May 29, 2010
Souter on Constitutional Interpretation
Retired Justice David Souter criticized a "fair reading model" of constitutional interpretation and promoted more nuanced, value-conscious interpretation in his Commencement address at Harvard last week.
Souter noted that his speech came at a time when constitutional interpretation will once again be a topic for public discourse--and when claims of judicial "activism" are likely to be high--with the end of the Supreme Court's term and at the beginning of Senate hearings on Elena Kagan, President Obama's nominee to fill retiring Justice Stevens's seat.
Souter used two cases to illustrate how a "fair reading model" of constitutional interpretation--a syllogistic interpretation that simply applies the plain text to plain facts--fails to explain what the Court should do, and what it actually does. Souter used the Pentagon Papers Case, New York Times v. United States, and particularly an exchage at oral argument between Justice Black and Solicitor General (and Harvard Dean) Erwin Griswold, to show how the Court accounted for competing values in the Constitution, and did not simply apply Justice Black's absolutist position on the First Amendment speech clause:
The Government lost the case and the newspapers published, but Dean Griswold won his argument with Justice Black. To show, as he put it, that "no law" did not mean "no law," Dean Griswold had pointed out that the First Amendment was not the whole Constitution. The Constitution also granted authority to the government to provide for the security of the nation, and authority to the President to manage foreign policy and command the military.
And although he failed to convince the Court that the capacity to exercise these powers would be seriously affected by publication of the papers, the Court did recognize that at some point the authority to govern that Dean Griswold invoked could limit the right to publish. The Court did not decide the case on the ground that the words "no law" allowed of no exception and meant that the rights of expression were absolute. The Court's majority decided only that the Government had not met a high burden of showing facts that could justify a prior restraint, and particular members of the Court spoke of examples that might have turned the case to go the other way.
Souter then used Brown v. Board of Education to illustrate how changes in society can influence the Court's notion of equality:
As I've said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the more revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.
The fair reading model fails to account for what the Constitution actually says and fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. . . . Framers left to be resolved another day, and another day after that, for our cases can give no answers that fit all conflicts and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.
May 26, 2010
Ninth Circuit Upholds Arizona's Public Campaign Finance Law
In the third significant circuit court decision applying Citizens United v. FEC--the Supreme Court's January 21 ruling striking down limits on independent campaign expenditures--the Ninth Circuit last week in McComish v. Bennett upheld Arizona's public campaign finance law. (We posted on the earlier two decisions here and here.)
Under the Arizona law, any candidate may participate in the state's public campaign finance scheme and receive a state grant for campaign expenditures. Participating candidates relinquish their right to raise and spend private donations. But when a participating candidate faces a non-participating candidate who spends more than a threshold amount under the law, the participating candidate qualifies for additional state "matching funds." Thus the law moves to equalize--or at least control inequalities in--campaign expenditures between participating candidates and non-participating candidates.
Arizona enacted the law, a voter initiative, in the wake of a rash of political scandals in the state under the old campaign finance laws. According to the law's findings, Arizona's previous election financing system "[u]ndermine[d] public confidence in the integrity of public officials," because it "[a]llow[ed] Arizona elected officials to accept large campaign contributions from private interests over which they have governmental jurisdiction." The law's purpose was to "create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of special-interest money, . . . encourage citizen participation in the political process, . . . and promote freedom of speech."
The Ninth Circuit upheld the law, applying intermediate scrutiny. In arriving at intermediate scrutiny, the court asked first whether the type of speech in question was fully protected and second what was the nature of the law's burden on the speech.
On the first question, the court ruled that the law had a hybrid effect--that it impacted by contributions and expenditures. Under Buckley v. Valeo, contributions are not fully protected, while expenditures are; but a law with a hybrid effect, like Arizona's, is treated as impacting fully protected speech.
On the second question, the plaintiffs argued that the Supreme Court's 2008 ruling in Davis v. FEC governed and that the Arizona law, like the law in Davis, placed a severe burden on speech, triggering strict scrutiny. Davis struck down the "Millionaire's Amendment" to the Bipartisan Campaign Reform Act of 2002--the provision that imposed an "asymmetrical regulatory scheme" in any campaign in which all candidates were privately funded but in which any one candidate financed his or her campaign with personal funds above a threshold amount. Under the provision, the opponent of a candidate who exceeded the threshold qualified for "contributions at treble the normal limit . . . ."
The Ninth Circuit rejected this argument, holding that Davis said nothing about publicly funded schemes like the Arizona program. Instead, wrote the court, "it is constitutional to subject candidates running against each other for the same office to entirely different regulatory schemes when some candidates voluntarily choose to participate in a public financing system. Buckley." The court ruled that the Arizona law's impact on speech was "indirect or minimal"--that the plaintiffs failed to show that any non-participating candidate declined a contribution or restricted spending in order to avoid triggering the matching funds provision:
In this case, as in Buckley and Citizens United, the burden that Plaintiffs allege is merely a theoretical chilling effect . . . . The matching funds provision does not actually prevent anyone from speaking in the first place or cap campaign expenditures. Also, as in Buckley and Citizens United, there is no evidence that any Plaintiff has actually suffered the consequence they allege the Act imposes. We conclude that the burden created by the Act is most analogous to the burden of disclosure and disclaimer requirements in Buckley and Citizens United. Following the Supreme Court's precedents in those cases, because the Act imposes only a minimal burden on fully protected speech, intermediate scrutiny applies.
McComish at 7345.
Applying intermediate scrutiny, the court upheld the law:
The State has a sufficiently important interest in preventing corruption and the appearance of corruption. . . . Furthermore, the State has an interest in providing matching funds to encourage participation in its public funding scheme. . . . Viewing the Act from this perspective, it is clear that the Act's anticorruption interest is further promoted by high participation in the program.
McComish at 7345-47.
May 25, 2010
The constitutionality of the Lieberman Amendment to “repeal” the "don’t ask, don’t tell" military policyIn what is being described as a compromise, Senator Lieberman of Connecticut and Representative Patrick Murphy of Pennsylvania are introducing language to repeal the military’s don’t ask, don’t tell policy - - - which is codified by Congressional statute at 10 U.S.C. § 654. Well, sort of repeal. The statutory amendment clearly provides that it would strike § 654, but the timing is not specific.
Unlike most “effective date” sections in statutory schemes, the effective date in the Lieberman Amendment is not a date certain (such as July 1, 2010), but a set of conditions:
b) EFFECTIVE DATE. - The amendments made by subsection (f) shall take effect only on the date on which the last of the following occurs:
(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).
(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:
(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.
(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).
(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.
A provision requiring the President (or another branch of the Executive) to “certify” certain conditions is not unique. For example, the Stafford Disaster Relief and Emergency Assistance Act requires the President to certify natural disasters before aspects of the statutory scheme can be invoked.
Yet having the president certify certain conditions have been met to trigger specific relief under a statute is different from having the president certify certain conditions have been met to trigger the effective date - - - the very existence - - - of the statute.
The constitutional question this unorthodox process raises is one of separation of powers. Does this improperly delegate legislative power to the Executive? Does this give the President the power to “make” rather than to “execute” the laws?
In INS v. Chadha, the United States Supreme Court ruled in 1983 that Congress could not maintain for itself - - - or more precisely, one of its two houses - - - the power to “veto” a determination by the Attorney General that a particular immigrant should not be deported because of the “hardship” exemption under the statute. Yet in Chadha, the problem was that Congress was maintaining power for itself.
In the Lieberman Amendment, it seems Congress might be trying to give some of its power away - - - a situation not unlike Mistretta v. United States, decided in 1989, in which the Court upheld the Sentencing Reform Act which established a Sentencing Commission, importantly placing it within the Judicial branch and thus risking a separation of powers claim.
But again, the Lieberman Amendment is different because the very date of effectiveness of the statute is delegated to the power of another branch.
With conservatives condemning the Amendment, the compromise of the “conditional effective date” repeal of the compromise policy of “don’t ask don’t tell” may be subject to a constitutional challenge.
May 24, 2010
Obama's "Line Item Veto"
The White House today sent legislation to the Hill that would allow the President to "rescind" objectionable spending items, sending a rescission bill back to Congress for fast-track consideration. The proposed legislation, the Reduce Unnecessary Spending Act of 2010, establishes provisions for the President to sign legislation, but send back a rescission package of particular spending items for full House and Senate approval, thus initiating new legislation that would amend the just-signed bill (and satisfy the Constitution's requirements of bi-cameralism and presentment). The only innovation in the proposal is the fast-track process, which requires the House and Senate to consider the rescission bill quickly and without amendment; otherwise the process operates just as if the President were proposing new legislation.
As we wrote earlier this month, the proposal is designed to give the President flexibility in considering legislation that contains all manner of objectionable spending items while side-stepping the literal line-item veto, which the Supreme Court ruled unconstitutional in Clinton v. New York.
The approach will have another effect. It will require Congress to consider in isolation, and thus publicize, certain spending measures that otherwise might be buried in voluminous legislation and spending bills. The approach will require Congress to publicly own its spending, or to publicly disavow it, and to allow We the People to respond accordingly. In contrast to the earlier line-item veto, which by-passed the ordinary democratic process for enacting legislation under the Constitution, this approach is democracy-enhancing.
But this will (obvoiusly) only work for those spending measures to which the President objects, and not those spending measures--perhaps equally objectionable--to which both the President and Congress assent.
Court Declines to Address Private Prosecution
A sharply divided Supreme Court today dismissed cert. in Robertson v. United States ex rel. Watson as improvidently granted. The majority issued a one-line dismissal; Chief Justice Roberts wrote a 12-page dissent for himself and Justices Scalia, Kennedy, and Sotomayor.
The case involved Ms. Wykenna Watson's criminal contempt case against Mr. John Robertson in the D.C. courts for violation of a civil protection order after Robertson beat Watson (for a second time). The D.C. court judged Robertson guilty of violation of three counts of criminal contempt and sentenced him to prison plus restitution.
The problem: The AUSA had already entered into a plea agreement with Robertson for the underlying assault, and the D.C. courts already sentenced him to one to three years.
The D.C. courts upheld Robertson's sentence imposed in Ms. Watson's criminal contempt case. Robertson argued to the Supreme Court that that violated due process and separation-of-powers considerations, because he had already been sentenced for the underlying assault (the due process claim) and because private parties lack authority to prosecute criminal cases (the core separation-of-powers claim--that only the executive can bring criminal charges).
The Supreme Court granted cert. against the advice of the U.S. government and today dismissed cert. as improvidently granted. (The government argued that the D.C. court ruling didn't conflict with Supreme Court precedent and that, in any event, this case was a poor vehicle for deciding the important and complex constitutional issues.)
Chief Justice Roberts wrote in dissent that "[o]ur entire criminal justice system is premised on the notion that a criminal prosecution pits the government against the governed, not one private citizen against another."
Alas, the case was never that simple. The parties' arguments on the constitutional text, the history, and the practice of private prosecution (Robertson's here; Watson's here) gives just a glimpse of how complicated the questions are. This case only added to the complexities: The private criminal contempt case grew out of an assault that was already punished by the government (adding to the due process concerns), and in an area of the law--domestic violence--that often relies on private enforcement but also demands a stronger public response. As the government argued at the cert. stage, this was, indeed, a bad case to address these issues.
May 23, 2010
Who's Activist Now?: the Roberts Court in History PANEL DISCUSSION
The organizers describe the event, entitled Who's Activist Now?: The Roberts Court in History, thusly:
For a generation or more, conservatives have condemned liberal judges as “activists”—dedicated to an ideological agenda, dismissive of precedent and the provisions of the Constitution, and eager to overturn the acts of duly elected legislatures. Today, however, the left is using the same terminology to criticize the conservative Roberts Court; recently President Obama himself attacked activist conservative judges. This panel will examine whether there is any meaningful content to this debate, whether liberals are truly dedicated (as many say they are) to “judicial restraint,” and what history—particularly the era that came to an end in 1937, the last great era of conservative jurisprudence—can teach us about our own times.
The event is sponsored by Alliance for Justice, the New York Lawyer Chapter of the American Constitution Society, the Brennan Center for Justice, and New York University School of Law.
It's at NYU on June 23, 2010. RSVP required: information here.