Saturday, December 12, 2009
It is exam season for those of us in academia, whether we are in the northern hemisphere or southern.
A motivational carrot for me is listing books I'll read when the grading is finished. So, this review from NYT makes the new biography of Abigail Adams sound especially tempting; it begins:
Best known for reminding her husband, John, and his fellow revolutionaries in 1776 to “remember the ladies,” Abigail Adams made a far more rebellious statement 40 years later. At age 71, she wrote her will, ignoring the fact that the document had no legal standing whatsoever. Since husbands at that time controlled family property, she technically had nothing to bequeath.
I'll be reading it to think about Abigail's status as one of the "framers" and possible originalist arguments.
Friday, December 11, 2009
ACORN DEFUNDING IS A BILL OF ATTAINDER: Court Enjoins the Continuining Appropriations Resolution Barring Funding of ACORN
Finding that the Constitution, art I, Section 9, prohibiting a "Bill of Attainder," does not allow "Congress to declare that a single, named organization is barred from all federal funding in the absence of a trial," District Judge Nina Gershon, EDNY, has just issued a preliminary injunction against enforcing the continuing appropriations bills that provide "None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations."
Gershon's opinion is well-reasoned and relatively straightforward, beginning with a brief recitation of the controversy surrounding ACORN and the opposing positions. Quoting United States v. Brown, 381 US 437 [typo corrected; thanks Joi Kush!) (1965), Judge Gershon notes that the prohibition against bills of attainder reflect “the Framers’ belief that the Legislative branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.” She then painstakingly applies the three factor test: whether the statute falls within the historical meaning of legislative punishment, whether the statute furthers nonpunitive purposes (the functional test), and whether the legislative record evinces an intent to punish.
She concludes that the continuing appropriations bills meet these criteria, and thus that there is a likelihood of success on the merits. Her irreparable harm analysis focuses on the continued viability of ACORN, but also notes that the existence of a constitutional violation may lessen the need to prove harm. She also finds the injunction to be in the public interest.
And full disclosure: I've been working on a few myself in conjunction with one of my wonderful research assistants, who found it a relaxing project (or at least she said she did). We finalized the 131 character hint with much laughter and fun; our hints tended toward the witty (or at least what we thought was witty).
The instructions, for both those who want to answer and those who want to "question," are here.
And here is one, especially for fans of old English rock bands and even older constitutional law cases.
RR (thanks Kate Watson, CUNY class of 2011).
Tuesday, December 8, 2009
The Supreme Court yesterday ruled that the plaintiffs' procedural due process claim in Alvarez v. Smith was moot, after the parties resolved their property disputes during the course of the litigation.
The case involved the Illinois Drug Asset Forfeiture Procedure Act ("DAFPA"), which authorizes local law enforcement to seize vehicles, aircraft, vessels, and money involved in certain drug crimes. Under DAFPA, authorities can hold property worth more than $20,000 for up to 97 days after the seizure and before the state's attorney files judicial forfeiture proceedings. Authorities can hold property worth less than $20,000 for up to 187 days before the state's attorney files forfeiture proceedings.
Six plaintiffs who had cars and cash seized under the DAFPA sued the Cook County State's Attorney under 42 U.S.C. Sec. 1983, arguing that the DAFPA violated, on its face, the three-part procedural due process balancing test in U.S. v. James Daniel Good Real Property and Mathews v. Eldridge. The Seventh Circuit ruled for the plaintiffs.
The Supreme Court asked the parties to brief mootness, and, at oral argument, learned that the parties resolved the property dispute: the state returned all seized cars, and individual property owners either forfeited the cash or accepted the state's partial return as final. A unanimous Court rejected the plaintiffs' argument that they sought certification as a class (because plaintiffs did not appeal the denial of class certification) and the argument that the practice was "capable of repetition" while "evading review" (because the plaintiffs failed to show that they were likely again to be subject to the DAFPA, citing Los Angeles v. Lyons) and ruled the claim moot.
Justice Stevens filed a partial dissent in the case, arguing that the Court should not have vacated the Seventh Circuit's judgment.
Monday, December 7, 2009
The Supreme Court heard oral arguments Monday in Free Enterprise Fund v. PCAOB, the case the testing the constitutionality of the Public Company Accounting Oversight Board, a regulatory board created by the Sarbanes Oxley Act within the Securities and Exchange Commission. The central question in the case is whether the PCAOB violates separation of powers and the Appointments Clause--whether its members are subject to sufficient presidential control, and, in any event, whether they were properly appointed as principal or inferior officers. I posted on the case here, and interviewed amici here and here.
Congress created the PCAOB as an independent agency within the already independent SEC in order to promote the regulatory goals of the SOX. As part of this independence, PCAOB members enjoy "for cause" removal by the SEC; SEC members, in turn, enjoy "for cause" removal by the president. (As it turns out, the statutory basis for the SEC's for cause removal is uncertain, at best. But no party disputed it in the case.) But at the same time Congress also subjected the PCAOB to extraordinary SEC control, principally by allowing the SEC to write rules that direct virtual every aspect of the PCAOB's investigations and other regulatory activities.
The petitioners (challenging the PCAOB) argued that the PCAOB's "double for cause" removal provides insulation against presidential control--a violation of separation of powers. (Nobody used the phrase "unitary executive" at oral argument, but the petitioners' arguments were directed at protecting and promoting a strong unitary theory of executive power.) They also argued that the appointment process for PCAOB members violated the Appointments Clause. Both arguments turn on the control exercised by (first) the president and (second) the SEC over the PCAOB. And in measuring control, the petitioners have privileged the President's removal authority among the various considerations that one might use to measure control. (The petitioners de-emphasized removal authority at oral argument, especially in comparison to the attention it got in their brief.)
The government argued that the President has constitutionally sufficient control over the SEC (based, in part, on the Court's approval of independent agencies 70 years ago in Humphrey's Executor), and that the SEC has comprehensive control over the PCAOB. The net result: The President has constitutionally sufficient control over the PCAOB. In contrast to the petitioners, the government argued that removal authority is merely one of many considerations in determining control. When we look at the entire relationship, it's clear that the SEC exercises complete control over the PCAOB.
A good part of the arguments, then, dealt with the precise nature of the SEC's control over the PCAOB--and what form it came in. In addition to removal authority, justices probed about everything from subpoena authority to PCAOB member salaries. And at least two--Chief Justice Roberts and Justice Scalia--suggested that the SEC's power to change PCAOB rules--a kind of "veto" power, but not an affirmative supervisory power--is not a sufficient control.
Chief Justice Roberts and Justice Scalia pressed the control question the hardest. Chief Justice Roberts at one point seemed to endorse the petitioners' theory of "double for cause" removal, calling it "'for cause' squared," while still navigating bedrock cases that uphold independent institutions:
General Kagan: Justice Scalia, that's Humphrey's Executor. Humphrey's Executor does indeed say that the President can't order the SEC commissioners in the same way that he might be able to --
Chief Justice Roberts: Yes, yes.
General Kagan: But that's a 70-year old precedent.
Chief Justice Roberts: Right. That's Humphrey's Executor. But you have to add to Humphrey's Executor Perkins and Morrison. Humphrey's Executorsays you can limit the President's removal power. That doesn't get you down to the [PCAOB]. You have to also say the principal officers, there can be limited on their removal authority of [PCAOB] members. . . .
So you need to rely on Morrison to make the limitations on what the SEC can do with respect to the [PCAOB] constitutional. . . .
And you need to rely on Humphrey's Executor to make the limitations on what the President can tell the SEC constitutional. . . .
So you have got "for cause" squared, and that's -- that's a significant limitation that Humphrey's Executor didn't recognize and Morrison didn't recognize.
Justice Scalia was not so reserved. He would have taken on Humphrey's Executordirectly and thus undercut the basis for an independent SEC, an independent PCAOB, and, apparently, independence within the executive branch itself.
On the other side, Justice Breyer emphasized the extraordinary control that the SEC exercises over the PCAOB, and Justice Sotomayor wondered how independent agencies like the SEC could operate without the kind of appointment and supervisory power it exercises over the PCAOB. (Justice Sotomayor cut to the point early in petitioners' argument: "What is the difference between what you are talking about and an employer who says, look, I can't stick my nose in every bit of business that goes on in my office because that's impossible; otherwise I would be doing all the work and I just humanly can't. I'm delegating to you the responsibility to do X, Y, and Z according to these rules of conduct.")
Finally, Justice Stevens and Justice Ginsburg reached for ways to sever any offending portions of the SOX and save the core of the PCAOB. Counsel for the petitioner would have none of it. Even if PCAOB members were inferior officers, subject to unrestricted power of removal, and appointed solely by the SEC head (and not by the commissioners), the PCAOB would still be unconstitutional, he argued--again, because of the lack of control.
In the end, it's not clear that this case can support the petitioners' necessarily conjectural and sweeping arguments. The problem is that the petitioners failed to appeal the offensive PCAOB standards, regulations, and pending investigations to the SEC, the proper administrative channel, and thus failed to exhaust administrative remedies. And as a result, they also failed to test the SEC's ability to control the PCAOB by changing its standards and rules. The petitioners' arguments about the relationship between the SEC and the PCAOB are thus largely conjectural. As fodder for their aggressive facial challenge, they are also necessarily sweeping.
This seems a flimsy way to bring a facial challenge to the Roberts Court. But only one Justice asked about these issues: Justice Ginsburg book-ended the arguments with questions about the petitioners' lack of harm and failure to exhaust administrative remedies. She summarized:
We don't know -- we don't know what's fictional and what is not here, because you came in, and you don't have a particular case. . . .
You have another instance where Congress set up a scheme, and without having a particular case of an individual who has been hurt, you come in and say: We might sometime be hurt by this, so we want the whole thing knocked down in the absence of any concrete case.
Judging by the active questions on the substance, though, this Court seems unlikely to dispose of the case on petitioners' lack of standing.
Sunday, December 6, 2009
David Gans and Douglas Kendall of the Constitutional Accountability Center have produced yet another excellent study in the text and history of the Constitution, this time arguing against corporate personhood in a Discussion Draft titled "A Capitalist Joker": Corporations, Corporate Personhood, and the Constitution. (Gans and Kendall previously combined on The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, among other work. More here.) This is an important paper at a critical time--when the issue of corporations' rights are pending before the Court in the reargued Citizens United v. FEC. I highly recommend it.
Gans and Kendall trace the ideas of corporate personhood and corporate constitutional rights from the founding and show how they have ebbed and flowed. Thus they show that the settled understanding until 1886, in Santa Clara v. Southern Pacific Railroad Co., was that corporations were not citizens--they were mere creatures of the law--and they lacked citizens' inalienable human rights under the Constitution. Santa Clara changed this understanding, but not because anything the Court wrote in its opinion. Instead, Gans and Kendall show, "the court reporter--himself a former railroad man--took it upon himself to insert into his published notes Chief Justice Waite's oral argument statement that the Fourteenth Amendment protects corporations." Cases following Santa Clara ruled that corporations have the same constitutional rights as individuals.
In 1937, with the end of the Lochner era, the Court repudiated corporate constitutional rights, and in 1973 in Lehnhausen v. Lake Shore Auto Parts Co., wrote that the idea was "a relic of a bygone era." But corporate rights reappeared in First National Bank v. Bellotti, when a 5-4 Court ruled that limits on a corporation's ability to oppose a ballot initiative violated the First Amendment. In 1990, in Austin v. Michigan Chamber of Commerce, and in 2003, in McConnell v. FEC, the Court held that corporations do not have the same rights as citizens to spend money to advocate the election or defeat of candidates for public office.
The issue of corporate constitutional rights is again before the Court in the pending Citizen United, reargued in September, before the Court's '09 Term officially began. The case could have a profound impact on the place of corporations in our constitutional system. Gans and Kendall:
Last June, in Citizens United v. FEC, the Justices took the rare step of calling for a second oral argument and asking the parties to brief whether the Court should overturn Austin and McConnell. Citizens United has taken up the Court's suggestion and is arguing for a sweeping ruling that overrules Austin and McConnell and holds that corporations should have the same First Amendment right as individuals to spend money on elections. A ruling for Citizens United on these grounds would mean that corporations would have a constitutional right to spend unlimited amounts of money--perhaps millions or even billions of dollars--to elect candidates beholden to their special interests and willing to extend their special privileges. The case, thus, reopens truly fundamental questions about the place of corporations in our constitutional order.
This Discussion Draft is an excellent addition to the CAC's outstanding collection of materials on the history of the Constitution. Take a look.