Friday, January 1, 2010

Judges as Politicians? Politicians as Judges?

Linda_Greenhouse,_2005 Linda Greenhouse has an interesting argument that there should be less opposition between judicial and political roles.  In the NYT online she notes that "years ago, it was not uncommon for politicians to become judges," citing Earl Warren,  but adding that there "probably no single reason politicians have fallen out of favor as judicial nominees."  She says that  "President Obama has made a series of cautious, low-profile nominations to the federal courts — 20 of the 30 nominees have been state or federal judges, and several others are former prosecutors — only to encounter Republican-led tactics of obstruction forcing the Democratic leadership to round up supermajorities before daring to bring nominees to the floor."

But as the WaPo states, Obama's record on judicial nominations is still lagging.  Alliance for Justice has a "recent snapshot" of nominations and confirmations here.


January 1, 2010 in Appointment and Removal Powers, Current Affairs, History, News | Permalink | Comments (0) | TrackBack (0)

Toy Guns Banned in Arkansas Effective Today: Second Amendment Challenge?

Effective January 1, 2010, Arkansas has banned "imitation firearms" or toy guns.


 The statute, Act 1495, defines an "imitation firearm" as 

a toy that is identical in appearance to an original firearm that was manufactured,designed, and produced after 1898, including only:
(1) Air-soft guns firing nonmetallic projectiles;
(2) Replica nonguns; and
(3) Water guns

 "Imitation firearm" does not include:
(1) A nonfiring, collector replica of an antique firearm developed before 1898;
(2) Traditional BB, paintball, or pellet-firing air guns that  expel a projectile through the force of air pressure; or
(3) A device:
    (A) For which an orange solid plug or marking is permanently affixed to the muzzle end of the barrel for a depth of not more  than six millimeters (6 mm);
    (B) For which the entire exterior surface is predominately colored other than black, brown, blue, silver, or metallic;or
    (C) That is constructed of transparent or translucent materials that permit unmistakable observation of the complete contents of the device.

Perhaps this will be the next Second Amendment challenge after McDonald v. City of Chicago?


January 1, 2010 in Current Affairs, Due Process (Substantive), Fundamental Rights, Games, Theory | Permalink | Comments (2) | TrackBack (0)

Thursday, December 31, 2009

State AGs Lay Out Constitutional Case Against "Cornhusker Kickback"

Thirteen state AGs--all Republicans--sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid setting out their constitutional objections to the provision in the Senate health care reform legislation that exempts Nebraska from paying costs of new enrollees in the Medicaid program.  (Instead, under the provision, the federal government would pick up these additional costs.  Senator Ben Nelson is the only senator to have successfully negotiated such an arrangement for his state.)  We most recently posted on this here.

From the letter:

In Helvering v. Davis . . . the United States Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a "display of arbitrary power."  Congressional spending cannot be arbitrary and capricious.  The spending power of Congress includes authority to accomplish policy objectives by conditioning receipt of federal funds on compliance with statutory directives, as in the Medicaid program.  However, the power is not unlimited and "must be in pursuit of the 'general welfare.'"  South Dakota v. Dole . . . .  In Dole the Supreme Court stated, "that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." . . .  It seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal health care, but also ensuring that the states share with the federal government the cost of providing such care to their citizens.  This federal interest is evident from the fact this legislation would require every state, except Nebraska, to shoulder its fair share of the increased Medicaid costs the bill will generate.  The provision of the bill that relieves a single state from this cost-sharing program appears to be not only unrelated, but also antithetical to the legitimate federal interests in the bill.

This seems deeply confused on a number of points.  First, both Helvering and Dole emphasize the expansive nature of the spending power and Congress's--not the courts'--discretion in determining what constitutes the "general welfare."  From Helvering

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views.  We will not resurrect the contest.  It is now settled by decision.  United States v. Butler. . . .  The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents.  Yet difficulties are left when the power is conceded.  The line must still be drawn between one welfare and another, between particular and general.  Where this shall be placed cannot be known through a formula in advance of the event.  There is a middle ground, or certainly a penumbra, in which discretion is at large.  The discretion, however, is not confided to the courts.  The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.  This is now familiar law.

Next, the AGs ask too much of the "arbitrary" standard.  This is a very low standard, not requiring much.  Surely the Nebraska compromise cannot be "arbitrary."  This is especially true in light of the all-too-numerous state-specific benefits that we see in any major piece of legislation--any one of which is at least as "arbitrary" as the Nebraska compromise. 

Third, it's not clear how or why conditional spending plays any part in a constitutional analysis of the Nebraska compromise.  Nothing's conditioned here.

Finally, it's not at all obvious that a part of the purpose of the legislation is to get states to pay jointly with the federal government.  As Professor Mark Tushnet said, the legislation could ultimately aim to get the federal government to pay all of the increased costs; Nebraska simply represents the first step.

The other points in the letter seem equally confused.  For example, the Privileges and Immunities Clause of Article IV has been interpreted as a restriction only against the states, not Congress.  (The Privileges or Immunities Clause of the Fourteenth Amendment obviously doesn't apply at all--by its plain terms it restricts only the states.)  There's no Due Process problem here.  And any Equal Protection problem would get only rational basis review.  The courts would almost certainly uphold the provision for the reasons that Professor Tushnet articulated, among others.

The AGs dropped the Port Preferences Clause claim.


December 31, 2009 in Congressional Authority, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, News, Privileges and Immunities, Procedural Due Process, Spending Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 30, 2009

Restricting Access to Federal Courts, in Three Parts

Two significant developments in the post-9/11 national security cases have resulted in restricted access to the federal courts: The Fourth Circuit's 2007 ruling in El-Masri v. Tenet, expanding the state secrets privilege (and two successive administrations' extraordinary state secrets claims in Mohamed v. Jeppesen Dataplan, Inc. in the Ninth Circuit); and the Supreme Court's 2008 ruling in Ashcroft v. Iqbal, heightening the pleading standard for plaintiffs in federal court.

Now in Amnesty Int'l USA v. Blair, the Second Circuit case challenging the FISA Amendments Act of 2008, or the "FAA," we may be looking at a third.

The FAA authorizes broad surveillance of certain international communications.  The plaintiffs in Amnesty--a group of civil and human rights organizations--alleged that this violated their First and Fourth Amendment rights and separation-of-powers principles.  The district court threw Amnesty out for lack of standing: The plaintiffs failed to allege that they in fact had been surveilled under the FAA, even if they alleged a "well founded fear" of surveillance and significant costs to avoid surveillance.

If the Second Circuit upholds the district court's ruling, the government could have a third new way to dismiss national security cases--lack of standing.  Here's how it might work:

1.  The plaintiffs in any national security case--extraordinary rendition (as in El-Masri, Mohamed, and Iqbal) or unconstitutional surveillance (as in Amnesty)--would have to allege a more specific harm than the harm alleged in Amnesty to avoid dismissal for lack of standing.

2.  But in order to do this, plaintiffs would need information they don't have--and can't get (without getting past a motion to dismiss and into discovery).  They would need to speculate--the problem in Iqbal, which was dismissed for lack of sufficiently pleaded facts.

3.  And in order to get around Iqbal, plaintiffs would not only need information they don't have, but also information that, by the government's reckoning in El-Masri and Mohamed, constitutes a state secret.  Even if plaintiffs could navigate standing (1.) and pleading (2.), El-Masri's version of the state secrets privilege (which is also the government's version) is a game ender.

This triple protection for the government means that plaintiffs would face nearly insurmountable obstacles to gain access to the federal courts in national security cases.  And as we've seen in the wake of Iqbal, these protections could conceivably spill over to restrict access in non-national security cases, as well.

Two pending cases are critical: The Ninth Circuit's en banc consideration of Mohamed (which was argued earlier this month); and the Second Circuit's consideration of Amnesty.  In Mohamed, the full Ninth Circuit is considering whether to uphold the three-judge panel's ruling rejecting the administration's sweeping state secrets claim.  In Amnesty, the Second Circuit is considering whether to uphold the district court's dismissal for lack of standing.  These cases will provide important signals about the future of access to the federal courts.


December 30, 2009 in Recent Cases, Separation of Powers, Standing, State Secrets | Permalink | Comments (1) | TrackBack (0)

CFP: Constitutional Law and Social Justice

Picture 2

From the editors of NYCLR:

The New York City Law Review, a publication committed to promoting social justice scholarship, is seeking an additional article for the Spring volume to be published June 2010.  Our journal is affiliated with the City University of New York School of Law, one of the most diverse law schools in the nation and one of the few entirely dedicated to producing public interest lawyers. In addition to publishing articles by legal scholars, we have a special section in each journal dedicated to public interest articles written by practitioners.

If you are currently working on an article related to the social justice mission of our Journal, please submit.  Our Board is interested in articles related to many different social justice visions and movements, and enjoys articles that integrate theory and practice. 

The Articles Editors can be reached at 


December 30, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 29, 2009

Law Profs File Amicus Brief in Second Circuit FISA Amendments Act Case

A group of law professors last week filed an amicus brief with the Second Circuit in Amnesty Int'l USA v. Blair, the case challenging the FISA Amendments Act of 2008, or the "FAA."  The professors argue that petitioners possess Article III standing and that the district court's ruling dismissing the case for lack of standing should be vacated.

Petitioners brought their claim in the Southern District of New York as a facial challenge to the FAA under the First Amendment, the Fourth Amendment, and separation of powers principles.  Petitioners argued that the FAA, which authorized broad surveillance of certain international communications, chilled their communications with cooperating organizations and individuals--that they had a well founded fear that their communications would be monitored and that they incurred burdensome expenses in order to avoid surveillance.  (The ACLU has an outstanding page, including a collection of the litigation documents, here.)

The Southern District dismissed the case on standing grounds.  The court ruled that the plaintiffs failed to allege a particularized injury--that they failed to alleged that their communications in fact had been surveilled.  Plaintiffs appealed, and the case is now at the Second Circuit.

Several amici weighed in last week.  The law professors traced the history and evolution of the standing doctrine and argued that the district court's ruling was out of step with the history, the Court's precedent, and the policies and purposes of the standing doctrine.  From the Summary of Argument (starting on page 2 of the brief):

Amici respectfully submit that, under a proper understanding and application of the law, the injuries asserted by appellants in this case--(i) a "realistic danger" and an "actual and well-founded fear" that their communications will be monitored under the [FAA] and (ii) harm due to the costly and burdensome measures that the FAA has compelled appellants to take in order to protect the confidentiality of their communications--are more than sufficient to satisfy these requirements for Article III standing. . . .

Indeed, as we discuss below, the district court's determination that appellants lack standing here because they are not "subject to" the FAA more closely resembles the antiquated "legal interest" test for standing, which the Supreme Court expressly held was not the law almost forty years ago, than it does the law of standing as it exists today. . . .

[A]s we discussed below, the district court's decision in this case is irreconcilable with the applicable standing case law both as to probabilistic injury and as to the sort of indirect or derivative harms that courts have found sufficient to show judicially cognizable injury-in-fact. . . .

Indeed, the real policy danger here is that if appellants and those like them are denied standing to sue, then the FAA will be effectively insulated from all judicial review.


December 29, 2009 in Congressional Authority, Recent Cases, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, December 28, 2009

State AGs Challenge Constitutionality of Nelson's Nebraska Compromise

Senators Lindsay Graham and Jim DeMint last week asked South Carolina State Attorney General Henry McMaster to look into the constitutionality of the provision in the Senate health care overhaul bill exempting Nebraska from proposed new Medicaid costs.  (The Senate bill would increase health care coverage in large part by increasing eligibility for the Medicaid program.  Many states are concerned about their ability to cover the new costs.  In a move dubbed the "Cornhusker Kickback" by opponent, Senator Ben Nelson of Nebraska agreed to support the measure in exchange for exempting Nebraska from these new costs.  The federal government would pick them up instead.)  We posted most recently on related issues here.

There's some speculation that a group of Republican state AGs may seek to challenge the measure under the Port Preference Clause (Article I, Sec. 9).  (Talking Points Memo covered this here and here.)  You may be excused for not being on top of that one; here it is:

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obligated to enter, clear, or pay Duties in another.

If you'd like a little more on the Clause, check out Pennsylvania v. Wheeling & Belmont Bridge Co. (1855) and Louisiana Public Service Commission v. Texas & NOR Co. (1931).  According to Louisiana Public Service Commission, "The specified limitations [in the Port Preference Clause] on the power of Congress were set to prevent preferences as between states in respect of their ports or the entry and clearance of vessels."  The Clause doesn't seem to be a very good candidate for a bill having nothing to do with ports, or port preferences, or the entry and clearance of vessels, etc.

Opponents are also arguing the General Welfare Clause--that Congress will have exceeded its authority under the General Welfare Clause by so favoring one state.  (The Alabama AG makes this point in a YouTube video at the end of this TPM story.)  This too seems awfully weak: The Court adopted the more expansive Hamiltonian position on the scope of Congress's spending power in United States v. Butler (1936) and has generally deferred to Congress in determining what spending promotes the general welfare.

Finally, Mark Tushnet suggests in this TPM story that the states may have a "slightly more viable" equal protection argument, but that it would likely fail at rational basis review.


December 28, 2009 in Congressional Authority, Equal Protection, Federalism, Recent Cases | Permalink | Comments (0) | TrackBack (0)

States Fight Health Care Reform (Again)

We posted in September on the growing movement in the states to oppose federal health care reform, writing that Arizona seemed to be leading the way.

Now Arizona and a handful of other states are fighting a second round against federal health care reform, according to the New York Times.

Here's the problem: The health care reform legislation that passed the Senate last week would expand coverage in large part by expanding Medicaid.  But some states, including Arizona, have already taken steps to expand Medicaid coverage.  Under the legislation they'll have to pay more than other states who have not expanded coverage.  In short, the states that have already expanded coverage will subsidize those that have not.

Medicaid coverage by states varies widely.  For example, according to the NYT, Arkansas provides Medicaid coverage for working parents who earn only up to 17 percent of the federal poverty level, while Minnesota covers working parents who earn up to 215 percent of the federal poverty level.

Arizona citizens voted to expand Medicaid coverage in 2000.  As a result, the state estimates that in the first seven years of the Senate bill its share of the costs would be $17 billion.  If the state didn't expand coverage, its share would be merely $1.4 billion.


December 28, 2009 in Federalism, News | Permalink | Comments (0) | TrackBack (0)