December 13, 2008
Saturday Evening Review - state constitutional classic
State constitutional issues have been prominent lately, witness the attention to Proposition 8 in California (blogged here) and Gubernatorial removal in Illinois (below here). It's also the season for roasting chestnuts (at least in North America) and grading exams (at most law schools and universities). So, I found myself wanting to reread that old chestnut of an article (and a brief one, at that!), by William Brennan on state constitutions. Here's the abstract:
During the 1960's, as the Supreme Court expanded the measure of federal protection for individual rights, there was little need for litigants to rest their claims, or judges their decisions, on state constitutional grounds. In this Article, Mr. Justice Brennan argues that the trend of recent Supreme Court civil liberties decisions should prompt a reappraisal of that strategy. He particularly notes the numerous state courts which have already extended to their citizens, via state constitutions, greater protections than the Supreme Court has held are applicable under the federal Bill of Rights. Finally, he discusses, and applauds, the implications of this new state court activism for the structure of American federalism.
Brennan published the piece in 1977, but it still resonates.
"Federalism, Brennan wrote, "need not be a mean-spirited doctrine that serves only to limit the scope of human liberty. Rather, it must necessarily be furthered significantly when state courts thrust themselves into a position of prominence in the struggle to protect the people of our nation from governmental intrusions on their freedoms."
The article is William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977), and is worth rereading on a winter chestnut-roasting evening as ConLawProfs contemplate grading exams.
December 12, 2008
State Constitutional Law - Removal of Governor
As the New York Times reports, today the "Illinois attorney general petitioned the State Supreme Court on Friday to remove Gov. Rod R. Blagojevich from office, challenging his fitness to serve after his arrest Tuesday on corruption charges." The story continues:
“I recognize that this is an extraordinary request, but these are extraordinary circumstances,” the state attorney general, Lisa Madigan, said at a news conference after filing the petition to remove the governor. At the same time, she urged the State Legislature to move forward with impeachment proceedings.
Ms. Madigan said did not know when the court would respond. If Mr. Blagojevich is temporarily removed, which is what Ms. Madigan is seeking, the lieutenant governor, Pat Quinn, would become acting governor.
A helpful discussion of the issue of "Gubernatorial Removal and the State High Courts" is available from the National Center for State Courts here. The Press Release/ Backgrounder provides:
Illinois is one of at least 15 states with constitutional provisions that place the power of removal of a governor, temporary or otherwise, in the hands of the state’s highest court. The most recent invocation of such a power by a state high court was in Indiana in 2003, when that state’s governor was removed after having suffered a stroke (In re O'Bannon, 798 N.E.2d 838, 2003 Ind. LEXIS 737).
It also lists the 15 states and gives some information, as well as two additional cases.
Senate Armed Services Committee Releases Report on Torture
Senate Armed Services Committee Chair Carl Levin (D-MI) and Ranking Member John McCain (R-Ariz.) yesterday released the executive summary and conclusions of the Committee's report on detainee treatment. The summary and conclusions are here; Senator Levin's press release, with relevant links, is here. Here's the long and short of it:
The abuse of detainees in U.S. custody cannot simply be attributed to the actions of "a few bad apples" acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority. This report is a product of the Committee's inquiry into how those unfortunate results came about.
I'll keep my eye out for the full report and post it when available.
December 11, 2008
Qualified Immunity with a Coke and a smile?
Slate's Dahlia Lithwick has a recap of a fascinating oral argument at the Court yesterday. Although it is primarily about procedural rules, the Con Law implication is about how those rules are being applied against one Mr. John Ashcroft. Read the recap to hear the Justices' thoughts on Coca Cola, among other things.
December 10, 2008
Court News and Insights
Two pieces about the federal courts merit careful reading. Ostensibly, the pieces are about the ideological conflicts on the court and how President-Elect Obama will be able to shape the courts to conform to his ideology. However, beneath the surface, the articles provide a facsinating behind-the-scenes look at how the judges conduct the business of their courts. The Washington Post's story about the Sixth Circuit can be found here. Legal Times' study of the Fourth Circuit is here.
Same-Sex Marriage - Iowa
As the New York Times reports on Iowa's same-sex marriage case argued on December 9:
The legal core of the case, Varnum v. Brien, is whether the state’s 10-year-old law defining a “valid” marriage as only “between a male and female” violates the Iowa Constitution’s guarantees of equal treatment and due process.
A trial court judge ruled last year that the law was unconstitutional and that a dozen gay men and lesbians had been wrongly denied marriage licenses in Polk County, which includes the state capital, Des Moines. The state appealed the ruling, leading to Tuesday’s oral arguments.
But the technical details of the law and the Constitution were only part of a free-wheeling discussion lasting nearly two hours in which the seven justices repeatedly interrupted the lawyers, demanding that they parse and defend their positions.
The Iowa court has posted a video stream on the oral argument, but for the moment it doesn't seem to be working, check here: www.judicial.state.ia.us.
Copies of briefs, court documents, facts sheets, and press releases are available from Lambda Legal Defense Fund here.
Reps. Conyers, Nadler Suggest Mukasey Prejudgment in Ongoing Investigations
Representative John Conyers, Chair of the House Judiciary Committee, and Representative Jerrold Nadler, Chair of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, asked AG Mukasey for clarification of his comments recently in the NYT that
[t]here is absolutely no evidence that anybody who rendered a legal opinion either with respect to surveillance or with respect to interrogation policy did so for any reason other than to protect the security of the country and in the belief that he or she was doing something lawful.
More from the letter:
The public record reflects ample warning to Administration officials that its legal approach was overreaching and invalid, such as repeated objections by military lawyers to Department legal opinions on interrogation issues and the stark warning by then-Deputy Attorney General Comey that the Department would be "ashamed" if the world learned of the legal advice it had given on torture issues. . . .
Our greatest concern, however, is that your statement appears to be pre-judging numerous ongoing investigations.
Mukasey's original comments, and Conyers's and Nadler's letter, obviously raise important issues of executive neutrality and independence and separation of powers. I'll post when/if Mukasey responds.
The (Sad) History and (Hopeful) Future of 14th Amendment Privileges or Immunities
The Constitutional Accountability Center released a report by David H. Gans, Director of the CAC's Human Rights, Civil Rights, and Citizenship Program, and Douglas T. Kendall, CAC founder and president, titled The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. The report, as its title suggests, traces the history of the 14th Amendment P or I Clause. But it also argues for a more robust P or I Clause--a clause that provides a more obvious and less divisive vehicle for protection of substantive rights than the Due Process Clause--and offers evidence and hope for a more robust clause. The report:
This narrative pushes for a change in this constitutional conversation [on substantive Due Process], which is dividing Americans on a topic--substantive constitutional rights and freedoms--that should be holding us together. It tells the sad history of the Privileges or Immunities Clause, which was supposed to be the centerpiece of Section One of the Fourteenth Amendment. Instead, this Clause was written out of the Constitution in 1873 by a Supreme Court unwilling or disinclined to force the "new birth of freedom" Lincoln promised the nation at Gettysburg on a country that was by then retreating from the promises of Reconstruction. For 135 years, this critical constitutional text has laid dead or dormant.
This story of the creation and destruction of the Privileges or Immunities Clause is a page-turning history, filled with American heroes and villains, hope and bitter disappointment, which has never fully gotten its due in our history books. . . . But this narrative is about more than detailing this new scholarly consensus and helping to set the historical record straight. Two Supreme Court cases decided in the last 10 years--Saenz v. Roe (1999) and Heller v. District of Columbia (2008)--set the stage for the Privileges or Immunities Clause to finally assume its intended place as the vehicle through which fundamental rights and liberties of citizens are protected.
December 9, 2008
Checking the President's Pardon Power
If you want to start a family argument this holiday season, just bring up the possibility of the Bush administration being punished for its alleged criminality over the past eight years. Although the president may have some supporters, legal scholars and members of Congress would agree that there is a case to be made. Indeed, the Obama administration-elect (?) has indicated its willingness to investigate, and maybe even prosecute, some of the worst misdeeds of the 43 crew.
The present administration has said again and again that it does not believe any of its members should be pardoned by the outgoing president, as everything they did during their tenure was perfectly legal. Nevertheless, those that would like to investigate the outgoing administration and punish those that may have broken the law are shaken by the fact that the president retains the power to pardon at will - a power completely unrestrained by the constitution and so broad that a person can be pardoned for crimes before charges are even filed.
Enter Representative Jerrold Nadler of New York. Rep. Nadler is introducing a bill that would introduce a constitutional amendment limiting the president's pardon powers. The amendment is fairly modest in its terms, limiting the president's power to pardon those in his administration and limiting last-minute pardons, but otherwise leaving the authority intact. Brian Kalt of Concurring Opinions has an excellent piece about this that has sparked a heated debate in the comments. Go forth and join the discussion! (Also, Professor Kalt will be posting a series of pieces at CO that will examine the president's powers in the lame duck era. Stay tuned for that series - if the first salvo is any indication, it's sure to be enlightening!)
Interior Adopts Final Rule Removing Congressional Veto
In another Midnight Regulation--see my previous posts here and here--the Interior Department on Friday issued a final rule deleting references to the Congressional emergency power to stop mining on public lands. Interior claims that the Congressional veto is unconstitutional. The NYT reported here.
The legislation--section 204(e) of the Federal Land Policy and Management Act of 1976, as amended--reads as follows:
(e) When the Secretary determines, or when the Committee on Natural Resources of the House of Representatives or the Committee on Energy and Natural Resources of the Senate notifies the Secretary, that an emergency situation exists and that extraordinary measures must be taken to preserve values that would otherwise be lost, the Secretary notwithstanding the provisions of subsections (c)(1) and (d) of this section, shall immediately make a withdrawal and file notice of such emergency withdrawal with both of those Committees.
(The challenged language is italicized.)
The new regulations are here. They remove the Congressional committee-directed withdrawal provision, but they do not remove the Secretary-directed withdrawal provision (even though the Department claims it is "redundant.")
The immediate issue is whether the Department must comply with a Congressionally-directed 3-year moratorium, issued in June 2008, on uranium mining on one million acres near the Grand Canyon. The issue is in litigation. Here's the complaint; more resources are on plaintiff Grand Canyon Trust's web-site here. (Many thanks to Grand Canyon Trust.)
I'll keep you updated.
December 8, 2008
Guantanamo Detainees Plead Guilty
Five Guantanamo detainees charged with coordinating the 9/11 attacks informed a military judge that they intended to confess and plead guilty. The NYT reports here. The move seems calculated to challenge the U.S. government to put them to death, thus making them martyrs. This is yet another headache from Guantanamo that the Obama administration will confront in its early days; others here and here.
Two Recent Cases
There are two cases at the court that may of interest to Con Law scholars. First, last week the Court heard arguments in an Equal Protection case that may have far reaching implications. The Court must decide whether Title IX bars a plaintiff from also suing under the Equal Protection Clause. Essentially, the Court would force plaintiffs to choose which claims to pursue quite early in the litigation. David Cohen of Feminist Law Professors has great analysis. Slate's Dahlia Lithwick also has analysis along with a detailed recap of the oral argument.
Second, just when you thought economic due process had breathed its last, it returned to the Court last week in the form of an Oregon jury verdict againt Phillip Morris for nearly 80 million dollars. (SCOTUS Blog's analysis and factual rundown is here.) Technically, the case is *not* about due process, as the Oregon court previously stated (this is PM's third time challenging the verdict before the Court) that it would not need to use the State Farm standard if there were an adequate and independent state law grounds. PM argues that the state court was bound to follow the State Farm standard. The state court's failure is the central issue, but the Washington Post reports that at oral argument, Chief Justice Roberts surprisingly raised the due process issue for the Court. So, the court may yet look at the issue - again. However, the actual issue in the case is fascinating in and of itself - what is or should be the appropriate remedy when a state court fails to follow the Supreme Court's instructions on remand? PM says that a new trial is the only remedy. This question is interesting. As always, we'll keep watching.
Former Philippine Chief Justice Discusses Constitution
I'm posting this week from Manila, where I'm attending the annual conference of the Global Alliance for Justice Education. The conference opened today (Monday) with a keynote by Chief Justice Artemio V. Panganiban (retired) titled New Paradigms of Justice and Education. A good deal of Chief Justice Panganiban's talk dealt with the Philippine Constitution (1987), so I thought I'd post.
The Chief--who's written extensively (outside of his many judicial opinions) on Philippine constitutionalism, jurisprudence, judicial review, and related topics--made three comments that stood out and that are relevant here, on our Con Law Prof Blog. (I offer these without comment.)
First, he repeatedly referred to the Philippine Constitution's commitment to positive social and economic rights, right along with its commitment to liberty. And he linked these: Liberty could not exist without social justice, equality, social services to eradicate poverty, and even full employment. This link is in the Constitution itself: The Philippine Declaration of State Policies, a constitutional provision separate from the Bill of Rights, requires the state
to promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.
Second, the Chief talked about the Philippine Commission on Human Rights, a constitutionally created, politically independent commission "to investigate all forms of human rights violations," "to recommend to Congress effective measures to promote human rights," and "to monitor the Philippine government's compliance with international treaty obligations on human rights."
Finally, the Chief discussed the Philippine Supreme Court's legislative function--constitutional authority in addition to its judicial review function--to "promulgate rules concerning the protection and enforcement of constitutional rights." Pursuant to this authority, the Court last year promulgated the Writ of Amparo, permitting the families or friends of disappeared persons, or persons whose rights to life, liberty, or security were threatened or violated by anyone (including private individuals), to petition the courts to require the perpetrator (public or private) to produce the body of the victim and to explain the circumstances of the violation.
En Banc Second Circuit to Hear Canadian's Rendition Case Tuesday
The full Second Circuit will hear oral arguments tomorrow in Arar v. Ashcroft, the civil action by a Canadian detained at JFK, held in solitary confinement for two weeks in the U.S. without access to an attorney or the courts, and rendered to Syria for, um, "enhanced interrogation techniques." (After a year of in Syria, Syrian officials released Arar, stating that he had no connection to any criminal or terrorist activity. The Canadian government, after an exhaustive inquiry, concluded the same.) This is another case that a new Obama administration may be able to influence. I blogged on the other, Al-Marri, a couple days ago. The NYT ran an editorial on both today.
Arar originally claimed Due Process violations for the government's denial of counsel, denial of access to the courts, and subjecting him to torture by the Syrian government. He also claimed a violation of the Torture Victim's Protection Act, which allows a person tortured by a foreign government to bring suit against that government in U.S. courts. Arar claimed that Ashcroft, et al., were complicit in his torture. Arar's original complaint is here.
An earlier split 3-judge panel of the Second Circuit ruled against Arar. The majority held that Arar's claims would interfere with national security and foreign policy, that as a Canadian he was not entitled to Due Process, and that federal officials weren't sufficiently under the control of the Syrian government to support his TVPA claim. The Second Circuit decision is here.
The Center for Constitutional Rights, which represents Arar, has an excellent resource page here.
The en banc hearing tomorrow is notable because the Second Circuit granted it sua sponte, signalling either the case's important, its unhappiness with the panel decision, or both.
We'll keep you updated.
December 7, 2008
The Sunday Reader: Yung on Federal Sex Offender Registration
Professor Corey Rayburn Yung (John Marshall (Chicago) and editor of the Sex Crimes Blog) posted a pair of articles on ssrn on the constitutionality of the federal Sex Offender Registration and Notification Act ("SORNA"): Sex Offender Registration and Notificat Act and the Commerce Clause (forthcoming in the Federal Sentencing Reporter); and One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions (forthcoming in the Harvard Journal on Legislation). The latter article is a substantial expansion on the constitutional arguments in the former and includes a review and analysis of state efforts.
These'll well supplement your lessons on the Commerce Clause (and the Ex Post Facto and Due Process Clauses) in the unique context of the SORNA--an excellent case study in Congress's authority under the Commerce Clause, and in restrictions upon Congress's authority under the Ex Post Facto and Due Process Clauses. I highly recommend them both for profs and students alike. (Judges might also take a look.)
The SORNA, enacted under authority of the Commerce Clause, requires convicted sex offenders to register, and to update their registration anytime they move, in a new federal registry. (It also conditions federal crime funds on states' cooperation in establishing the federal registry.) The SORNA:
(a) In General. -Whoever-
(1) is required to register under the [SORNA];
(2)(A) is a sex offender as defined for the purposes of the [SORNA] by reason of a conviction under Federal law . . . the law of the District of Columbia, Indian tribal law, or hte law of any terrirotry or possession of the United States; or
(B) travels in interstate or foreign commere, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or to update a registration as required by the [SORNA]; shall be fined under this title or imprisoned not more than 10 years, or both.
Lower courts have been, well, outright confused in analyzing the registration requirement under the Commerce Clause. Most have upheld the requirement with little substantive analysis. Others have upheld or overturned it with just a little more scrutiny into whether sex offenses (or sex offenders' travels?) "substantially affect" interstate commerce. And, surprisingly, some have analyzed it as a "channel" or "instrumentality" of interstate commerce. This is clearly an area for some clarifying scholarship.
And Yung does a wonderful job getting us started. Yung looks at the SORNA through the "substantial effects" test--the most obvious Commerce Clause theory upon which SORNA rests. But he shows how (2)(B)--the interstate component of the SORNA, the "jurisdictional element"--is an insufficient Commerce Clause hook, because it is temporally removed from the underlying sex crime. As a result, "a sex offender can travel between states years before they have failed to register and still be prosecuted . . . ." And: "sex offenders can be prosecuted for failing to update a registry after switching employers within a state even though such a change was unconnected to the alleged interstate travel which may have occurred years previous."
In other words: The interstate travel element of SORNA has no necessary relationship to the underlying sex crime.
As Yung argues, this theory pushes Congress's Commerce Clause authority well beyond the restrictions in Lopez (overturning the possession limitation in the Gun Free School Zone Act) and Morrison (overturning the civil damages remedy in the Violence Against Women Act). If SORNA were upheld, Congress could merely add "who travels in interstate commerce" to any federal criminal law--whether the travel were related to the underlying act or not--and put it within the Commerce Clause power. (A related problem: the SORNA also lacks Congressional findings on the substantial effect on interstate commerce.)
As to (2)(A)--the registration requirement for those convicted of federal sex crimes--Yung argues that it creates a
flypaper theory of the Clause whereby any person who entered federal jurisdiction for just a moment was committed to such jurisdicition for life. This notion is antithetical to the notion of a limited federal government. A person cannot be forever subject to federal jurisdiction simply by having entered federal control at a prior date. In no other context has such a flypaper concept of the Commerce Clause been suppported by a federal court.
In his second article, Yung also look at the Ex Post Facto Clause and Due Process Clause problems with the SORNA, and he examines state registration laws.
Yung concludes by arguing that Congress needs to go back to the drawing board to cure the constitutional problems with SORNA.
These are both wonderful articles on this important and emerging area of Congressional authority. They are good for the classroom and, hopefully, good for the courts. I highly recommend them both.
American Constitution Society
Has the American Constitution Society (ACS) replaced the Federalist Society in the Obama-era?
In a piece entitled Legal Organization May Become Influential Beyond Its Dreams in today's Washington Post, reporter Michael Fletcher writes that the new influence of ACS
is a remarkable turn for an organization born in the frustration that liberal legal thinkers shared over the Supreme Court's role in deciding George W. Bush's contested victory over Vice President Gore in 2000. Many of them saw in the high court's decision a need to counteract the growing influence of the conservative legal movement with a movement of their own.
While it is clear that ACS will achieve a new level of influence in the Obama administration, it remains to be seen how persuasive Obama will find any specific suggestions. On the campaign trail, his view of the law was often elusive. He has talked about the importance of judges having broad experience. But he has also praised the Supreme Court decision striking down the District of Columbia's handgun ban, a ruling that many progressive lawyers did not like. Obama also disagreed with the court's decision that the death penalty may not be applied to child rapists, a case in which the court's most conservative members dissented.