November 22, 2008
Saturday Evening Review: The Takings Clause
This year, like last, I debated whether or not to include the Fifth Amendment's "Takings Clause" in the Constitutional Law syllabus. On the one hand, the cases make fascinating reading and teaching; they connect to larger issues of constitutional rights, constitutional interpretation, and the balances between legislative (and regulatory) action and judicial role. On the other hand, the cases often rely on understandings extraneous to a constitutional law courses - property notions (e.g., ownership of airspace) or other complex arrangements ( e.g., escrow accounts maintained by lawyers and the interest such accounts earn). And this year, like last, I decided to include the takings class, although I decided to streamline the materials and cover - in one 90 minute class - both the difficult issue of regulatory takings (a bit less difficult after Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)) and the issue of public use as demonstrated by Kelo v. City of New London, Ct., 545 US 469 (2005).
If you likewise debate whether or not to cover the takings clause, this week's scholarly review is worth considering. Jeffrey Gaba, in his article, Taking Justice and Fairness Seriously: Distributive Justice and the Takings Clause, 40 Creighton L. Rev. 569 (2007), provides one of the more compelling arguments for including the takings clause in any constitutional law course.
This is not to say Professor Gaba's explicit task is urging constitutional law professors to include the subject in our courses - - - Gaba teaches Environmental Law at SMU Dedman School of Law and doesn't mention course coverage. Rather, Gaba is arguing that the philosophical issue of distributive justice (of interest, Gaba states, to "philosophers from Aristotle to Star Trek's Mr. Spock"), is converted into an issue of constitutional law by the Court's taking clause jurisprudence.
As he states in the conclusion:
For good or ill, the concept of the Takings Clause as a principle of distributive justice arises from the Supreme Court's own statements. The Supreme Court has made and repeated the claim that the Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
At a minimum, the Court should be aware of the consequences that follow from such a view.
Viewed through the lens of distributive justice, takings analysis gains a sharper focus on those factors that are relevant to assessing the “fairness” of imposing costs on the few to benefit the many. The logical implication of this view is a takings test which is no more clear or certain in application than the current muddle. Additionally it expressly requires the courts to engage in social and philosophical judgments that many would say are beyond their competence (used both in the sense of judges' institutional role and their intelligence). Perhaps most significantly, it suggests a limited role for the judiciary in policing the social judgments of legislators and could confine the Takings Clause, along with the Due Process Clause, to a limited role.
Id. at 593-4 (footnotes omitted).
Gaba's article is brief, but has a very good overview of the theories of distributive justice - - - thankfully rather quickly replacing Star Trek's Mr. Spock with Nobel Laureate Amartya Sen. For the most part, he seems to assume a reader's familiarity with takings clause doctrine, using it facilely to demonstrate his theoretical points. He does, however, provide what he calls the "two dirty little secrets" of the Takings Clause:
First, there is virtually no historical evidence on the intent that lay behind the adoption of the Taking Clause in the Fifth Amendment. Second, it was not until 1922 that the Supreme Court, in what was an extraordinary act of judicial activism, claimed that the Takings Clause acted to limit government regulatory authority.
Id. at 571.
Gaba's piece does not include a discussion of Kelo and "public use," but his observations about regulatory takings jurisprudence are easily extended. Highly readable and insightful, I'm putting this article in my course notebook to remind me why the takings clause is an important, if often difficult, unit on the constitutional law syllabus.
November 21, 2008
Fourth Circuit Denies Jefferson's Speech or Debate Claim
The Fourth Circuit upheld the lower court's denial of Congressman William J. Jefferson's motion to dismiss a pending indictment for multiple schemes in which he allegedly received bribes in exchange for his promotion of products and services to officials in Africa. The NYT Topics Page is here.
After the E.D. Va. grand jury returned the indictment, charging Jefferson with two counts of conspiracy and fourteen substantive offenses, Jefferson moved to dismiss, claiming that prosecutors presented testimony of his former and current staffers in violation of the Speech or Debate Clause. U.S. Const. art. I, sec. 6, cl. 1. The district court denied the motion, and a Fourth Circuit panel (Judges Niemeyer, King, Duncan) upheld.
The Fourth Circuit case is here. Check out page 8 for the staffers' testimony, and pages 16 to 26 for the analysis of the Speech or Debate Clause. And here's U.S. v. Brewster, the Court's leading case.
The court rejected Jefferson's argument that any mention of Speech or Debate material in a grand jury proceeding requires dismissal of all charges. The court distinguished U.S. v. Swindall, the 1992 Eleventh Circuit case, because "[t]he government . . . used legislative activities to prove an element of [Swindall's] perjury offenses." Not so here: "Jefferson has not contended that the Indictment references his legislative acts, or that a successful prosecution will require the government to prove such acts."
The court went on to quote Judge Butzner in the Fourth Circuit U.S. v. Johnson: "Bias of a grand jury may be manifested in several ways, but it has not been held to arise from the receipt of incompetent or constitutionally impermissible evidence." Thus in Jefferson, "[b]ounded by such precedent, we are likewise not entitled to review the grand jury record in Jefferson's case--the Indictment simply does not question any legislative acts."
The Teaching Assistant
Hello fellow profs! The semester is winding down, but it's not over yet! And, as you will see, there is no shortage of interesting stories to report.
First, a brief stop at Guantanamo Bay. SCOTUSBlog reports that the case managment order that D.C. District Judge Thomas Hogan entered last week is being challenged by the Justice Department. In other Gitmo news, another district judge ordered that five Bosnia prisoners at the prison by the Bay be released "forthwith."
Second, will the outgoing president use his Article II powers to issue pardons? In a funny - yet informative - article - Slate lists the possible pardon subjects, their transgressions, and ranks the likelihood of each person's pardon using a scale of one to four "get out of jail free" cards. (Scooter Libby receives four cards!) However, Senator Russ Feingold (D-WI) argues in a Salon.com posting that even if the President has extensive pardon powers, he should not pardon anyone alledged to be involved in his administration's possible criminality. The Senator states, "If President Bush were to pardon key individuals involved in the misdeeds of his administration, from warrantless wiretapping to torture to the firing of U.S. attorneys for political reasons, the courts would be unable to address criminality, or pass judgment on the legality of some of the president's worst abuses."
Third, is Hillary Clinton constitutionally eligible to serve as Secretary of State? If so, will she be paid the same amount as her predecessor? The answers are apparently yes and no. This story is a fun reminder about the minutia of the Constitution.
The Wall Street Journal reports that equality in the legal workplace still needs some work. The number of women in large firms tends to dwindle as the partnership year approaches. Moreover, women in the firms typically earn less than their male counterparts.
The state of New Jersey has settled a claim against the matchmaking/dating site eHarmony.com. The New Jersey suit argued that eHarmony violated state anti-discrimination laws by failing to provide match-making services to same sex couples. eHarmony has agreed to provide comparable services, albeit on a different, specialized site.
On the subject of same sex marriage, the VC reports that the District of Columbia may introduce a bill to legalize same sex unions in the District next year. Slate has a great Q & A on Prop 8 and other same sex marriage issues. Also, marriage is not the only equality issue concerning gays and lesbians at this time. There are many other issues of equality that will be pursued during the Obama administration.
And finally, on the topic of the District and Equal Protection of the "one person, one vote" kind, apparently the President Elect plans to bring back the "Taxation without Representation" license plates for the presidential limo. The President Elect is apparently a proponent of Congressional voting rights for the District. I'm sure that's a change everyone in D.C. can beleive in.
See you next week friends!
November 20, 2008
Court Orders Five G-Mo Detainees Released on Habeas
Judge Richard J. Leon of the U.S. District Court for the District of Columbia today ordered five Algerians released from Guantanamo Bay after nearly seven years of detention. Judge Leon ruled that a sixth was lawfully detained as an "enemy combatant." All six brought habeas claims (under Boumediene) challenging their status as "enemy combatants" and thus challenging their continued detention. NYT reports here.
Judge Leon's ruling is here.
As is now familiar, the government argued that it could detain petitioners as "enemy combatants" pursuant to the Authorization for Military Force and the President's Commander-in-Chief powers. The question for the court thus turned on whether the government showed, by a preponderance of the evidence, that petitioners were in fact "enemy combatants."
The government's evidence against them? Slim, to say the least. The court:
To support its claim that petitioners had a plan to travel to Afghanistan to engage U.S. and allied forces [and therefore were detainable "enemy combatants"], the Government relies exclusively on the information contained in a classified document from an unnamed source. This source is the only evidence in the record directly supporting each detainee's alleged knowledge of, or commitment to, this supposed plan. And while the Government has provided some information about the source's credibility and reliability, it has not provided the Court with enough information to adequately evaluate the credibility and reliability of this source's information. . . . Because I cannot, on the record before me, adequately assess the credibility and reliability of the sole source information relied upon, for five of the petitioners, to prove an alleged plan by them to travel to Afghanistan to engage U.S. and coalition forces, the Government has failed to carry its burden with respect to these petitioners. Unfortunately, due to the classified nature of the Government's evidence, I cannot be more specific about the deficiencies of the Government's case at this time.
Corporations as "persons" - The South Africa Con Court
The Constitutional Court of South Africa issued a judgment of interest to Americans struggling with notions of corporate rights as "persons" under the Constitution, especially the Fourteenth Amendment. In Weare and Another v Ndebele NO and Others (Case CCT15/08, 18 November 2008), the Court considered the constitutionality of a state government prohibition on corporations holding betting licenses.
As the Media Summary provides:
The case arises out of an agreement between the applicants. Betting World (Pty) Ltd carries on the business of bookmaking in eight of South Africa’s nine provinces. It does not do so in KwaZulu-Natal [a state in the nation of South Africa] because section 22(5) of the Ordinance provides that juristic persons – companies like Betting World – may not hold licences to engage in bookmaking in the province. Only natural persons, such as Mr Weare, are permitted to hold these licences in KwaZulu-Natal. In other provinces, both juristic and natural persons may hold licences. In terms of the agreement, Mr Weare was to sell to Betting World, conditionally, the bookmaking business he operates under his licence. The authorities in KwaZulu-Natal took the view that the agreement violated section 22(5), whereupon the applicants challenged the constitutionality of the section.
In a unanimous judgment written by Van der Westhuizen J, the Court held that section 22(5) did not breach the right to equality before the law protected by the Constitution. The regulation of gambling represented a legitimate government purpose. Different practical considerations might indeed apply to the regulation of juristic persons and natural persons, and so it was not irrational to treat the two differently in the interests of regulation. The fact that reform was being considered, and that an allegedly better policy might exist, did not show that the current law was irrational. Furthermore, the section did not amount to unfair discrimination.
The opinion is available as a pdf here.
Federalist Society: Supreme Court Retrospective
The Federalist Society published a special edition of Engage, its practice group journal, dedicated to a Supreme Court retrospective. The full journal is here.
Pieces of particular interest:
Ronald A. Cass, The Supreme Court's Standing Problem, page 4
Daniel E. Troy & Rebecca K. Wood, Federal Preemption at the Supreme Court, page 7
Thomas W. Merrill, Judicial Deference to Agency Action, page 16
Nelson Lund, Justice Kennedy's Stricter Scrutiny and the Future of Racial Diversity Promotion, page 20
Robert A. Levy, Anatomy of a Lawsuit: District of Columbia v. Heller, page 27
William E. Thro, Respecting the Democratic Process: The Roberts Court and Limits on Facial Challenges, page 54
November 19, 2008
California Prop 8 goes to Cal S Ct
The LA Times story is here.
The SF Chronicle story is here and states:
The court agreed today to review two related arguments by opponents of Prop. 8 - that the measure exceeds the legal scope of a ballot initiative by allowing a majority to restrict a minority group's rights, and that it violates the constitutional separation of powers by limiting judicial authority.
The justices also asked for arguments on whether Prop. 8, if constitutional, would nullify 18,000 same-sex weddings performed between when the court's marriage ruling took effect in mid-June and Nov. 4. Attorney General Jerry Brown, who will defend Prop. 8 as the state's chief lawyer, contends those marriages are legal, but sponsors of the initiative disagree.
The justices asked for written arguments to be submitted by Jan. 21. The court could hold a hearing as early as March, with a ruling due 90 days later.
Previous discussion on ConLawProf blog here.
Senate Judiciary Committee Report on Contempt Resolutions
The Senate Judiciary Committee just released a report (with minority views) to accompany the resolutions finding Karl Rove and Josh Bolton in Contempt of Congress for failing to appear and testify before the Committee in its investigation into the politicized dismissal of nine U.S. Attorneys.
The Committee web-site has a time-line of events, with links; the Committee Report is here. The section on Executive Privilege (section V. of the Report) starts on page 13; separation-of-powers issues run throughout.
I posted on similar issues in the House investigation and Committee on the Judiciary v. Miers and Bolton here.
Primer on Boumediene
Lyle Denniston at SCOTUSblog posted this excellent review of the cases, arguments, and issues in the courts this week (starting tomorrow) on executive detention, habeas, and release of detainees at Guantanamo Bay. Denniston cuts right to the point and sorts out the issues in the several cases before the courts in this very important week. I highly recommend this.
Chicago to have LGBTQA School? NOT SOON
The proposal to have a "GLBTQA" Pride Campus High School in Chicago, previously blogged here, and scheduled for a vote tonight, has reportedly been "dropped." According to an article in the ChicagoTribune.com:
The Chicago Board of Education was set to vote on the proposal Wednesday, but the educators who had been pushing the plan asked to be taken off the agenda late Tuesday.
The school initially was going to be called the School for Social Justice Pride Campus partly focusing on gay issues. But last week, organizers changed the name to the Solidarity Campus and broadened its focus to include all disenfranchised groups of students.
As late as Tuesday morning, some advocates were pushing the idea that the change was a good compromise. A few hours later, however, the group told Chicago Public School officials it would try to retool its ideas and ask for approval in a year.
President-Elect Obama and the Global Gag Rule
According to the Washington post, President-Elect Obama is expected to lift the "global gag rule." From the story, here is a brief run-down of the policy:
The new president is also expected to lift a so-called global gag rule barring international family planning groups that receive U.S. aid from counseling women about the availability of abortion, even in countries where the procedure is legal, said Cecile Richards, the president of Planned Parenthood Federation of America. When Bill Clinton took office in 1993, he rescinded the Reagan-era regulation, known as the Mexico City policy, but Bush reimposed it.
Cara at Feministe stated:
The Global Gag Rule literally kills thousands and thousands of women every year by putting already over-stretched clinics in an impossible position. . . . Repealing the Global Gag Rule is only a start, but it’s a huge first step towards a real culture of life — one that respects and cares for the lives of women.
While the president-elect will likely face some opposition to this decision, there are important reasons to consider a repeal of the decision, even if one opposes abortion. Jill, also of Feministe, reports:
The highest abortion rates occur in countries where birth control access is highly limited; worldwide, socioeconomic reasons are a leading factor in women choosing abortion. Low rates of abortion strongly correlate with universal health care, widely available contraception, and gender egalitarianism. There is little correlation between the legal status of abortion and the incidence of abortion — that is, there’s no evidence that countries where abortion is illegal have lower abortion rates than countries where it is legal.
While this issue likely focuses more on First Amendment issues rather than the actual substantive due process surrounding the right to privacy or to terminate a preganancy, this posting is shared with the hope that it might enrich and further your class discussion of those issues.
Obama on LGBT "civil rights"
The Obama Transition has released its plan entitled "Support for the LGBT Community," beginning with this sentiment:
"While we have come a long way since the Stonewall riots in 1969, we still have a lot of work to do. Too often, the issue of LGBT rights is exploited by those seeking to divide us. But at its core, this issue is about who we are as Americans. It's about whether this nation is going to live up to its founding promise of equality by treating all its citizens with dignity and respect."
-- Barack Obama, June 1, 2007
Specific proposals include an end to the Military's "don't ask, don't tell" policy, subject of a previous Saturday Evening review article here. On same-sex relationships and the Constitution, the proposal includes:
- Support Full Civil Unions and Federal Rights for LGBT Couples: Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.
- Oppose a Constitutional Ban on Same-Sex Marriage: Barack Obama voted against the Federal Marriage Amendment in 2006 which would have defined marriage as between a man and a woman and prevented judicial extension of marriage-like rights to same-sex or other unmarried couples.
There is much to report at this time . . .
We might have a new Attorney General. The word "might" is used because at this point, they are only "reports." We'll keep watching.
Of course, there are other important positions to fill. The Washington Post lists three persons being considered for the position of National Security Advisor. Speaking of generals, Colin Powell is being mentioned as a possible Secretary of Education.
USA Today reports on how the President Elect might approach civil rights issues relating to the African American community. Findlaw's Writ has a piece on what the future president's administation might mean for the tort reform movement.
What's that Justice Stevens? You don't plan on retiring? We don't care! The speculation game is too much fun to give up! The Providence (Rhode Island) Journal has an interview with First Circuit Judge Bruce Selya. Judge Selya notes that since 1975, all Supreme Court appointees have previously served as federal appellate judges. The judge suggests that President Elect Obama be the one to break this pattern.
That's all for now, but of course, we'll be back!
Federalist Society Conference
The Federalist Society's National Lawyers Convention is this Thursday through Saturday in Washington, D.C., information here. The theme is "The People and the Judiciary" and the general description provides:
American courts, on both the state and federal level, are playing an increasingly visible role in deciding issues of enormous importance. Using the theme of this year’s Convention, The People and the Judiciary, the Federalist Society will examine the role of the “least dangerous branch.” How, and by whom, should the judges who populate these various courts be selected? And for what period of time, and under what conditions, should judges be retained? Should their decisions be subject to review, revision and even reversal by the populace, or perhaps by the peoples’ elected representatives? And how can standards of judicial conduct be determined, monitored, and enforced, without impinging on judicial independence? Our four plenary panel sessions and various addresses will answer these and other questions.
Of special interest is the panel on "Civil Rights" which focuses on Heller and the Second Amendment, with speakers including:
- Prof. Nelson R. Lund, George Mason University School of Law
- Mr. Clark Neily, Institute for Justice
- Prof. Lucas A. Powe, Jr., University of Texas School of Law
- Prof. Adam Winkler, University of California, Los Angeles School of Law
- Moderator: Hon. Diarmuid F. O’Scannlain, United States Court of Appeals, Ninth Circuit
Also of special interest are two of the "showcase" panels on the power of the judiciary. One on Friday promises a lively discussion of the issue of Article III's life-tenure provision:
Showcase Panel II: Judicial Tenure: Life Tenure or Fixed Nonrenewable Terms?
The Supreme Court of the United States is the only major court of its kind in the world where justices have life tenure rather than serving for a term of years or subject to a mandatory retirement age. Not only has every other western democracy rejected life tenure, but forty-nine out of fifty states have rejected it for their state supreme courts as well. Is life tenure for U.S. Supreme Court justices a good idea, or is it an 18th Century anachronism? What can or should be done about the fact that the average tenure of Supreme Court Justices has increased from 15 to 27 years since 1970? Ought we to be concerned if vacancies on the Supreme Court open up only once every four years instead of once every two as happened between 1789 and 1970?
- Prof. Stephen B. Burbank, University of Pennsylvania Law School
- Hon. Charles J. Cooper, Cooper & Kirk, PLLC
- Prof. James Lindgren, Northwestern University School of Law
- Prof. David R. Stras, University of Minnesota School of Law
- Moderator: Hon. J. Harvie Wilkinson III, United States Court of Appeals, Fourth Circuit
The Saturday morning panel promises a consideration of the relationship between legislatures and the judiciary, including the state constitutional issues previously discussed on ConLawProf here and here:
Showcase Panel III: Second Look Doctrines: Should Congress be Empowered to Override the Court? Should Voters in State Initiatives and Referenda be Able to Override State Supreme Courts?
Some scholars have praised Canada, Britain, and Israel for having a form of judicial review where a legislative majority in a clear statute can override an erroneous high court ruling or suspend it from taking effect. The argument is that judicial review is inherently counter-majoritarian and undemocratic, so legislative majorities should be able to overrule erroneous Supreme Court decisions. Should Congress be able to override U.S. Supreme Court decisions the way it can override a presidential veto? What majority ought to be required for such an override? Ought state voters in initiatives and referenda be able, by majority vote, to amend state constitutions so as to override state supreme courts?
- Hon. Frank H. Easterbrook, United States Court of Appeals, Seventh Circuit
- Prof. Richard A. Epstein, University of Chicago Law School
- Prof. Neal K. Katyal, Georgetown University Law Center
- Moderator: Hon. Larry D. Thompson, Pepsico, Inc., and Former Deputy United States Attorney General
Not surprisingly, Justice Scalia will give the closing address, as well as participate in a book signing of Making Your Case: The Art of Persuading Judges.
November 18, 2008
Indictments - VP & former AG
CNN reporting that Vice President Dick Cheney and former Attorney General Alberto Gonzales have been indicted on separate charges related to alleged prisoner abuse in federal detention centers. FOX news reporting the same.
More on the Obama Justices
Ten picks for Obama's Supreme Court
by Justin Jouvenal, here, is one of the better pieces in this burgeoning genre. A nice list, brief bios, and great links. Worth reading.
Obama and NSA Wiretapping
The NYT reports today that the Obama administration will face an early test of its positions on executive authority and civil liberties as it sorts out its reponses to motions in the cases challenging the NSA wiretapping program. From the article:
When he takes office, Mr. Obama will inherit greater power in domestic spying than any other new president in more than 30 years, but he may find himself in an awkward position as he weighs how to wield it. As a presidential candidate, he condemned the N.S.A. operation as illegal, and threatened to fillibuster a bill that would grant the government expanded surveillance powers and provide immunity to phone companies that helped in the Bush administration's program of wiretapping without warrants. But Mr. Obama switched positions and ultimately supported the measure in the Senate, angering liberal supporters who accused him of bowing to pressure from the right.
Sarbanes-Oxley Headed for Court
SCOTUSblog reports that the Free Enterprise Fund will file a cert. petition after the D.C. Circuit denied en banc review of the panel decision in Free Enterprise Fund v. Public Company Accounting by a slim 5-4 margin.
The Fund brought this facial challenge under the Appointments Clause and separation of powers to Title I of the Sarbanes-Oxley Act, which established the Public Company Accounting Oversight Board under the authority of the SEC and with members appointed by the SEC and removable only for cause.
A divided (2-1) panel of the D.C. Circuit ruled that the Board violated neither the Appointments Clause nor separation of powers. The court:
We hold, first, that the Act does not encroach upon the Appointment power because, in view of the Commission's comprehensive control of the Board, Board members are subject to direction and supervision of the Commission and thus are inferior officers not required to be appointed by the President. Second, we hold that the for-cause limitations on the Commission's power to remove Board members and the President's power to remove Commissioners do not strip the President of sufficient power to influence the Board and thus do not contravene separation of powers, as that principle embraces independent agencies like the Commission and their exercise of broad authority over their subordinates.
I'll post the cert. filings when they come out.
Rehnquist Papers Released
Hathaway on Executive Agreements over Treaties
Professor Oona Hathaway (Boalt Hall) just published an ACS issue brief titled The Case for Replacing Article II Treaties with Ex Post Congressional-Executive Agreements. (The brief is adapted from her 20008 article Treaties' End: The Past, Present, and Future of International Lawmaking in the United States in the Yale Law Journal.)
Hathaway argues for the use of "ex post Congressional-Executive Agreements"--"approved by both houses of Congress after they are negotiated by the President"--over Article II treaties, because they are more democratic (as passed by a bare majority in both houses) and because "they are more likely to be enforced and because they can be more difficult for a single branch of government to unilaterally undo."