Saturday, June 6, 2009
The Roberts Court has been less than favorable to facial challenges to statutes' constitutionality, preferring the more limited approach of an as-applied challenge to statutes' constitutionality. On this, both Luke Meier and Caitlin Borgmann agree. And both consider the Roberts Court approach problematical. However, they advance different solutions.
Luke Meier, in Facial Challenges and Separation of Powers, available on ssrn, forthcoming in Indiana Law Review, argues that "federal courts are constitutionally compelled to consider the constitutionality of a statute on its face when the power of Congress to pass the law has been challenged." Relying primarily upon INS v. Chadha and Clinton v. New York, Meier contends the confused doctrine regarding facial vs. as-applied challenges should be inapposite whenever the challenge concerns power rather than infringements of rights. As Meier notes, "the Supreme Court’s analysis in Chadha and Clinton were relied on by the American Bar Association’s Task Force on Presidential Signing Statements in condemning the practice of Presidential signing statements," in response to an increase of signing statements under President George W. Bush. Meier extends this reasoning to judicial decisions:
the principles of Chadha and Clinton, standing alone, condemn the Court’s practice of invalidating particular applications of a statute as beyond Congress’s power. The essence of the Chadha and Clinton holdings is that the Constitution provides a very specific framework for the process of making laws which will govern the constituents’ conduct. This process involves various different political checks to ensure that various political viewpoints are represented. As a result of these various viewpoints being expressed, most legislation is the compromise of various competing interests. As the Court clearly stated in Clinton when considering the line-item veto, allowing the executive branch, pursuant to a line-item veto, to alter the product of this delicate balancing warps the “finely wrought” process delineated in the Constitution. A new law, the provisions of the statute which the President will enforce, is substituted for the old law, which was the statute as voted on by both Houses of Congress and signed by the President. There is no reason this principle should not apply with equal force to judicial activity under Article III as it does executive activity under Article II in executing the laws. When the Court, in a case such as [Tennesse v. ] Lane, [carves out a specific application of the Title II “reasonable accommodations” requirement, and presumably strikes down other applications of the law, it creates a new law, which was not passed by both Houses of Congress and was not signed by the President.
Id. at 28. It is a compelling argument and certainly worth consideration. However, as Meier admits, it addresses only a portion of the facial vs. as-applied problem.
Caitlin Borgmann, in Holding Legislatures Constitutionally Accountable Through Facial Challenges, available on ssrn, and forthcoming in Hastings Constitutional Law Quarterly, argues that the "traditional view of statutes as embodying constitutional and unconstitutional applications is unhelpful and misleading when such statutes deliberately or recklessly infringe individual rights." Borgmann contends that the "The legislative process is an adversarial one that is not conducive to neutral fact-finding, especially when controversial or minority rights are at issue." She concludes that
Laws that infringe individual rights out of open defiance of clear constitutional precedents, or because of inattention to the facts, are fundamentally flawed and thus prime candidates for total invalidation. Only the threat of complete invalidation in appropriate cases will motivate Congress and state legislatures to make good on their obligation to uphold the U.S. Constitution. And the Court will not make good on its own obligation to protect individual rights unless it once again embraces facial challenges.
Id. at 48. Clearly, her argument applies not only to federal statutes, but to state statutes as well. She also advocates a sort of sliding scale based implicitly (it seems to me) on equal protection principles:
The constitutional norms that call for decisive judicial action in the face of laws that unconstitutionally infringe important individual rights may warrant a different approach in the context of laws that are rights-protective. When the majority acts altruistically, that is, against its own interests or in order to protect rights, the courts‘ duty to protect individuals from majoritarian power is at its low ebb. The legislature is by definition not motivated by bias or hostility toward such rights, and there is little danger that a pretextual purpose will be offered to disguise animosity or prejudice toward an unpopular group. This may be true, for example, when Congress attempts to protect vulnerable or powerless individuals from state oppression.
Id. at 47.
Neither Borgmann nor Meier are the first to note issues with the Roberts Court's tendency to prefer the narrower as-applied challenge, and both engage with the substantial scholarship on the problem. Offering different, but certainly compatible solutions, their articles are worth reading not only by scholars and students, but also by attorneys challenging a statute's constitutionality.
Friday, June 5, 2009
Professor Tony Infanti over at Feminist Law Professors blog has noted that the new New Hampshire same-sex marriage bill signed into law this week does have a constitutional issue other than DOMA-type problems, which we discussed here.
The new law provides:
By providing different "age of consent" laws for entering into marriage with a person of one's same sex than with a person of the "opposite" sex, the state of New Hampshire is obviously making a classification subject to equal protection analysis.
Such differential age requirements are not unknown in non-marriage contexts. In the United States, some states have so-called "Romeo and Juliet" statutes which exempt from criminalization "statutory rape" cases in which the parties are close in age, but do not similarly exempt the parties if they are of the same-sex. For an excellent recent article, see Michael Higdon, Queer Teens And Legislative Bullies: The Cruel And Invidious Discrimination Behind Heterosexist Statutory Rape Laws, 42 UC Davis L. Rev. 195 (2008), who discusses the most well known case, State v. Limon, 122 P.3d 22, 24 (Kan. 2005), as well as other cases and statutes. And in other nations, the decriminalization of homosexual sodomy often left intact differential age of consent statutes - the higher age required for same-sex activity.
It will be interesting to see if the NH age differential will be challenged.
What will health care reform mean for women? If spending clause jurisprudence remains the same, the net result might be (further) infringement on women's constitutional rights.
Currently, underlying doctrines such as the greater includes the lesser theory and the positive/negative rights theory tend to ignore the reality of the modern government, which wields influence through benefits. . . . . for now at least, the Dole test can facilitate drawing such boundaries if all of its elements are actively analyzed by the Court. The current focus on the federal-state relationship does not protect individuals in federal healthcare programs, nor does it particularly protect states. Though individual rights have not appeared to be particularly important to the majority of the Roberts Court, protecting the states through active federalism doctrine may be. . . . . Congress can change this trend, in a microcosm, by eliminating the Hyde Amendment and other pure funding statutes as well as by balancing conscience clause funding statutes. Conscience clause funding statutes in particular would become potentially unconstitutional under a revitalized Dole regime, as the ability to affect private-pay patients through federal spending truly pushes the envelope of the spending power.
Huberfeld's analysis of Dole is especially compelling; it would be helpful to students looking at applications of Dole. Her conclusion that the Roberts Court would be less friendly to constitutional challenges than Congress will be to eliminating limits on funding statutes remains to be seen.
Quoting Larry Tribe, Con Law Prof, Huffington Post reports that Tribe has stated:
The HuffPo piece by Emma Ruby-Sachs notes that Tribe "hired Obama as a research assistant in his first year of law school." The implication is that Obama is influenced by his former conlawprof? One might also look at Professor Obama's 1996 Con Law exam "feedback" regarding a lesbian issue, discussed here.
The DOJ has until June 29 to decide whether or not to defend the DOMA challenge, discussed here. The federal government's stance on the lawsuit is being closely watched. Obama is being criticized for not keeping his campaign promises to LGBT Americans. Obama's most recent statement on LGBT issues, blogged here, is also being criticized as insufficient as well as too radical.
DOMA was signed by then-President Bill Clinton in 1996 (pictured below).
Price describes her book's subject thusly: "As a college student in the 1950s, Arnold had deep misgivings about Brown v. Board of Education as a constitutional matter. Yet he would later preside over the Little Rock school desegregation cases with a firm commitment to federal protection of civil rights and institutional reform. In this book I examine desegregation and other pressing federal court issues in the closing decades of the twentieth century, including the death penalty, abortion, free speech, and voting rights."
Calculating ideologies is an occupation (some might say an occupational hazard) of political scientists. According to well known political scientists Andrew Martin and Kevin Quinn, on their website here,
Their "The Ideological History of the United States Supreme Court, 1937 - 2007," provides a graphic representation (with some interactive features and downloadable) of their analysis of the "liberal" and "conservative" ideologies of United States Supreme Court Justices.
Who is the bluest (most liberal) judge?
Who is the reddest (most conservative) judge?
There is also a link to a video analysis of "Souter's Leftward Drift."
Of course, for some Constitutional Law Professors, the ascription of "liberal" and "conservative" ideologies and outcomes is not easily reducible to numbers. While there may be a more-or-less agreed upon assignment of conservative/liberal ideologies in a case such as Roe v. Wade, other cases on the website's timeline such as Boy Scouts of America v. Dale and Kelo v. City of New London may be subject to more dispute.
Thursday, June 4, 2009
Sotomayor's answers to the "Questionnaire for Judicial Nominees" is available on the United States Senate Committee on the Judiciary here. It's 173 pages, not including the numerous appendices. It provides a wealth of information for Sotomayor researchers.
For example, question 11c (page 15 of the Questionnaire) states:
Sotomayor provides a thirty page chart of her activities - - - it seems she judged a great number of moot court competitions at NYC area law schools. Another question seeks copies of all "speeches or talks delivered by you, including commencement speeches, remarks, lectures, panel discussions, conferences, political speeches, and question-and-answer sessions." Sotomayor provides these in the appendices, including another chart of her various talks.
Question 13 seeks citations and information about her judicial decisions. There is a voluminous list and details, with one of the more interesting aspects being her choice of the ten "most significant" opinions and her descriptions.
Question 26 provides a window into the nomination process. When asked to "Describe your experience in the entire judicial selection process, from beginning to end (including the circumstances which led to your nomination and the interviews in which you participated) . . . ." Sotomayor responds:
Judge Vaughn R. Walker (N.D. Cal.) yesterday dismissed the plaintiffs' claims in the consolidated cases against telecommunication providers for cooperating in the Bush administration's warrantless wiretapping program based on a section of the FISA Amendments Act of 2008 that grants immunity to private telecoms from civil liability for assisting in the program.
In dismissing the case, Walker rejected the plaintiffs' several constitutional arguments that the immunity provision violated separation-of-powers principles, the First and Fourth Amendments, and due process.
Strongest among these was the claim that the immunity provision violated the nondelegation doctrine. Plaintiffs argued that the immunity provision granted the Attorney General unfettered discretion in determining which cases to dismiss--that the Act lacked an "intelligible principle" to guide the AG's exercise of authority. See Whitman v. American Trucking Assn, 531 U.S. 457, 473-74 (2001) (holding that the Clean Air Act's directive to the EPA to set air quality standards at a level "requisite to protect public health from the adverse effects of the pollutant in the ambient air" was "well within the outer limits of our nondelegation precedents" and provided a sufficiently "intelligible principle" for the agency). (The immunity provision here prohibits civil actions when the AG "certifies" that a defendant-telecon cooperated, but the Act doesn't provide standards for the AG in exercising discretion to file in any particular case.)
Walker rejected the nondelegation argument, Slip Op. at 20-33, writing that the immunity provision "is not a broad delegation of authority to an administrative agency like the Clean Air Act or the Sentencing Reform Act; rather, its subject matter is intentionally narrow or 'focused' in scope." Slip Op. at 32. Moreover, "no form of rulemaking is at issue," and "'the shared responsibilities of the Legislative and Executive Branches in foreign relations may permit a wider range of delegations than in other areas.'" Slip Op. at 33 (quoting Owens v. Republic of the Sudan, 531 F. 3d 884, 893 (D.C. Cir. 2008)).
Despite upholding the immunity provision, Walker's ruling reflected concern with its scope. On
[The immunity provision] appears to be sui generis among immunity laws: it creates a retroactive immunity for past, completed acts committed by private parties acting in concert with governmental entities that allegedly violated constitutional rights. The immunity can only be activated by the executive branch of government and may not be invoked by its beneficiaries. [The provision] also contains an unusual temporal limitation confining its immunity protectiosn to suits arising from actions authorized by the president between September 11, 2001 and January 7, 2007.
Slip Op. at 10. And on nondelegation:
Congress could in this manner have included language in [the immunity provision] specifically directing the Attorney General to undertake review and to submit to the court the specified certifications. The absence of a congressional charge to the Attorney General in [the immunity provision] is all the more surprising for the fact that numerous other provisions of [the Act] contain directives to the Attorney General and other agency heads . . . .
Slip Op. at 31.
Walker dismissed the case without prejudice, because the immunity expired on January 7, 2007, and left the door open for an amended complaint (albeit with a higher pleading standard):
The court believes that the Attorney General has adequately and properly invoked [the immunity provision's] immunity to the extent that the allegations of the master consolidated complaints turn on actions authorized by the president between September 11, 2001 and January 7, 2007. The court also believes, however, that plaintiffs are entitled to an opportunity to amend their complaints if they are able, under the ever-more-stringent pleading standards applicable in federal courts (see, e.g., Ashcroft v. Iqbal (citation omitted)), to allege causes of action not affected by the Attorney General's successful invocation of . . . immunity.
Neither Walker's ruling nor the immunity provision should affect the companion suit against the government, Jewel v. NSA, because immunity only extends to private telecoms. (I discussed the state secrets privilege in that case, with links to the pleadings, here.)
Wednesday, June 3, 2009
New Hamphsire Governor John Lynch has just signed a bill into law allowing same-sex marriage in the state. The article from the NH Union-Leader has links to the language of the bills.
As a legislative act, there are no obvious constitutional issues. However, given that NH is the sixth state to recognize same-sex marriage - - - or perhaps the sixth "and a half" if one not only counts Massachusetts, Maine, Vermont, Iowa, Connecticut, but also the same-sex couples in California whose marriages are recognized - - - there are increasing issues regarding federalism and full faith and credit. The federal DOMA is already being challenged by same-sex couples in Massachusetts discussed here, and there is substantial scholarship about possible constitutional challenge discussed here.
And, for what it is worth, former vice-President Dick Cheney has been giving his opinion that same-sex marriage should be allowed as a matter of state law.
Tuesday, June 2, 2009
Obama issued a Proclamation for Lesbian, Gay, Bisexual and Transgender "pride month," which occurs in June to commemorate the Stonewall uprising in New York City on June 27, 1969.
The proclamation's most specific portion states:
A three-judge panel of the Seventh Circuit ruled today that the Second Amendment does not apply to the states and therefore does not restrict state and local governments from enacting gun-control laws.
The ruling addresses the central question left open by the Supreme Court in D.C. v. Heller, its Second Amendment case last term: Does the Fourteenth Amendment incorporate the Second Amendment to the states?
The Seventh Circuit (Chief Judge Easterbrook, writing, and Judges Bauer and Posner) unanimously rejected the plaintiffs' two main arguments: that the Fourteenth Amendment Privileges or Immunities Clause incorporates the Second Amendment; and that the individual right to bear arms, protected by the Second Amendment, is fundamental and therefore should be incorporated under the prevailing "selective incorporation" approach.
The court's ruling was quite modest--i.e., non-"activist"--adhering to Supreme Court precedents that, while questionable (at best) in their reasoning, nevertheless remain on the books. Thus on the P or I claim, the court declined to read around the Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states):
Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this.
Slip Op. at 5 (citing Amar's America's Constitution: A Biography).
Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." The Court did not say that [these cases] rejected a particular argument for applying the second amendment to the states. It said that they hold "that the Second Amendment applies only to the Federal Government." The Court added that "Cruikshank's continuing vitality on incorporation" is "a question not presented by this case."
Slip Op. at 3-4 (internal citation omitted).
The court thus declined to read the P or I Clause as a vehicle for Second Amendment incorporation, leaving that question to the Supreme Court. (For more on the P or I Clause and incorporation, see here.)
As to fundamental rights and selective incorporation, the court also deferred, relying on the unique federalism feature of the Second Amendment:
One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868 [the year the Fourteenth Amendment was ratified]. . . .
Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to "incorporate" the second amendment are for the Justices rather than a court of appeals.
Slip Op. at 6-7, 9.
The ruling creates a split: the Second and Seventh Circuit have now both rejected incorporation; the Ninth Circuit has accepted it (although that case is on en bancreview). (Judge Sotomayer was on the Second Circuit panel rejecting incorporation.)
The issue will surely go to the Supreme Court; the only question is when. This'll give the Court a chance not only to rule on whether to incorporate the Second Amendment to the states, but, perhaps even more importantly, how.
Monday, June 1, 2009
Judge Thomas Hogan (D.D.C.) today denied the government's motion for blanket protection of the factual returns in dozens of Guantanamo detainees' habeas cases.
The returns state the government's basis for detention. The court previously implemented a protective order governing unclassified information in the returns that nevertheless may post a threat to national security. Under the protective order, the government may seek to have the court designate information "protected," i.e., available only on a limited basis to detainees' attorneys and witnesses, but not to the general public.
The government moved for blanket protection of the returns in these cases after it discovered that it accidentally released classified information in unclassified returns.
Judge Hogan rejected the government's argument that the returns in their totality pose a threat to national security. Instead he ruled, consistent with the D.C. Circuit's rulings in Bismullah v. Gates, 551 F.3d 1068, 1070 (D.C. Cir. 2009) (dismissed for other reasons) and Parhat v. Gates, 532 F.3d 834, 851-52 (D.C. Cir. 2008), that the government must specifically identify the proposed protected information in the returns, highlighting that information with a "colored marker." Hogan ordered the government then to confer with counsel for the detainee to work it out, and then, if necessary, to file a motion to protect that specific information with the court.
Hogan also ruled that "under the First Amendment the public has a limited right to access the unclassified factual returns in these habeas proceedings." Slip Op. at 17. Hogan:
Public interest in Guantanamo Bay generally and these proceedings specifically has been unwavering. the public's understanding of the proceedings, however, is incomplete without the factual returns. Publicly disclosing the factual returns would enlighten the citizenry and improve perceptions of the proceedings' fairness.
Slip Op. at 15.
The ruling is a significant victory for detainees and for media intervenors who sought access to the returns. It means that the public will have access to at least some of the material--the unclassified, unprotected portions of the returns--that states the government's basis for detention.
It's not yet clear how much information the ruling will yield, however. If the Obama administration reclassifies these detainees--releasing them or moving them to the Article III courts for criminal trials, e.g.--this information supporting their detention at Guantanamo Bay will be moot (along with their currently pending habeas cases, including Hogan's order). Without an active case and court order, the government will not likely release this information, and anyone still interested in it may have to find another way to get it.