Constitutional Law Prof Blog

The Constitutionality of State and Local Laws Targeting Immigrants: Saturday Evening Review

What power do state and local governments have to regulate or enforce laws relating to immigration?  This question is a recurring one, even as the federal government attempts immigration reform.

In her new article, The Constitutionality of State and Local Laws Targeting Immigrants,
available on ssrn here and forthcoming in University of Arkansas Little Rock Law Review, Professor Karla Mari McKanders of University of Tennessee (photo below), argues that

The practice of employing state and municipal laws to exclude immigrants should be discontinued. . . . . If states and localities are permitted to enact immigration laws, our country will have fifty  different iterations of pro- and anti- immigrant laws.  This will also cause state and local governments across the country to compete with each other to see who can pass laws to exclude immigrants from their states, so they will not have to address any issues that come along with migration and integrating immigrants into their communities.  This will essentially result in a downward spiral of states with laws that exclude (a race to the bottom) as states and localities attempt to enact laws which result in immigrants relocating or self-deporting.

McKanders analyzes the various (and contrary) federal decisions, noting that the federal courts take two main positions: (1) when states act pursuant to their police powers, state laws that affect immigration are not per se preempted; and (2) the INA establishes a comprehensive scheme that preempts state and local laws that target or affect immigrants.   She concentrates on  Chicanos Por La Causa, Inc. v. Napolitano,  544 F.3d 976 (9th Cir. 2008), and Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 540-41 (M.D. Pa. 2007), but also discusses the important Eleventh Circuit case Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027 (11th Cir. 2008), as well as several others.   

This paper was prepared for a Symposium at University of Arkansas-Little Rock on “cause lawyering,” which the law review defined as   “any activity that seeks to use law-related means or seeks to change law or regulations to achieve greater social justice—both for a particular individual and for disadvantaged groups.”  The Symposium further focused on "immigrants and the Gay, Lesbian, Bisexual, and Transgender communities."

Professor McKanders was doubtlessly invited because of her excellent previous piece, Welcome to Hazleton! 'Illegal' Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, available on ssrn here and in Loyola University Chicago Law Journal. If you are teaching or working in this specific area, or on preemption more generally, McKanders' articles are definitely worth a close read.

RR

Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case

Federal Judge Jeffery White in San Francisco has substantially denied the motion to dismiss the civil complaint filed by Jose Padilla against John Yoo, formerly of the DOJ, now on leave from UC-Berkeley (Boalt Hall).

In a 42 page opinion (download here), Judge White begins rather grandly:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).
The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect.

However, the judge soon provides a detailed recitation of the allegations of the complaint and then engages in a closely reasoned opinion relying on United States Supreme Court precedent as well as numerous Ninth Circuit cases.  Judge White acknowledges the separation of powers issues in this Bivens complaint, and interestingly has this comment about Yoo's argument for absention:

Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power. Thus, the question posed by the present motion is whether an alternative branch of government, under the circumstances, should be tasked with prescribing the scope of relief available to Padilla.

Order at 22. 

Judge White also denies Yoo's claim of qualified immunity,  including the claim that there is insufficient causation (linking the memos to the actions against Padilla).

 The Judge's Order denies the motion to dismiss "as to all claims with the exception of the claim for violation of Padilla’s rights under the Fifth Amendment against compelled self-incrimination."  The Judge granted Yoo's motion because "there is no allegation in the complaint before this Court that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case," and thus  "he has not stated a claim for violation of the Self-Incrimination Clause of the Fifth Amendment." Order at 37.  Padilla has leave to amend this allegation by July 10.  Yoo has twenty days to file his responsive pleading.

This is an opinion worth reading, just as this case will be worth watching as it proceeds.

RR

DOJ Defends DOMA

The Obama Administration has filed its Motion to Dismiss a challenge to DOMA in the US District Court for the Central District of California.  Despite the possibility that Obama would leave DOMA undefended from various challenges  (last discussed here), the Obama Administration's 54 page memorandum (download here) is a vigorous defense.  Here's the Argument outline:

I.    This Court Lacks Jurisdiction Over Plaintiffs' Claims Against
the United States Because the State Court Lacked Jurisdiction 

II.     Plaintiffs' Claims and Allegations Against the United States
Must Be Dismissed for Lack of Standing
        A. The Case or Controversy Requirement of Article III
        B. Plaintiffs Lack Standing to Challenge DOMA's Reservation
of the States' Authority Regarding Recognition of
Same-Sex Marriages Performed in Other States .
        C. Plaintiffs Lack Standing to Challenge the Definitions
of "Marriage" and "Spouse" Under Federal Law
        D. Plaintiffs Cannot Establish Standing to Seek Certain
Sweeping Relief Requested in Their Complaint 

III. DOMA Is a Valid Exercise of Congress's Power
under the Full Faith and Credit Clause
        A. Section 2 is Consistent With Common Law Conflicts Principles
        B. Section 2 Was Enacted Under Congress's Authority to Prescribe
the "Effect" of One State's Acts in Other States

IV. DOMA Cannot Be Said to Violate an Asserted "Right to Travel"

V. DOMA Is Consistent with Equal Protection and Due Process Principles
        A. Federal Courts Have Unanimously Upheld the Constitutionality of DOMA
        B. DOMA Does Not Impinge Upon Rights That Have Been Recognized as Fundamental
        C. DOMA Does Not Rest on a Suspect Classification
        D. DOMA Satisfies Rational-Basis Review

VI. DOMA Does Not Violate the Right to Privacy
VII. DOMA Cannot Be Said to Infringe Upon any Rights of Speech
VIII. DOMA Cannot Be Said to Infringe Upon any "Right" under the Ninth Amendment

The use of two precedents are especially interesting.  First is the argument regarding Loving v. Virginia:

There the Supreme Court rejected a contention that the assertedly "equal application" of a statute prohibiting interracial marriage immunized the statute from strict scrutiny. 388 U.S. 1, 8, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). The Court had little  difficulty concluding that the statute, which applied only to "interracial marriages involving white persons," was "designed to maintain White Supremacy" and therefore unconstitutional. Id. at 11.  No comparable purpose is present here, however, for DOMA does not seek in any way to advance the "supremacy" of men over women, or of women over men. Thus DOMA cannot be "traced to a . . . purpose" to discriminate against either men or women. [citation omitted].  In upholding the traditional definition of marriage,numerous courts have expressly rejected an alleged analogy to Loving. See, e.g., Kandu, 315 B.R. at 144 ("[T]he Supreme Court did not hold [in Lawrence] that same-sex couples constitute a suspect or semi-suspect class under an equal protection analysis."); Baker v. Vermont, 744 A.2d 864, 880 n.13 (Vt. 1999) (rejecting claim that "defining marriage as the union of one man and one woman discriminates on the basis of sex"); Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d at 187; see also Dean, 653 A.2d at 362-63 & n.2 (Steadman, A.J., concurring) ("It seems to me to stretch the concept of gender discrimination to assert that it applies to treatment of same-sex couples differently from opposite-sex couples.").

Memo at 42.  Another interesting aspect is Obama Administration's distinction of Romer v. Evans:

unlike the Colorado amendment struck down in Romer, DOMA is rationally related to legitimate government interests and cannot fairly be described as "born of animosity toward the class of persons affected." Romer, 517 U.S. at 634. DOMA simply preserves longstanding federal and state policies that have afforded protections and privileges to a traditional form of marriage, while simultaneously recognizing the right of States to extend such protections and privileges to same-sex marriage. Under our federalist system, preserving the autonomy of state and federal governments to address evolving definitions of an age-old societal institution is itself a legitimate governmental interest. Moreover, because DOMA protected "the ability of elected officials to decide matters related to homosexuality," including their right to recognize same-sex marriage, it plainly was not born solely as a result of animosity towards homosexuals.

Memo at 35.

 

This Motion to Dismiss and the legal arguments in the Memo are sure to garner attention, especially given Obama's (previous?) relationship with the LGBT community and progressive groups.  There is already a solid analysis on AmericaBlog.

RR

Secretary of State Clinton is Constitutional, says OLC

The Office of Legal Counsel opined in a little noticed (even non-noticed?) memo on May 20, 2009, that legislation designed to roll back a salary increase for an executive office can ensure compliance with the Emoluments Clause (or the Ineligibility Clause), if the rollback occured before a Senator or Representative was appointed to that office.

The memo, written by Acting Assistant AG David Barron, means that the OLC judged President Obama's appointment of then-Senator Clinton to be Secretary of State, and the salary rollback for that office that immediately preceded her appointment, to be consistent with the Constitution.  This kind of rollback has become known as the "Saxby fix," after Senator William Saxby, Nixon's pick for AG, who would have run afoul of the Clause but for a pre-appointment salary rollback for that office.  I previously posted on the issue here and here.

The Clause, Article I, Sec. 6, cl. 2, states that

[n]o 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 OLC wrote that the words "shall have been encreased" have two possible meanings:

Under the first interpretation, "shall have been encreased" means "shall have ever been encreased."  The Clause thus would call for a series of "snapshots": if at any time during the term of a member of Congress the emoluments of an office are higher than at another time, the emoluments have "encreased" during the member's congressional term . . . .  The alternative interpretation is to read "shall have been encreased during such time" as "shall have been encreased on net during such time," thereby prohibiting the appointment of a congressional member to an office only when the emoluments of the office are greater at the time of appointment than they were at the start of the member's term.

Without a "plain meaning" of the Clause, the OLC looked at drafters' and ratifiers' understandings, the purpose of the Clause, and the history of the application of the Clause and judged them all to point toward the "on net" interpretation.

In so opining, the OLC rejected the opposite conclusion in a 1987 OLC memo (attached to the recently issued memo in the link above).

It's a little surprising that the recent memo went unnoticed for two reasons.  First, the issue got a lot of attention prior to Clinton's appointment. 

But more: This memo is conspicuous in that it's the only OLC memo issued by the Obama administration that appears on the DOJ web-site.  We know the OLC has been hard at work in the first months of the Obama administration.  For an administration committed to openness and transparency, we might expect more of this work to be more available.

SDS

Obama's Moves on Guantanamo

The Obama administration made two significant moves in the last few days that signal its seriousness about closing Guantanamo and finding alternative ways--other than military tribunals--to deal with remaining detainees.  The moves come less than a month after President Obama announced somewhat more detailed plans for dealing with detainees.  I posted on the speech here and here.

In the first move, the administration negotiated an agreement with the Pacific island nation of Palau to take the Chinese Muslims, the Uighurs, detained at Guantanamo Bay.  The U.S. pledged $200 million in development aid to Palau, although the administration denied that the funds represent a quid pro quo.  The NYT reports here.

This move is a closing chapter in the saga of the Uighurs, who were ordered released into the U.S. last fall by a federal judge after concluding that they were not "enemy combatants."  The D.C. Circuit overturned the order, ruling that federal courts lack authority to order the detainees' release into the U.S.  The rulings left the Uighurs in limbo: The U.S. lacked authority to continue to detain them, but the administration refused to release them into the U.S. (and the federal courts couldn't order this), and no other country would take them (except for China, where the government believed they would be persecuted or executed).  Even if Palau doesn't take all 17 Uighurs, its acceptance of some will make it easier for the administration to find a home for others.

In the second move, the administration transferred Guantanamo detainee Ahmed Khalfan Ghailani to the Southern District of New York for criminal trial.  Ghailani pleaded not guilty to charges that he conspired in the 1998 bombings of U.S. Embassies in Kenya and Tanzania.  The NYT reports here.

The moves are a significant signal of the administration's seriousness to close Guantanamo and find alternative ways to deal with detainees, because both come with potential political costs.  The Uighurs, found to be non-combatants in every possible way and by every possible tribunal and official, have somehow been framed as ultra-dangerous threats to the U.S. and its citizens by some.  And detainees generally have been considered too dangerous for the Article III courts by many. The administration's willingness to stand up to these concerns and potential political costs that come with them suggest that it's serious about its Guantanamo efforts.

SDS

Sotomayor, Ricci, and Affirmative Action – Part I – Let the Dialogue Begin

Now that the news frenzy surrounding the Sotomayor nomination has started to settle,

the trends in the storylines are easy to follow.  One of the recurrent issues is the Ricci case.   There is much to say on this topic, so this post will proceed in two parts.  The first part will examine the opportunities for discussion raised by the case.  The second part will analyze the language that has been used to discuss Judge Sotomayor’s role in the case.  

The legal aspects of the Ricci case are basic:  white firefighters challenged the city’s refusal to certify test results after discovering that African Americans fared poorly on the test.   The District Court denied the firefighters’ Title VII and Equal Protection claims.   Beyond the legal claims, the human element of the story centers on Officer Ricci.  Ricci, a dyslexic, studied hard to pass the examination but was still denied his promotion.  Thus, the story pushes many emotional buttons as well. 

 

The legal and emotional issues in the case present a unique opportunity for our nation to engage in a discourse about affirmative action.  The New York Times predicts that based on Sotomayor’s involvement in the Ricci case, “We will see ‘racial quotas’ become a much bigger issue than they might have been had another nominee been brought forward.”  Just as the Clarence Thomas hearings gave us an opportunity to have a national conversation on sexual harassment, perhaps the Sotomayor hearings will allow us to have a conversation on affirmative action and racial inequality that is long overdue.   

This would certainly be an appropriate time to have the conversation.   Our nation has its first African American president.   Three of the past four Secretaries of States have been women, and two of the past four to hold the position have been African American.  In light of these successes, we as a nation are rightfully questioning whether the same barriers that generated the need for affirmative action still exist.   In the University of Michigan cases, Justice O’Connor hinted that “25 years from now,” affirmative action would be a thing of the past.  These successes would seem to buttress her point.

 

Despite these successes, there is still room for – and a need for - a real debate on affirmative action.   The term “real debate” refers to the ability to treat the issue with the seriousness it deserves without reducing it to soundbites.  This is possible.  In a 1998 article, Professor Richard Delgado analyzed ten “myths” about affirmative action in a balanced manner.  In part, the article responded to assertions in an earlier piece by Professor Lino Graglia that argued against affirmative action.   The arguments of the scholars and their relative merits need not be rehashed here.  The point is that two gentlemen on opposite sides of the issue had a constructive discussion. 

 I believe that such constructive discussion is what is missing from the national discourse on affirmative action.  Since it appears we are now headed for a national conversation on this issue, it is important that the conversation proceed in a civilized manner that causes us to seriously consider the policies undergirding affirmative action law.   To that end, here are three suggestions – one for opponents, one for supporters, and one for those in the legal field – to help make this a productive conversation.

 

 

1.       Those who are opposed:  Please remember that racism did not end on November 4, 2008 or any point prior to that date.  The election of President Barack Obama was an important milestone.  However, that one event did not end the persistence of racism in America.  In fact, the converse may be true.   Researchers at Stanford University recently discovered that for some, voting for President Obama actually made them feel more comfortable when discriminating against other African Americans.  The long and short of it is that it is simply too early to conclusively predict all of the ramifications of the 2008 election.   The day may well come when affirmative action is no longer needed, but as report after report outlines the continued difficulties persons of color have in securing educational and employment opportunities, that day is likely not today.  For instance, when we have a stable African American middle class, adequate education in heavily African American neighborhoods, and more equality in educational and economic opportunities, it may be time to dismantle affirmative action.  But until those milestones have been met, more patience may be required.     

 

2.       Those who are in favor:  Please stop apologizing for your support of this issue.  Currently, it seems that it is almost anathema to express outright support for affirmative action.  Any support must be tempered by proposing some modification.  National politicians on the left have all but abandoned the issue.  Bill Clinton famously said that when it came to affirmative action, we should “mend it, not end it.”  President Obama has said he might favor some class based programs, but has indicated that children such as his daughters might not have a need for such programs. 

 

Why is it important for advocates to express full-throated support for this issue? If the left moves too far to the center, our nation loses the ability to have the robust policy discussion that we need.  Moreover, by pushing leftward, an opening can be created that will allow us to talk about why disparities in merit-based measures, such as standardized tests, continue to persist.   Perhaps if the left pushes on this issue, we will get to a national discussion about *why* we expect children that have attended sub-standard schools in unsafe neighborhoods to achieve test scores similar to those in well-staffed schools in secure environments.  Perhaps we will address the fact that our schools are more segregated now than before the Brown decision.   Basically, by pushing the issue, perhaps our nation will be forced to address – and possible finally cure - the root causes of the racial inequities that compelled the creation of affirmative action in the first place.  But if the left is content to stay in the middle, that conversation will likely not take place.

 

3.       As attorneys and law professors:  Please do our best to educate all we contact on this issue.   As lawyers, we are privileged to possess a knowledge of the legal system beyond that of the average American.   We must use this knowledge to educate our students, our families, and when the opportunity arises - the public.  We must talk about Fullilove and Metro Broadcasting as well as Croson and Adarand.  We must talk about both Grutter and Gratz.  Because there is so much emotion around this issue, our unique role is – or should be - to show our students, our families, and the public that since affirmative action was created, the law has viewed it in different ways at different times.  Since we have been trained to understand both sides of the legal issue, we should be able to educate and challenge those on either side of the issue.   Hopefully, by injecting facts and analysis, we can remind others that there is validity to positions on both sides of the issue, and thus we can raise the level of debate. 

There is far more to be said on this topic.   Please watch for part II of this series.

 

NLS

Another Cert. Petition Urging Second Amendment Application to States

Individual plaintiffs, the Second Amendment Foundation, and the Illinois State Rifle Association filed a petition today asking the Supreme Court to reverse last week's Seventh Circuit ruling and apply the Second Amendment individual right to bear arms to the states.  (Alan Gura, the attorney who represented the respondents last term in D.C. v. Heller, filed the cert. petition.)

The NRA filed a cert. petition in the case last week.

Both petitions argue that the case presents a good opportunity for the Supreme Court to resolve a split in the circuits and set its incorporation doctrine right. 

But while the NRA argues primarily for "selective incorporation" via the Fourteenth Amendment's Due Process Clause, Gura's brief forcefully argues for incorporation via the Privileges or Immunities Clause--and, necessarily, for overruling the Slaughterhouse Cases:

More critically [than resolving the circuit split], it is never too late to undo an error as grievous as that contained within The Slaughter-House Cases.  Opportunities to correct such mistakes should be seized when they present themselves.

Brief at 29 (emphasis added). 

The Slaughterhouse Cases, of course, read the Privileges or Immunities Clause unduly narrowly, leaving that clause all but empty and surely no vehicle for applying the Bill of Rights to the states.  Without the Privileges or Immunities Clause--the most obvious vehicle for incorporation, and the clause that the Fourteenth Amendment framers and ratifiers assumed would operate as a vehicle for incorporation--the Court used the Due Process Clause and a process called selective incorporation.  Under the selective incorporation approach, the Court looks to whether a claimed right is sufficiently important and historically grounded to apply to the states.

But the Slaughterhouse Cases' narrow reading of the Privileges or Immunities Clause is widely regarded as a mistake.

Gura's brief--and the work of Seventh Circuit amicus Constitutional Accountability Center--seek to set this right.  The move to overturn the Slaughterhouse Cases pits the original understanding and original intent of the Fourteenth Amendment (which suggests that the Privileges or Immunities Clause was designed to incorporate fundamental rights against the states) against the long-standing selective incorporation practice of the Court (which uses the Due Process Clause as the vehicle for incorporation).

This is a bold move, in the sense that selective incorporation under the Due Process Clause is probably the path of lesser resistance.  (Gura argues this, as well.)

But it's also a move that could effect a sea change in the way we understand national citizenship and the way we protect fundamental rights--enumerated and unenumerated--against the states.

SDS

Sotomayor Senate Hearings - July 13

"The Senate Judiciary Committee has set a date for the start of nomination hearings on Judge Sonia Sotomayor to be associate justice of the Supreme Court: July 13."   So reports the Washington Post here.
Other outlets are reporting the same date based on Senator Patrick Leahy's statement.

There has been much activity surrounding the nomination and many news, opinion, and analysis pieces in web, print, and other media sources.   Good collections can be found at Library of Congress, Sotomayor for Justice, Justice for Justice Sotomayor, and Center on Latino & Latina Rights and Equality (CLORE) at CUNY Law School. 

We've previously uploaded and discussed responses to Senate Questionnaire, which will be a basis for the Senate Hearings, here.

update: The ACLU Report summarizing "the civil liberties and civil rights record" of Sotomayor is available here. On page 4 (of 88 pages), the ACLU Report states:

Because Judge Sotomayor’s opinions are so fact-based and rarely stray far from well-established
precedents, they are often difficult to characterize as either liberal or conservative.  It is worth
noting, however, that Judge Sotomayor has not written about many of the hot button topics that
often dominate public discussions about the Supreme Court.  Despite a lengthy judicial tenure,
her opinions have not directly addressed a wide range of issues that frequently appear on the
Supreme Court’s docket, including abortion, gay rights, presidential power, and the death
penalty.  

RR

Wydra and Gans on Privileges and Immunities, Incorporation, Second Amendment

I spoke this afternoon with Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, and David Gans, Director of the Constitutional Accountability Center's Human Rights, Civil Rights, and Citizenship Program, about their work on the Fourteenth Amendment Privileges or Immunities Clause, incorporation of the Bill of Rights, and the Second Amendment.

The full interview is here.  (24 minutes, mp3 file.)

I've covered the CAC's excellent work on these issues here, here, and here.  Wydra and Gans filed an amicus brief in NRA v. City of Chicago, the Seventh Circuit's decision last week declining to apply the Second Amendment to the states.  (My post is here.)  Gans and CAC founder and President Doug Kendall wrote The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. 

Their argument--that the Privileges or Immunities Clause of the Fourteenth Amendment incorporates fundamental rights--has been very much in play in the three circuit court cases since D.C. v. Heller on Second Amendment incorporation.  One issue I was particularly interested in: How does incorporation under the Privileges or Immunities Clause change the landscape for fundamental rights protection against the states?  Answer: Listen to the interview, or see below.

Here are some highlights:

On the Gem:

Gans: The story of the Gem and of the Privileges or Immunities Clause is that this was the center piece of the Fourteenth Amendment and was designed to be the place where the constitution protected substantive fundamental rights against state incursion.  The name comes from one of the framers, who said the Fourteenth Amendment is going to be the Gem, because it puts the Declaration of Independence in the Constitution.  The idea was that the inalianable rights mentioned in the Declaration would be protected against the states in the Gem, and it would embody those protections of liberty and equality that had been flagrantly violated in the years leading up to the Civil War.  Sadly the Supreme Court in the 1870s wrote the Privileges or Immunities Clause out of the constitution in the Slaughterhouse Cases and left it to protect a very narrow set of rights and excluded from the protection all the substantive fundamental rights that we view as the heart of liberty.  And so the mission of the Gem was to show the framers’ vision that the Privileges or Immunities Clasue was meant to protect substantive fundamental rights, including both rights that were explicitly enumerated in the Bill of Rights and a pretty wide set of rights that were viewed as fundamental but weren’t specifically enumerated . . . and to show how Slaugeterhouse decimated this original meaning of the Privileges or Immunities Clause.   

On Second Amendment Incorporation: 

SDS: And so does that mean that the Privileges or Immunities Clause is a cleaner vehicle for incorporation . . . and if so by what standard do we measure incorporation under the Privileges or Immunities Clause?

Wydra: [The Second Amendment cases are] possibly one of the cleanest cases for incorporation under the Privileges or Immunities Clause because we have such clear and voluminous history that shows that the framers of the Fourteenth Amendment were particularly concerned that one of the privileges or immunities of citizenship that the new amendment would be protecting would be the individual right to keep and bear arms against state infringement.  And the history shows, as we set  forth in our amicus brief [in the Seventh Circuit case], that this desire to protect the right to bear arms for individuals in the wake of Reconstruction was motivated in large part because the framers of the Fourteenth Amendment wanted to make sure that the newly freed slaves and their northern allies would have the means to protect themselves, their families and their property against the former rebel militias in the South, which were attempting to disarm freedman and unioinists and perpetuating violence against them.  This is why we feel like the Second Amendment cases really do present a unique opportunity to get the scholarly consensus and work that we’ve set forth in the Gem before the Court and hopefully try to put the court’s Privileges or Immunities jurisprudence back on the right track . . . that the court takes this opportunity to right the wrongs of Slaughterhouse.

 

On Fundamental Rights Incorporation:

 

SDS: And so you’ve argued, as I understand your argument, that the rights in the Bill of Rights are incorporated or ought to be incorporated via the Privileges or Immunities Clause.  What additional rights then would be incorporated that perhaps the court has found as a matter of due process or even that the court hasn’t found as a matter of due process?  What rights are we talking about here?

Gans:  the set of rights in many ways might stay the same [as under the Due Process Clause].  [T]he right to bodily integrity was very important . . . the right of personal security . . .  In terms of the so-called right to privacy cases protection of family integrity was hugely important to the framers partially because of the legacy of slavery marriage was impossible, families were destroyed, and making sure that the newly freed slaves were protected in those family rights was extremely important . . .  .

SDS: Fundamentally do you think individual rights practice and individual rights that are protected by the Fourteenth Amendment will change [if the Privileges or Immunities Clause becomes the vehicle for incorporation]?

Wydra:  The rights that are protected currently would only be strengthened, and we think that that is not insignificant; that is actually a very important development if the court were to restore the Privileges or Immunities Clause.  And perhaps just as important the court would be restoring a portion of our constitution that was intended to preserve substantive fundamental rights and would be giving power back to this important provision of our Constitution; and providing coherence to the constitutional rights protection is no small thing.  We think that it [would] help us ground discussions of [what unenumerated rights are protected] so that they will be productive. 

 

On Incorporation Standards under the Privileges or Immunities Clause:

 

SDS: What would we look to to determine what rights that are unenumerated the Privileges or Immunities Clause protects?

Gans: One . . . what counts as a fundamental right under history and tradition would be a relevant source.  Two, there’s a pretty rich history from reconstruction that informs it in terms of what are the rights that the framers of the Fourteenth Amendment cared about [e.g., the right to bear arms].  And you could make a similar point about uneumerated rights.  The value added in the Privileges or Immunities Clause is the idea that when you’re a citizen of the United States, that comes with a wide array of substantive rights--the rights to participate in society--and right now that’s lost.

 

On Citizenship:

 

SDS:  Using the Privileges or Immunities Clause of the Fourteenth Amendment is a validation of federal citizenship that seems to have been stripped away at the Slaughterhouse Cases and never really fully restore.

Wydra: Yes, I think that’s right, and it brings up an interesting point about the Seventh Circuit decision in this case where they raise a point at the end of the opinion about the principle of federalism trumping whatever individual right to keep and bear arms in self-defense that there might be.  The principle of federalism is extremely important, and one of the crown jewels of our constitutional order is this vibrant federalism, but the Fourteenth Amendment stands directly contrary to that argument.  The states are wonderful laboratories of democracy, but the Fourteenth Amendment stands for the proposition that certain fundamental rights are not subject to local experimentation, that they are protected by the federal government against state infringement.

 

SDS

Court denies cert. petition on "Don't Ask, Don't Tell" Military Policy

The United States Supreme Court issued its order today denying the petition for a writ of certiorari in PIETRANGELO, JAMES E. V. GATES, SEC. OF DEFENSE, ET AL., Case No. 08-824 (at page 6 of Order) which challenged the "don't ask, don't tell policy."   The First Circuit, Cook v. Gates, 528 F.3d 42, 103 Fair Empl.Prac.Cas. (BNA) 826 (1st Cir. 2008), upheld the policy against due process, equal protection, and first amendment challenges, ultimately deciding that

constitutional challenges presented in this case are all aimed at a federal statute regulating military affairs. Although the wisdom behind the statute at issue here may be questioned by some, in light of the special deference we grant Congressional decision-making in this area we conclude that the challenges must be dismissed.

One Judge on the three-judge panel, Saris, a district judge sitting by designation, dissented on the first amendment issue.  The petition for certiorari presented the following questions:

Whether 10 U.S.C. § 654 and its regulatory scheme (collectively “Don't Ask, Don't Tell”) violate due process, equal protection, and free speech.

Whether, even in the Military, the prejudice of group A against group B may be a legitimate basis for the government to deny equal benefits to group B. Specifically, whether the prejudice of heterosexual service members against homosexuals is a legitimate basis for the Government to exclude homosexuals from the Military.

Whether the District Court and the Court of Appeals improperly refused to hear plaintiffs' chill/overbreadth claim and their as-applied equal-protection claim.

However, it seems these questions will have to wait for another case - - - or perhaps executive and legislative action.  For our previous discussions of Don't Ask, Don't Tell, see here, here, and here. Interestingly, this denial is garnering more news coverage than the Caperton opinion issued by the Court today, discussed below.

RR

Due Process Requires Judicial Recusal: Caperton v. Massey Coal Analysis

The United States Supreme Court, in a 5-4 opinion issued today, has held that "in all the circumstances of this case, due process requires recusal."  The case involves Justice Brent Benjamin, now the Chief Justice of the West Virginia Supreme Court of Appeals (pictured below). 

As previously discussed here, the Court had certified the question as: 

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60% of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment.

The Court reversed the West Virginia Supreme Court in perhaps a predictable split given the oral argument (discussed here): KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined.  ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.  SCALIA, J., filed a dissenting opinion.

For the Court, Kennedy poses the issue as "“under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be ade­quately implemented,” citing Withrow v. Larkin, 421 U. S. 35, 47 (1975).   Applying that standard, he writes that "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case."

We con­clude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

Opinion at 14.  The Court  addresses the "floodgates" argument by reasserting that the facts before the Court are "extreme by any measure,"  Opinion at 17, but Roberts' dissenting opinion lists a series of 40 numbered issues (often with multiple questions) which illustrate both "floodgates" rhetoric and "slippery slope" rhetoric including:

(question 20) Does a debt of gratitude for endorsements by newspa­pers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias?  How would we measure whether such support is disproportionate? 

and

(question 34) What about state-court cases that are already closed? Can the losing parties in those cases now seek collat­eral relief in federal district court under §1983?  What statutes of limitation should be applied to such suits?

The Court's opinion reaffirms that due process establishes the minimum requirements and that state codes of judicial conduct may adopt more rigorous recusal standards, Opinion at 19.

RR