November 29, 2008
Saturday Evening Review
This week's article is by Marius Pieterse, an Associate Professor of Law at the University of Witswatersrand, Johannesburg, South Africa, published in the South Africa Journal of Human Rights.
Entitled Indirect Horizontal Application of the Right to Have Access to Health Care Services, the article provides a compelling argument about the relationship between health care and constitutional rights, a subject that has been preoccupying me since the "conversation" I moderated as announced on the ConLawProf blog here. Professor Pieterse's argument, however, is not simply that health should be a constitutional right; the South African Constitution in section 27(1) explicitly provides the right of everyone to have access to health care services. Instead, Pieterse is taking the next step in a constitutional law scheme that not only guarantees socio-economic rights such as "health care" but also eschews the state action doctrine, so that private parties are also responsible for ensuring "rights." Yet despite the progressiveness of the SA Constitution, it is subject to judicial interpretation and "reality" - - - in this schema, "common law" doctrines such as medical malpractice have constitutional implications.
As Pieterse argues in his conclusion:
I believe that there is significant unexplored potential for the actualisation of socio-economic rights through their indirect horizontal application. This is so, first, because of the fairly extensive body of common law principles applicable to the doctor-patient relationship and other ‘special relationships’ from which socio-economic obligations may flow. These rules often present a detailed and context-sensitive legal framework for the elaboration and enforcement of private socio- economic obligations and allow for the granting of effective remedies to individuals whose interests have been adversely affected by other private entities’ non-compliance with these obligations. In many instances, the current state of common law already gives effect to constitutional socio-economic guarantees in this respect, or requires only minimal developments or shifts in application in order for it to do so. Secondly, South African courts are likely to be more comfortable with the evaluative and remedial paradigms associated with common law development than with the direct application of socio-economic rights. This is because South African legal culture, like legal cultures in most liberal democracies, tends to be skeptical of direct judicial involvement in socio-economic matters but accepts the judicial development of common law rules, in accordance with prevailing societal morality, as uncontroversial. Common law therefore not only offers a wide array of potential remedies that may amount to adequate reparation for infringements of socio-economic rights, but also provides the ideal environment for an exploration of their horizontal dimensions.
.... the legal consequences of justiciable socio-economic rights may extend beyond the effects of asserting concrete, positive claims against states in public law litigation. Since meaningful access to socio-economic amenities is often dependent on the assertion of and compliance with socio-economic claims within private relationships, the actualisation of justiciable socio-economic rights also requires the transformation of those aspects of private law that regulate such relationships. Moreover, since it cannot be denied that the effects of poverty and associated socio-economic deprivation transcend the public and private spheres, it is essential that the legal tools occupied with the alleviation thereof do the same.
The article appears at 23 South Africa Journal of Human Rights 157 (2007) and is available on the SAJHR website for issue 23:1 here. Definitely worth reading as we think about a "right" to health care in the US.
November 28, 2008
Right to Counsel in Home Foreclosures
NPR reports that legal aid programs are unable to keep up with the rising demand for legal representation in home foreclosure cases, raising questions about the right to counsel in such cases. NPR:
Everyone accused of a crime is entitled to a lawyer, whether they can afford one or not. But in civil cases, such as home foreclosures, there is no right to an attorney.
Is this true under the federal constitution? As a matter of Fourteenth Amendment procedural due process, the Court ruled in 1981 in Lassiter v. Department of Social Services that civil litigants had no categorical right to counsel. The Lassiter court held that such claims would be subject to the procedural due process balancing test in Mathews v. Eldridge, and that anything short of a personal interest in physical liberty would almost certainly fail to support a constitutional right to counsel. These cases--and the Court's later right-to-counsel jurisprudence--suggest that NPR is right: "in civil cases . . . there is no right to an attorney."
But a growing movement--call it the "Civil Gideon Movement"--is challenging this conclusion. In cases where important interests like housing are at stake, civil litigants, lawyers, and institutions like the ABA are pressing for a categorical right to counsel.
And they've seen some success. Several state constitutions now recognize a categorical right to counsel in certain civil cases (like deprivation of parental rights proceedings, where the interest in parenthood is quite high), and many states provide a right to counsel to civil litigants in certain cases by statute.
The issue provides a nice case study in-progress in organized movements to promote constitutional and policy changes. As is so often the case, the states provide some of the most interesting fodder.
Here are some resources. The National Coalition for a Civil Right to Counsel--a well organized effort that includes attorneys, advocates, and academics--has been at the forefront of the civil right to counsel effort; link to the Coalition web-site here. The American Bar Association resolution urging a civil right to counsel is here. The Brennan Center page on civil right to counsel is here.
Al-Marri at the Supreme Court
The Supreme Court took no action on Al-Marri v. Pucciarelli at its conference on Tuesday. We may get more information next week. I've posted on this here, here, and here; the NYT editorialized in favor of cert. and in favor of al-Marri.
Al-Marri, a legal U.S. resident, was detained for over five years as an enemy combatant after his initial arrest on criminal charges. A fractured full Fourth Circuit upheld his detention.
The case raises important issues that go well beyond al-Marri. The NYT editorial says it well:
The [Fourth Circuit] made clear that its ruling upholding the president's power to detain enemy combatants applies equally to American citizens. If the ruling stands, presidents would be able to throw out due process, habeas corpus and other basic constitutional and statutory rights for anyone they declared to have terrorist ties.
The case also raises (yet again) the broader question why the government can't simply try folks like al-Marri in Article III courts, where he was originally charged. The administration says that Article III courts can't provide the necessary secrecy for its confidential evidence. But even ignoring the well tested protections for confidential evidence in Article III courts--in camera review, e.g.--the evidence that we've seen in these cases has not been particularly revealing of anything, including the detainees' guilt. This is becoming increasingly clear in the habeas cases; see my post here.
We'll continue to cover developments in al-Marri.
November 27, 2008
Government Supports Voting Rights Act Extension
The Solicitor General filed a motion to affirm a three-judge district court's ruling that appellant Northwest Austin Municipal Utility District was ineligible to bailout of Section 5's preclearance requirements under the VRA and that Congress had authority to reauthorize Section 5. SCOTUSblog has the motion here, analysis here; Election Law @ Moritz has all the lower court filings here. (Thanks to both.) The 2006 reauthorization act is here.
On the constitutional question--whether Congress had authority to reauthorize Section 5 of the VRA under the Fourteenth and Fifteenth Amendments--the SG argued that Congress had authority both because Section 5 is "proportional and congruent" to the discrimination it found (under City of Boerne v. Flores) and because Section 5 is a "rational means to effectuate the constitutional prohibition of racial discrimination in voting" (under South Carolina v. Katzenbach). Thus the Court need not decide which standard--"proportionality and congruence" or "rational basis"--applies. The SG:
Based on its meticulous review of the factual record, the three-judge district court correctly held that, under either Katzenbach or the City of Boerne standard, the reauthorization of Section 5 was a permissible exercise of Congress's authority under the Fifteenth Amendment and therefore is constitutional on its face. Appellant argues that this Court should grant plenary review to clarify which of those legal standards courts should use in evaluating Congress's exercise of its Fifteenth Amendment authority. That issue does not warrant this Court's review here, however, because the three-judge district court correctly determined that the reauthorization of Section 5 was constitutional under [either standard].
A good part of the motion argues that the legislative record fails to support the reauthorization, against appellant's claims to the contrary. For example, appellant argues that Section 5 was originally designed to prevent "gamesmanship," whereby covered jurisdictions used changes in voting practices to evade judgments invalidating earlier practices, and that the legislative record on reauthorization failed to show that gamesmanship was a continuing problem. But the SG argues that, while some jurisdictions engaged in gamesmanship, gamesmanship was "only one aspect of the larger failure of traditional legislative bans on discrimination in voting," and that Section 5 preclearance procedures were prompted by the "cumbersome nature of case-by-case adjudication of voting cases." "In other words, the propensity of some States covered by Section 5 to engage in teh type of gamesmanship described was only one aspect of the larger failure of traditional legislative bans on discrimination in voting." Moreover, the lack of gamesmanship in the legislative findings only "demonstrates that Section 5 has been doing its job."
This kind of argument--focusing on the specific material in the legislative record and holding it up against the particular provisions of the VRA reauthorization--dominates the SG brief, suggesting that the SG anticipates some scrutiny by the Court of the legislative record. Check out pages 12 to 22 of the motion for more.
The SG also argues that the "limiting features" of the reauthorized VRA ensure its "proportionality and congruence" to the evil it seeks to address. But these tailoring provisions have withstood judicial scrutiny in the past. Check out pages 22 to 32 of the motion for more.
We'll keep an eye on the case for you.
November 25, 2008
Florida "homosexual" adoption ban unconstitutional - again
Circuit Judge Cindy Lederman held Florida's bar to "homosexuals" adopting children unconstitutional. The ban, a product of Anita Bryant's "Save Our Children" Campaign in the late 1970s, has been challenged numerous times, with trial judges finding it unconstitutional, see Family Law Professor Blog here and here.
D.C. Court Rejects Detainee Habeas Petition
Judge John D. Bates of the U.S. District Court for the District of Columbia yesterday rejected detainee Omar Khadr's habeas petition. Khadr is a 22-year old Canadian held at Guantanamo Bay; he has been in U.S. custody since age 15.
Khadr was previously designated an "enemy combatant" by a Combat Status Review Tribunal. He is scheduled for a military commission trial for war crimes in January.
Khadr's habeas petition claimed that his military commission lacked authority to try him, because the MCA does not confer personal jurisdiction to try minors. Moreover, he claimed his detention as an enemy combatant was illegal, because under U.S. law and the law of war a minor cannot be a "member," "affiliate," or "associate" of a group like al Qaeda. Finally Khadr argued that even if he can be detained he must be transfered to a rehabilitation facility, because he was a child soldier when captured.
Judge Bates rejected the petition for two reasons. On the first two claims, Judge Bates ruled that Councilman required abstention, see Schlesinger v. Councilman at 758 (holding "that federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted"), and that Khadr did not satisfy the status-based exception to Councilman abstention, because his claims were statutory, not constitutional. See Councilman at 759 (holding that the pre-Councilman cases giving rise to the exception "concerned not only the military court's jurisdiction, but also whether Art. I Congress could allow the military to interfere with the liberty of civilians"--a constitutional claim that the military courts were ill-equipped to deal with).
Judge Bates ruled that Congress, under the MCA, stripped the courts of jurisdiction to hear Khadr's third claim--a claim based on 2241(e)(2) of the habeas statute--and distinguished Boumediene. The Court:
Although Boumediene declared that section 2241(e) is unconstitutional, it did not specify what portion of the statute, if any, remains in effect. Becasue section 2241(e)(1) purports to strip courts of jurisdiction to hear "an application for a writ of habeas corpus," and Boumediene held that those detained as enemy combatants are entitled to "challenge the legality of their detention" through constitutional habeas, it is clear that, at a minimum, subsection (e)(1) was invalidated. . . .
[But claims] relating to "conditions of treatment or confinement" fall squarely within the jurisdictional bar of section 2241(e)(2), and by excluding such claims from the scope of its analysis the Supreme Court appears to have left that subsection undisturbed. . . .
Judge Bates ruled that Khadr's claim was an (e)(2) claim, not an (e)(1) claim, because Khadr sought transfer to a rehabilitation facility, not complete release:
As petitioner states clearly in his reply brief, he "has not moved for complete release, but only release from adult detention and placement in a rehabilitation or reintegration program . . . ." Thus, to find that petitioner's challenge evades section 2241(e)(2)'s continuing jurisdictional bar, the Court must conclude that a request for a remedy that stops short of outright release is nonetheless a core habeas claim.
Judge Bates ruled that it is not and thus rejected Khadr's petition. (Judge Bates's opinion, of course, does not prohibit Khadr from raising his claims at his commission trial and on direct appeal.)
This is now the third time that this court classified habeas petitions as (e)(2) petitions and thus rejected them, in the course reading Boumediene not to extend to them. In the two previous cases, petitioners requested an on-base transfer and a blanket--more clearly requests that related to conditions of confinement. Khadr's claim for placement in a rehabilitation program is different, and Judge Bates's ruling seems to push the (e)(2) category.
We'll keep you posted on developments.
November 24, 2008
Last week, we reported about the speculation regarding the persons that might be the object of an eleventh-hour presidential pardon. The current president has, as expected, used his pardon power to show mercy on individuals convicted of crimes. Less expected is the fact that the persons pardoned had committed fairly minor offenses and were not in any (obvious) way connected to the Beltway. However, there are still eight weeks left in the Lame Duck presidency, so anything could happen. There are still a number of prominent wrongdoers seeking pardons.
Second Circuit on Extraterritorial Application of Fourth Amendment Warrant Requirement
A three-judge panel of the Second Circuit upheld the district court's denial of one defendant-appellant El-Hage's motion to suppress evidence obtained overseas in the criminal case arising out of the 1998 embassy bombings in Nairobi and Dar es Salaam. El-Hage was a naturalized U.S. citizen. The NYT reports here.
The panel upheld the denial of El-Hage's motion to suppress evidence collected in a search of his Nairobi home and through surveillance of his telephone lines, holding that "the Fourth Amendment's requirement of reasonableness--and not the Warrant Clause--governs extraterritorial searches of U.S. citizens" and that these searches were reasonable.
This was the Second Circuit's first crack--indeed, any circuit's first crack--at the extraterritorial application of the Fourth Amendment's warrant requirement. (The court held that the extraterritorial application of the Fourth Amendment's reasonableness requirement was "well settled.")
In ruling that the warrant requirement did not apply extraterritorially, the court relied heavily on U.S. v. Verdugo-Urquidez: "[In that case], seven justice of the Supreme Court endorsed the view that U.S. courts are not empowered to issue warrants for foreign searches."
First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search. . . .
Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own. . . .
Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation. . . .
Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches . . . .
D.C. Circuit Hears Arguments in Uighur Case
A three-judge panel of the D.C. Circuit heard arguments today in the Uighur case. The issue: Whether the lower court can order the Uighurs released from Guantanamo into the United States. I posted on this previously here and here. SCOTUSblog reports on today's arguments here; the Blog of the Legal Times reports here.
Much of the argument centered on Shaughnessy v. Mezei (holding that an alien at Ellis Island, on the "threshold of initial entry" into the U.S., could be excluded without a hearing based on secret evidence related to national security), suggesting that the panel may see this in terms of authority over immigration and the range of Mezei, and not in terms of inherent or statutory (AUMF) executive authority to detain. (Arguments on these latter points worked their way into the case at earlier stages, but Judge Urbina rejected them.)
November 23, 2008
The Sunday Reader: Bagenstos on the Spending Clause
Professor Sam Bagenstos (Wash. U., visiting at Michigan) recently posted Spending Clause Litigation in the Roberts Court on ssrn. (The article will come out in the Duke Law Journal in December.) Bagenstos--who has written several very good articles on civil rights, with a focus on disabilities--produced an excellent review, a useful typology, and a rich analysis that draws on both judicial politics and constitutional law on the Spending Clause. I highly recommend this piece.
Bagenstos's core thesis is that the Roberts Court is likely to limit Congressional Spending Clause authority indirectly--"through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes"--and not, as some expected, directly. Bagenstos:
To the extent that the Roberts Court has a conservative agenda, and the liberal welfare and civil-rights state continues to be built on conditional spending legislation, the Court will have a strong incentive to limit that legislation. But the Court is not likely to do so in the way some hoped and some feared the Rehnquist Court would--by imposing direct limitations on the kinds of legislation Congress has the power to pass under the Spending Clause. Rather, the Court is likely to act indirectly--through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes. Those doctrines have a strong pedigree in existing law, and they are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power.
Bagenstos thus argues that "the paradigm case for the Roberts Court's restriction of the spending power is not likely to be United States v. Butler," but rather the more recent Arlington Central School District v. Murphy (holding that the IDEA, as Spending Clause legislation, could not impose obligations on states unless Congress provided "clear notice.")
To get there, Bagenstos first argues that direct limitations on the Spending Clause--the "general welfare" limitation, the "nexus" limitation, and the "coercion" limitation--have no real teeth, and that they are unlikely to limit the Spending Clause under the Roberts Court.
He next argues that indirect limits will resonate much more with a conservative Roberts Court. Here Bagenstos distinguishes between a "strong contract theory"--"that conditions on federal spending are not 'law,' but merely contractual obligations--and "weak contract theory"--"the requirement that federal spending legislation give states clear notice of the conditions"--and argues that "the Court is nearly certain to continue to implement the weak contract theory, and there is a chance (though not a big one) that it will adopt the strong contract theory." Bagenstos's argument here is both political and doctrinal, thus offering a rich analysis and prediction on the near future of the Spending Clause.
You can read this piece for a good predictive constitutional argument with imortant policy implications. Or you can read this piece for its analysis of the judicial politics of the Roberts Court and the Spending Clause. Or you can simply read it for a useful typology and excellent review of Spending Clause doctrine and scholarship. Whatever your interest, I highly recommend it.
Clinton and Emoluments
There's some buzz in the blogosphere about whether Senator Clinton's nomination to be Secretary of State will run up against the Emoluments Clause. (NYT reports here that Obama offered, Clinton accepted.)
The Emoluments Clause (Art. 1, sec. 6, cl. 2)--designed to prevent opportunistic and corrupt office-seeking--states:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . .
The problem here is that the Secretary of State's salary increased in January 2007, the same month Clinton began her current term. Calvin Massey at The Faculty Lounge explains here.
Even if the Emoluments Clause poses a barrier to Clinton's appointment, there is a fix: Congress could simply lower the salary to its 2006 level. This happened at least twice before: When Nixon nominated Senator William Saxbe to be AG; and when outgoing President George H.W. Bush approved a salary decrease to allow Senator Lloyd Bentson to serve as Treasury Secretary in the Clinton administration. WaPo reports here.
Nareissa also posted on the issue in yesterday's Teaching Assistant.