July 31, 2009
Ninth Circuit to Rehear Second Amendment Incorporation Case En Banc
The Ninth Circuit earlier this week voted to rehear en banc Nordyke v. King, the panel decision ruling that the Second Amendment is incorporated against the states. The Ninth Circuit order states that "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."
The panel opinion in Nordyke created a circuit split on Second Amendment incorporation. The Second and Seventh Circuits ruled that the Second Amendment was not incorporated against the states; the Ninth Circuit panel opinion ruled that it was.
But this wouldn't necessarily mean that the Supreme Court would be any less interest in the case. The Supreme Court left the incorporation question open in D.C. v. Heller, and it has been a hot legal and political issue since (making an appearance most recently in the Sotomayor nomination hearings and debates).
And there's still the question of how to incorporate. No circuit has ruled that the Second Amendment is incorporated via the Privileges or Immunities Clause--the Ninth Circuit ruled that it is incorporated via the Due Process Clause--but the Privileges or Immunities Clause has received some attention and argument by paties or amici in each of the three cases. These cases offer the Supreme Court an opportunity to straighten out its incorporation doctrine--another reason the Court may take an interest, irrespective of what the full Ninth Circuit does.
All this is speculation at this point, of course. But the Ninth Circuit's vote to review is a sure signal that the full circuit is unhappy with at least some aspect of the panel's decision.
July 30, 2009
Jawad to be Released from Guantanamo
Two weeks after Judge Huvelle (D.D.C.) called the government's treatment of detainee Jawad's case an "outrage," and two days after the government informed the court that it would no longer treat Jawad as a detainable individual, Judge Huvelle today ordered Jawad released from Guantanamo.
Given the apparent dearth of evidence in the case and the appalling history (described by Judge Huvelle in the first link above), the government's position and the court's ruling don't tell us much about the larger issue of detention at Guantanamo, the government's position in detainees' habeas cases, or the courts' tolerances for continued detention in the absence of evidence supporting the new detention standard set earlier this year by the court. The case tells us only that when pressed on habeas the government will not continue to insist that it can detain without evidence that would stand up on habeas review.
Judge Huvelle also ordered the government to submit to Congress information about the case prior to releasing Jawad, pursuant to Section 14103(e) of the Supplemental Appropriations Act, Pub. L. no. 111-32. That provision, found on the very last page of the Act, requires the administration to report a detainee's name, the transfer country, assessment of the detainee's security risk, and the terms of the agreement with the transfer country. (Interestingly, President Obama did not object to this and related portions of the Act when he signed it, although he did object on constitutional grounds to portions of the Act directing his position with regard to the World Bank and the IMF.)
Judge Huvelle signalled that she'll keep her eye on the government: the last part of the order requires the government to file a status report by August 24 regarding Jawad's transfer.
July 28, 2009
Senate Judiciary Committee Endorses Sotomayor
All Committee Democrats and Senator Lindsey Graham (R-SC) voted in favor. The Committee's six other Republicans voted against.
There were no surprises in the members' statements on the vote; they closely tracked the statements and arguments we've seen throughout the process. Those favoring Judge Sotomayor's nomination cited her restraint and impartiality; Republicans opposing her cited her judicial activism and support for liberal and pro-government positions.
July 27, 2009
Group Lacks Standing to Sue SECDEF in Solomon Amendment Case
A three-judge panel of the D.C. Circuit ruled last Friday that Young America's Foundation (or "YAF"), a group "committed to ensuring that young Americans understand and are inspired by . . . the importance of a strong national defense," lacked standing to sue to compel the Secretary of Defense to withhold funds from the University of California Santa Cruz under the Solomon Amendment. YAF argued that protesters at UCSC prevented or disrupted military recruiting on campus.
The panel held that YAF failed to allege redressability; it wrote,
YAF's task was to allege facts sufficient to show it is likely the Secretary's withholding or threatening to withhold federal funds would enable YAF's members to meet with military recruiters at on-campus job fairs. . . . This it has not done. . . .
[T]he Solomon Amendment leaves the University "a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds." Rumsfeld v. Forum for Academic & Institutional Rights, Inc. Based solely upon its allegation that UCSC received $80 million in federal funds in 2005 and receives "tens of millions" every year . . . YAF argues it is not speculative what the University would choose and "there is 'little doubt' that UCSC's behavior would change" if the Secretary invoked the Solomon Amendment against it. . . . Merely showing UCSC's behavior would change in some undefined way is not enough, however . . . .
The panel also noted that UCSC has a written policy of providing equal access to military recruiters and that the school took some measures to equalize students' access to military recruiters.
The lower court also ruled that the Secretary's decision whether to enforce the Solomon Amendment was not reviewable under the APA. The D.C. Circuit did not address this.
The Senate Judiciary Committee's Other Business on Tuesday: Military Tribunals
The Senate Judiciary Committee will vote on Judge Sotomayor's nomination tomorrow at 10:00 am (EDT). But later in the day, at 2:30, the Subcommittee on Terrorism and Homeland Security will hold a hearing titled "Prosecuting Terrorists: Civilian and Military Trials for GTMO and Beyond." Click here for details and a link to the live web-cast.