tallman and Bea, argued that the reaction of other students to the flag-clothing wearing students amounted to a " heckler’s veto" which the panel wrongly validated.  Moreover, the dissent argued that this created a circuit split with the Seventh Circuit, relying on Zamecnik v. Indian Prairie School District No. 204, decided in 2011. Judge Posner's opinion in Zamecnik concluded that the students wearing the "Be Happy Not Gay" t-shirt was protected by the First Amendment (although  importantly Posner did not highlight any possible violence in that case).   The dissenting opinion from en banc review by O'Scannlain does not include the Sixth Circuit's Bible Believers v. Dearborn County decided less than a month ago in which the court extensively analyzed the heckler's veto doctrine and found the speech could be limited.  As to the "confederate flag" cases on which the original panel relied, the dissent from en banc review by O'Scannlain distinguished situations dealing  "solely with a symbol that is 'widely regarded as racist and incendiary.'” 

In its amended opinion, the panel added three paragraphs that presumably address some of these concerns.  The amended opinion now includes:

We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.” [fn 7] But the language of Tinker and the school setting guides us here. Where speech “for any reason . . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech. Tinker, 393 U.S. at 513. To require school officials to precisely identify the source of a violent threat before taking readily-available steps to quell the threat would burden officials’ ability to protect the students in their charge—a particularly salient concern in an era of rampant school violence, much of it involving guns, other weapons, or threats on the internet—and run counter to the longstanding directive that there is a distinction between “threats or acts of violence on school premises” and speech that engenders no “substantial disruption of or material interference with school activities.” Id. at 508, 514; see also id. at 509, 513.

 

In the school context, the crucial distinction is the nature of the speech, not the source of it. The cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. See, e.g., Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38, 38 n. 11 (10th Cir. 2013) (observing that “Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities . . . . This argument might be effective outside the school context, but it ignores the ‘special characteristics of the school environment,’” and that the court “ha[d] not found[] case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.” (quoting Tinker, 393 U.S. at 506)); Zamecnik, 636 F.3d at 879–80 (looking to the reactions of onlookers to determine whether the speech could be regulated); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1272 (11th Cir. 2004) (looking to the reactions of onlookers to determine whether a student’s expression “cause[d] (or [was] likely to cause) a material and substantial disruption”) (alterations and internal quotation marks omitted).

 

Perhaps no cases illustrate this principle more clearly than those involving displays of the Confederate flag in the school context. We respect the American flag, and know that its meaning and its history differ greatly from that of the Confederate flag. Nevertheless, the legal principle that emerges from the Confederate flag cases is that what matters is substantial disruption or a reasonable forecast of substantial disruption, taking into account either the behavior of a speaker—e.g., causing substantial disruption alongside the silent or passive wearing of an emblem—or the reactions of onlookers. Not surprisingly, these cases also arose from efforts to stem racial tension that was disruptive. Like Dariano, the reasoning in these cases is founded on Tinker. See, e.g., Hardwick, 711 F.3d at 437 (Fourth Circuit case upholding school officials’ ban on shirts with labels like “Southern Chicks,” “Dixie Angels,” and “Daddy’s Little Redneck,” and the Confederate flag icon, even though the bearer contended that hers was a “silent, peaceable display” that “even drew positive remarks from some students” and “never caused a disruption” because “school officials could reasonably forecast a disruption because of her shirts” (internal quotation marks omitted)); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir. 2009) (noting that “[o]ther circuits, applying Tinker, have held that administrators may prohibit the display of the Confederate flag in light of racial hostility and tension at their schools”); Barr v. Lafon, 538 F.3d 554, 567–68 (6th Cir. 2008) (noting the “disruptive potential of the flag in a school where racial tension is high,” and that “[o]ur holding that the school in the circumstances of this case reasonably forecast the disruptive effect of the Confederate flag accords with precedent in our circuit as well as our sister circuits”).[fn8]

Whether these additional paragraphs are sufficient to ameliorate the concerns that might be raised in a petition for certiorari is now the question.

 

September 18, 2014 in Courts and Judging, Equal Protection, Federalism, First Amendment, History, Opinion Analysis, Race, Speech | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 17, 2014

Seventh Circuit Gives Wisconsin Voter ID a Go-Ahead

A three-judge panel of the Seventh Circuit last week threw a wrench into the November election in Wisconsin by staying an earlier district court ruling and injunction against the state's voter ID law, thus allowing the law to take effect immediately. The problem: some people have already cast absentee ballots without providing ID. More: some 11,800 voters requested absentee ballots before the panel's ruling, and thus under the assumption that they wouldn't have to provide ID. According to the Milwaukee Journal Sentinel, the director of the state Government Accountability Board is directing clerks to contact voters who requested an absentee ballot and tell them they need to provide an ID. He said that absentee ballots from voters who do not provide IDs won't be counted.

And this says nothing about the inevitable confusion at the polls.

There's another problem, the original one that sparked the litigation in the first place. That is, some 300,000 registered voters in Wisconsin, mostly poor and disproportionately racial minorities, lack a qualifying ID for voting, according to U.S. District Court Judge Lynn Adelman, who ruled in an exhaustive opinion last April that the law was unconstitutional and enjoined its enforcement. 

The Seventh Circuit panel order undoes Judge Adelman's injunction. The panel wrote that

[a]fter [Judge Adelman's] decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. This reduces the likelihood of irreparable injury . . . . The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.

While the panel's brief, one-page order is not a final ruling on the merits (that will come "in due course"), it presages the likely final merits ruling. 

But the most recent move by the plaintiffs may preempt that. The plaintiffs asked the full en banc Seventh Circuit to review the panel's decision. The full bench would have to act quickly, because the absentee election is already underway.

The Seventh Circuit is the same court that upheld Indiana's voter ID law, later also upheld by the Supreme Court in Crawford v. Marion County. (That law, according to the panel last week, is "materially identical" to Wisconsin's law). But Judge Posner (who was on the panel in the Indiana case, but not on the panel in the Wisconsin case) wrote last year that Indiana's voter ID law is "now widely regarded as a means of voter suppression rather than fraud prevention," suggesting that his opinion on voter ID changed. We may find out, if the full Seventh Circuit takes up the case.

 

September 17, 2014 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Mary Bonauto and Sarah Deer Named MacArthur Fellows

This year's MacArthur Fellowships included some well known advocates for social justices whose work involves constitutional law.

Mary Bonauto (pictured below) is one of the 21 people selected as a 2014 MacArthur Fellow for her work as a "civil rights lawyer."

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Here's the beginning of the announcement:

Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies have led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.

More description as well as a video on the MacArthur site here.

LawProf Sarah Deer (pictured below) is another of the 21 recepients.

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Here's the beginning of the announcement:

Sarah Deer is a legal scholar and advocate leveraging her deep understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.

More description as well as a video on the MacArthur site here.

Additionally, John Henneberger of Texas Low Income Housing Information Service and Jonathan Rapping of Gideon's Promise were named as fewllos.

 

such as securing fair and affordable housing (John Henneberger), protecting civil rights (Mary L. Bonauto), and ensuring equal access to justice for both the victims of crime (Sarah Deer) and the accused (Jonathan Rapping); - See more at: http://www.macfound.org/press/press-releases/21-extraordinarily-creative-people-who-inspire-us-all-meet-2014-macarthur-fellows/#sthash.qdsCJsvk.dpuf

September 17, 2014 in Current Affairs, Gender, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

RFRA Frustrates Child Labor Investigation

Senior Judge David Sam (C.D. Utah) ruled last week that the Religious Freedom Restoration Act prevented the court from compelling a FLDS Church member from answering questions related to a Labor Department investigation into child labor violations.

The ruling does not necessarily end the Labor Department investigation, though. Indeed, as Judge Sam wrote, DOL may be able to get the information from other sources.

The case arose when DOL sought an order compelling a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, to answer questions in the course of an investigation over the use of child labor in harvest activities at a pecan ranch in Hurricane, Utah. The FLDS member, Vernon Steed, invoked the First Amendment (free exercise), objecting to DOL's questions about the internal affairs of the FLDS Church. Judge Sam wrote that the claim sounded more like a Religious Freedom Restoration Act claim, and applied the higher level of scrutiny under the RFRA.

Judge Sam wrote first that a court order would substantially burden Steed's religious beliefs, because Steed said that he made a vow "not to discuss matters related to the internal affairs or organization of the [FLDS]," and that giving testimony would violate that vow. DOL challenged the sincerity of this belief, but Judge Sam, citing Hobby Lobby, didn't question it.

Judge Sam then wrote that DOL failed to satisfy the RFRA standard (again citing Hobby Lobby) because it had other ways to get the information it sought. For example, DOL could get information from the corporation or individuals who contracted to manage the ranch.

The ruling may not shut down the investigation, because DOL may, indeed, be able to get the information it needs from these other sources. But even if it can, the ruling underscores the heightened, strict scrutiny standard under the RFRA (over the lower, rational basis standard in Smith) , and illustrates its reach.

September 16, 2014 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

CFP: Richmond Journal Law and the Public Interest

From the editors of Richmond Journal Law and the Public Interest:

The Richmond Journal of Law & the Public Interest is seeking submissions for the Spring Issue of our 2014-2015 volume.  We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.

We currently have four total openings for articles for our Spring Issue.  As a Journal that centers in large part on the Public Interest, we are seeking at least one article that touches upon current Constitutional Issue(s) and the effects that the issue(s) may have on the National Public Interest.  For a sense of what we are seeking for our general issues, feel free to visit here.

If you would like to submit an article for review and possibly publication, or if you have any questions at all, please do not hesitate to contact our Lead Articles Editors, Rich Forzani and Hillary Wallace, at rich.forzaniATrichmond.edu and hillary.wallaceATrichmond.edu.

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September 16, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2014

District Judge Finds Ohio's Prohibition of Campaign Falsehoods Violates First Amendment

In a 25 page opinion  replete with bolded underlined language, Judge Timothy Black held Ohio's statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.  

Recall that the United States Supreme Court heard the case as Susan B. Anthony List v. Driehaus  last Term and unanimously held that the case was ripe for review, reversing the Sixth Circuit.  The Court's opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia. 

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"The Mouth of Truth"
woodcut by Lucas van Leyden circa 1514
via

Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: "we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth." (bold underlining in original).  However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).

Doctrinally, Judge Black relies on United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, noting that the four Justice plurality held that strict scrutiny should apply and concluding that the federal statute was not necessary to achieve compelling interests and that less restrictive alternatives existed.

In considering the compelling government interest prong, Judge Black distinguished McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature.  This "right to be anonymous" seemed to rest in part on the government interest in ensuring truthfulness, but as Judge Black writes:

However, in McIntyre, the Supreme Court did not describe the state interest in preventing false speech as “compelling” or even “substantial,” saying only that it was “legitimate” and has “special weight during election campaigns.”  McIntyre expressly refrained from any decision regarding the constitutionality of Ohio’s political false-statements laws. Moreover, Defendants cite no evidence that the false statements laws are “actually necessary” to achieve their interest. To be actually necessary, there must be a direct causal link between the restriction imposed and the injury to be prevented. Id.6 Here, instead, Defendants admit that “the consequences of deceptive false statements on elections are ... inherently difficult to quantify.”

[citations omitted].

 As to the narrowly tailored prong, Judge Black found that the statute chilled protected truthful speech, especially important in the political context.  Judge Black again emphasizes that the remedy for false speech is true speech, even as he notes that he is not convinced that "counterspeech will always expose lies," especially "in the wake of Citizens United."  Nevertheless, the problem of government-determined truth is problematical:

we certainly do not want the Government (i.e., the OEC) deciding what is political truth anyway, for fear that the Government might persecute those who criticize the Government or its leaders. Ultimately, whether or not it is possible to create a system by which impartial citizens could identify lies from the truth is unclear. What is crystal clear, however, is that Ohio’s statutes fail in this respect. The process is inherently flawed.

Judge Black issued both a preliminary and permanent injunction so that the decision is a "final, appealable Order."  Whether or not Ohio officials will choose to return to the Sixth Circuit remains to be seen.

September 15, 2014 in Campaign Finance, Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Senate Fails to Advance Campaign Finance Amendment

Senate Republicans unanimously blocked the campaign finance constitutional amendment proposed by Democrats.  The measure, S.J. Res. 19, failed 54 to 42, short of the 60 votes necessary to close debate and move to a vote on the merits. 

The proposed amendment would have overturned Citizens United and allowed Congress and state legislatures to regulate campaign contributions and spending.  It read:

Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

Republicans argued that the measure infringed on free speech.  Senator Ted Cruz captured the point when he said that SNL producer "Lorne Michaels could be put in jail under this amendment for making fun of any politician."  That seems pretty unlikely, but still possible under the language.  Politifact gave it a "half-true," based on interviews with several ConLawProfs.

September 12, 2014 in Campaign Finance, Congressional Authority, First Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)

Thursday, September 11, 2014

Third Circuit Upholds New Jersey's Ban on Sexual Conversion Therapy Against First Amendment Challenge

Robson

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Third Circuit has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in its unanimous 74 page opinion in King v. Christie, Governor of New Jersey.  

The Third Circuit affirmed the district judge's extensive opinion from last November and reached the same conclusion as the Ninth Circuit did when reviewing a very similar California statute in  Pickup v. Brown, albeit on different grounds.

  640px-Nellie_Bly-Mad-House-07The Third Circuit's opinion by Judge D. Brooks Smith (and joined by Judges Vanaskie and Sloviter),  specifically disagrees with the Ninth Circuit's conclusion that SOCE is "conduct" rather than speech, a conclusion the New Jersey district judge essentially adopted.  The Third Circuit credits some of the reasoning of Ninth Circuit Judge O'Scannlain's "spirited dissent" from en banc review in Pickup as well the Supreme Court's Holder v. Humanitarian Law Project.  The Third Circuit rejected the principle that there is a sustainable line between utterances that are speech and those that are treatment:

consider a sophomore psychology major who tells a fellow student that he can reduce same- sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely this advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct” when the speaker is a licensed counselor.”  . . . .  As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.

Yet, the court concludes that although such utterances are speech, they are not "fully protected by the First Amendment" because they occur in a professional context.  In speech that occurs pursuant to the practice of a licensed profession - - - including fortune-tellers, a case on which the court relies - - - the speech is entitled to less protection. 

Nellie_Bly-Mad-House-15Precisely, it is entitled to the same level of protection as commercial speech, although importantly the Third Circuit is careful not to hold that this professional speech is commercial speech.   In applying the intermediate scrutiny type standard derived from commercial speech, the court finds that the statute "directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”

The court's distinction between professional and nonprofessional speech, however, may  suffer from the same lack of bright lines that it finds with the conduct/speech distinction.  The court stresses that professional speech occurs in the context of "personalized services to client based on the professional's expert knowledge and judgement."  But in rejecting an argument that the New Jersey statute makes a viewpoint distinction, the court states that the statute

allows Plaintiffs to express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a very specific way—by actually rendering the professional services that they believe to be effective and beneficial.

The Third Circuit's opinion also considered the challenge that the statute was vague and overbroad, noting that the Plaintiffs themselves claim to specialize in the very practice they argue is not sufficiently defined.  Similarly, the Third Circuit rejected the Free Exercise Clause claim, affirmed the district judge's conclusion on lack of standing to raise the claims of the minor clients (with some disagreement as to reasoning), and also affirmed on the intervention of an organization.

However, it is the free speech claim that it is the center of this controversy, with the Third Circuit carving out a "professional speech" category, in a disagreement with the Ninth Circuit (and on similar issues with other circuits as it notes), but clearly upholding the statute.

 [images from "Ten Days in a Mad House, Nellie Bly, via]

September 11, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

Fellowships at the United States Supreme Court and at Princeton

Two fellowships worth considering.

640px-Jan_van_Eyck_059First, the annual Supreme Court Fellows program has a fast-approaching deadline of November 14, 2014.  There are four positions, one of which is at the Supreme Court.  More information is here.  Professor Stacie Strong has a brief discussion of the program published in Judges' Journal, available on ssrn.

Second, Princeton University’s Program in Law and Public Affairs (LAPA) awards six fellowships (one reserved for an early career fellow on humanities-realted subjects) for "research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance."  The deadline is November 3, 2014 and more information is here.

[image via]

September 10, 2014 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 9, 2014

Obama Tells Congress He Doesn't Need Approval for ISIS Campaign

According to The Hill, President Obama told congressional leaders today that he doesn't need congressional approval for his campaign against ISIS, details to be announced tomorrow night. 

While he told the congressional leaders he would welcome congressional action that demonstrated a unified front, the president told the bicameral, bipartisan group "he has the authority he needs to take action against [ISIS] in accordance with the mission he will lay out in his address," according to the White House.

Participants in the meeting--the House Speaker and Minority Leader, and the Senate Majority and Minority Leaders--didn't say anything about the need for congressional approval afterward.

September 9, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Senate Committee Considers Sharon Block for NLRB

The Senate Health, Education, Labor and Pensions Committee held a hearing today on President Obama's nomination of Sharon Block to the NLRB.  Block was one of the recess-appointees to the NLRB that the Supreme Court struck this summer in Noel Canning.  Her nomination this time is going through the regular Appointments Clause process.

If confirmed, Brown would replace Nancy Schiffer and become the third Democrat on the five-member Board.

Republicans oppose Brown because of her political ideology and the direction of the Board with President Obama's appointments.  They also see her appointment as an end-run around Noel Canning (given that Noel Canning struck her recess appointment).

Still, the full Senate will likely confirm her.  That's because of the filibuster rules change that allows most presidential nominees to move forward to an up-or-down majority vote in the Senate.

Of course, if nominees like Brown hadn't faced a Republican filibuster in the first place, President Obama wouldn't have recess-appointed them; instead, they would have been confirmed through the ordinary appointment process--exactly what's happening to Brown now.  In that way, after all the drama and attention to President Obama's recess appointments in Noel Canning, we're right back where we might have started: majority (not super-majority) confirmation of presidential nominees through the ordinary appointment process.

 

September 9, 2014 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, September 7, 2014

Ohio Federal Judge Rules State's New Voting Scheme Violates Equal Protection

In his 71 page  opinion in Ohio State Conference of the NAACP v. Husted, Judge Peter Economus has issued a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.

This opinion is the latest installment in the early voting controversies in Ohio.  Recall that Judge Economus issued an order and opinion two years ago  enjoining the enforcement of new Ohio legislation and specifically restoring in-person early voting on the three days preceding Election Day for all eligible voters.   The Sixth Circuit, in its opinion in Obama for America v. Husted, upheld the injunction.  

580px-Seal_of_the_Ohio_Elections_Commission.svgAfter that controversy, the Ohio legislature enacted SB 238, which had the effect of eliminating the so-called "Golden Week," the period when citizens could both register to vote and cast their ballots at the same time.   The Ohio Secretary of State, Jon Husted, also issued directives setting uniform early in-person (EIP) voting hours for the entire state, eliminating evening voting hours and most Sunday voting during the EIP periods.

Much of the judge's opinion considers the various expert and other evidence regarding the effect of these changes.  Ultimately, Judge Economus found that the changes violated the equal protection rights of certain groups, relying heavily on the Sixth Circuit's opinion in Obama for America v. Husted and Bush v. Gore.

Here's the judge's penultimate paragraph on the equal protection claim:

The Court must now weigh the significant burdens placed on voting by SB 238 and Directive 2014-17 against the offered justifications. As stated above, the Court has found these justifications to be relatively hollow, and, in some cases, not necessarily supported by logic. Accordingly, while the burdens imposed on the voting rights of African Americans, lower income voters, and the homeless are not severe, it cannot be said that they are outweighed by the offered justifications. For instance, there is virtually nothing in the record tending to justify why a uniform voting schedule could not include evening voting hours and additional Sunday voting, especially considering that such voting opportunities have been successfully offered by individual counties in past elections. While the Defendants have frequently noted that Ohio’s system of absentee voting is one of the most expansive in the entire Country, one of the touchstones of the Fourteenth Amendment’s Equal Protection guarantee in the context of voting rights is that actions of a State must “avoid arbitrary and disparate treatment of the members of its electorate.” Bush v. Gore, 531 U.S. 98, 105 (2000). Here, despite the expansiveness of Ohio’s voting system, the weakness of the offered justifications supporting SB 238 and Directive 2014-17 render them essentially arbitrary action when viewed against the burdens they impose on groups of voters. Such action is prohibited by the Equal Protection Clause. Thus, the Court’s conclusions regarding the Plaintiffs’ Equal Protection claim are easily summarized as follows: SB 238 and Directive 2014-17 arbitrarily make it harder for certain groups of citizens to vote.

On the nonconstitutional claim, §2 of the Voting Rights Act, the judge likewise found that there was a substantial likelihood that the challengers could prevail on the merits of their claim.

The judge entered a preliminary injunction regarding early voting for the November 2014 election, the first provisions of which are effective September 30.  If the state is to appeal, it will need to move quickly.

September 7, 2014 in Elections and Voting, Equal Protection, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

D.C. Circuit to Rehear Obamacare Challenge

The full D.C. Circuit today agreed to rehear Halbig v. Burwell, in which a three-judge panel of the court previously struck the IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income requirements.  Today's order also vacates that earlier ruling.  It means that the full, en banc D.C. Circuit will get a bite at the apple, and that the earlier panel ruling is wiped from the books.  The court will hear arguments on December 17.

Recall that the earlier panel ruling striking the tax credit was in direct conflict with a Fourth Circuit ruling the same day upholding the tax credit.  Today's order also removes that circuit split.

We last posted on the case, with background explanation, here.  In short, the case involves an IRS rule that extends tax credits to purchasers of health insurance on a federally operated exchange.  Opponents of the rule argue that the plain text of the ACA limits credits to purchasers on a state-operated exchange.  The government argues that the broader text of the ACA and its purposes show that the credit applies to purchasers on both state and federal exchanges. 

A ruling striking the credits for purchasers on a federal exchange would deal a major blow to the Affordable Care Act and its goal of universal coverage, and could put lower-income purchasers in a pinch.  That's because purchasers in states that declined to establish their own exchanges (and thus triggered the federal government to establish a federal exchange) wouldn't qualify for a credit, and may not be able to afford insurance without it, yet would still be required to purchase it.  An amendment to the ACA could easily solve the problem (again, if a court struck the credits for purchasers on federal exchanges), but congressional opponents of the ACA, and thus Congress, would never go for it--at least unless and until these cases are resolved in favor of the government (when the point would be moot, anyway). 

September 4, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Declares Same-Sex Marriage Prohibitions of Two States Unconstitutional

The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker were just last week.  Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional. 

The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.

Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion. 

441px-Richard_Posner_at_Harvard_UniversityPosner begins by implying the state laws before the court are outliers:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.

The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment.  Here's Judge Posner introducing the concept that

comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach"  - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it.  For Posner:

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

9780674802803Judge Posner doesn't cite his own 1992 book, Sex and Reason, but he could have.  And the rhetorical style and much of the reasoning in this opinion echoes the book, which was widely debated.

Judges Williams and Hamilton apparently agreed.

If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.

 

 

September 4, 2014 in Courts and Judging, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

Second Circuit Arguments on NSA Spying on C-Span

The Second Circuit heard oral arguments yesterday in a challenge to the NSA program involving mass collection of telephone call details under Section 215 of the Patriot Act.  The full argument was broadcast on C-Span and is available here.  (The embed code wasn't cooperating.)

The case, ACLU v. Clapper, is one of three cases challenging the program now pending in the circuit courts; the other two are Smith v. Obama (in the Ninth Circuit) and Klayman v. Obama (in the D.C. Circuit).  The Electronic Frontier Foundation has a backgrounder here, with links to case materials; the ACLU has a backgrounder on Section 215 here; the ACLU's page on ACLU v. Clapper is here.

Challengers in the cases argue that Section 215 violates the First and Fourth Amendments, but face justiciability questions before the courts will get to the merits.  That's because Section 215 prohibits a telecommunication company subject to a 215 order from telling its customers about it, so without more a customer wouldn't know.  Still, the district courts in Smith and Klayman ruled that the plaintiffs had standing based on the sheer breadth of the program.

September 3, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Louisiana Federal Judge Upholds State's Same-Sex Marriage Ban

Breaking the spate of federal decisions that have invalidated state same-sex marriage prohibitions, federal district judge Martin Feldman of the Eastern District of Louisiana today upheld the constitutionality of that state's ban in his 32 page  opinion in Robicheaux v. Caldwell. 

Judge Feldman rejects the equal protection claim (the "most hefty constitutional issue") and the due process claim, as well as rejecting any heightened scrutiny within those claims and any extension of Windsor to state same-sex marriage bans. In applying rational basis, the judge found that the "central state interest of linking children to an intact family formed by their biological parents" and of "even more consequence," the "legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus," was sufficient.

The theoretical underpinnings of the judge's rationale are a preference for states' rights,  democratically enacted provisions, tradition, and a judicial practice of being "circumspect." 

750px-Louisiana_map_Colton_1856

Judge Feldman's opinion credits notions of formal equality and the slippery slope.  For example, in rejecting the analogy to Loving v. Virginia, Judge Feldman writes:  "no analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women."   This evenhandedness was precisely the argument Virginia unsuccessfully advanced in Loving when it argued that under its miscengenation statute, both whites and blacks would be prosecuted.  At another point, Judge Feldman states:

Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some "evolving understanding of equality," where what is marriage will be explored. And as plaintiffs vigorously remind, there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society. But that is an incomplete answer to today's social issue. When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

Judge Feldman acknowledged that his decision departed from the recent trend, but quoted from the dissenting opinion in the Fourth Circuit's decision in Bostic v. Schaefer.

As Judge Feldman also stated:

Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court. The decision of this Court is but one studied decision among many. Our Fifth Circuit has not yet spoken.

Whether or not the case is appealed to the Fifth Circuit, the issue seems sure to be heard by the United States Supreme Court.

September 3, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 2, 2014

Seventh Circuit Upholds Indiana's Right-to-Work Law

A sharply divided three-judge panel of the Seventh Circuit today upheld Indiana's "right to work" law against federal preemption and other constitutional challenges.  The ruling means that Indiana's law stays on the books--a serious blow to unions in the state.  But the division invites en banc review and even Supreme Court review of this bitterly contested issue.

The case, Sweeney v. Pence, tested the constitutionality of Indiana's "right to work" law, enacted in February 2012.  That law prohibits any person from requiring an individual to join a union as a condition of employment.  As relevant here, it also prohibits any person from requiring an individual to "[p]ay dues, fees, assessments, or other charges of any kind or amount to a labor organization" as a condition of employment.  In short, it prohibits mandatory "fair share" fees--those fees that non-union-members have to pay for the collective bargaining activities of a union (but not the union's political activities), in order to avoid free-riding. 

The law deals a blow to unions, because it allows non-members to escape even representational fees (or "fair share" fees, those fees designed to cover only a union's collective bargaining and employee representational costs, but not political expenditures), even as federal law requires unions to provide "fair representation" to all employees, union or not.  This encourages "free riders," non-member employees who take advantage of union activities but decline to pay for them.

The plaintiffs, members and officers of the International Union of Operating Engineers, Local 150, AFL-CIO, argued that the National Labor Relations Act preempted Indiana's law and that the law violated various constitutional individual-rights protections.  The preemption argument turned on two provisions of the NLRA, Sections 8(a)(3) and 14(b).  Section 8(a)(3) provides,

It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any labor organization.

Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein . . . .

Section 14(b) says,

Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The Union argued that under this language a state may ban an agency-shop agreement (a requirement that all employees pay full union dues, whether or not they are members), but not a lesser union-security arrangement (like a fair share requirement).

The majority disagreed.  The court said that Indiana had broad rights to restrict union-security agreements, including fair share.  It first pointed to Supreme Court cases (Retail Clerks I and II) that held that Section 14(b) allowed a state to ban an agency-shop agreement.  It then read the term "membership" in Section 14(b) quite narrowly, to include non-members who were required to pay fair share fees.  (That's right: the court said that non-members were part of the "membership" under Section 14(b).)  The court said that the final clause of Section 14(b) therefore leaves room for states to ban complete union-security agreements (like agency shops) and also lesser union-security agreements (like fair share).  It said that some states had these laws on the books when Congress passed Section 14(b), and that some states have them on the books today.  "The longevity of many of these statutes, coupled with the lack of disapproval expressed by the Supreme Court, suggests to us that Indiana's right-to-work law falls squarely within the realm of acceptable law." 

The majority also rejected the plaintiffs' individual-rights arguments, under the Takings Clause, the Contracts Clause, the Ex Post Facto Clause, the Equal Protection Clause, and the Free Speech Clause.

Judge Wood dissented.  She argued that under the majority's approach, Indiana's law amounted to an unconstitutional taking (because, along with the duty of fair representation, it required the union to do work for non-members without pay).  She said the better approach (under constitutional avoidance principles)--and the one more consistent with the language of the NLRA and Retail Clerks I and II)--said that the NLRA preempted Indiana's law.

The sharp disagreement on the panel, the uncertain state of the law, and the contentiousness of the underlying issue all suggest that this case is ripe for en banc review and, ultimately, Supreme Court review.  If so, this case could be the next in a recent line of anti-union rulings chipping away at fair share.

September 2, 2014 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Daily Read: Gabriel Arkles Talking to (Con)LawProfs Talking to Trans* Students

Now that classes have begun, it's a good time for lawprofs to think about how we teach and interact with our students.

ArklesPublished in the on-line "Footnote Forum" of City University of New York's law review, Professor Gabriel Arkles(pictured) has some very specific things to say about the trans* and gender non-comforming students in our classes.  In his essay, Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty, Arkles provides details of practices that "need improvement" and often specific suggestions for change.  Here's one of special note for ConLawProfs:

Practice in need of change: In discussing Equal Protection doctrine, a constitutional law professor says, “But is sex really an immutable characteristic? Don’t some people get ‘sex changes’?” The class laughs, and the professor moves on.

This comment makes trans* people into the butt of a joke, assumes that no trans* people are in the room, gives no substantive attention to trans* issues in constitutional law, and plays into myths about trans* healthcare.

Arkles' essay is a thought-provoking and must-read this semester.

September 2, 2014 in Gender, Teaching Tips | Permalink | Comments (0) | TrackBack (0)