Saturday, June 19, 2010
While Franken acknowledges he is "one of the few non-lawyers in the room," and not an academic, he nevertheless delves into constitutional theory and recent cases to support his point that the Court's decisions matter to "ordinary people." He disavows originalism by linking it with Robert Bork and ultimately concludes: "Originalism isn't a pillar of our Constitutional history. It's a talking point." He critiques Roberts' "judges as umpires" metaphor with reference to a case by the Louisiana Supreme Court in 1866. He discusses cases such as Lochner and Citizens United, but also Stoneridge, Conkright, Leegin, Iqbal, Exxon, Rapanos, Circuit City, and Ledbetter. He also mentions recent proposals to "prioritize" internet service and how that might impact the flow of information.
For those teaching summer school - - - perhaps a comparative constitutional law course outside of the States?? or a legal theory course for non-law students?? - - - this could be the foundation of a good class exercise. One could assign students to write a response or to select one of Franken's points and fully support it.
Thursday, June 17, 2010
ConLawProf Mark Kende may be watching The World Cup, but he's thinking about comparative constitutional law, and more specifically, the appointment of high court justices.
In his Op-Ed in the Christian Science Monitor, Kende argues:
In South Africa, justices can serve up to 12 years. This is the equivalent of two full terms in the US Senate, so implementing term limits, which would appear to require a constitutional amendment, might be a good idea to ensure the president looks for the most qualified justice, not a relatively young one.
Adopting term limits for judges, as well as changing the entire selection process, would be as radical as when the US Soccer Federation reluctantly adopted FIFA standards for rules and calculating league standings. Then, that change was met with its fair share of resistance. But it led to the US hosting the 1994 World Cup, establishing a major soccer league, and strengthening its national teams to contender status on the eve of the 2010 World Cup in South Africa.
If that nation can be a showplace for America on the largest world sports stage of all, it could also serve as an example to an improved Supreme Court confirmation process.
Interestingly, South African ConLawProf Pierre de Vos, commenting on The World Cup closer at hand, has recently noted that there is some talk that the South African Constitutional Court Justices might move to a mandatory retirement age of 70 for justices. This would be more like the life-tenure American model, and quite like the Australian mandatory retirement age of 70 model.
The question of whether there can be a judicial taking under the Fifth Amendment's takings clause was not definitely decided by the Court in its opinion today in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection.
The underlying controversy concerns the littoral interests of waterfront property owners; it can seem more a property law issue than a constitutional law issue as the oral argument illustrated. Writing for the Court, Justice Scalia ultimately concluded that the Florida Supreme Court did not violate the takings clause, but first discussed water rights under Florida law and common law. However, when Scalia opined that the takings clause "applies as fully to the taking of a landowner’s riparian rights as it does to the taking of an estate in land," (plurality, opinion at 11), he was not speaking for the majority, but only a plurality of four justices (Roberts, Alito, Thomas, and himself). Likewise, it is only in the plurality portions of the opinion where there is an acceptance of a judicial taking: "It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat." (plurality, opinion at 12).
Concurring in a separate opinion, Kennedy and Sotomayor noted "certain difficulties that should be considered before accepting the theory that a judicial decision that eliminates an “established property right,” constitutes a violation of the Takings Clause." One of their "difficulties" is an originalist one:
Indeed, it is unclear whether the Takings Clause was understood, as a historical matter, to apply to judicial decisions. The Framers most likely viewed this Clause as applying only to physical appropriation pursuant to the power of eminent domain. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1028, n. 15 (1992). And it appears these physical appropriations were traditionally made by legislatures. See 3 J. Story, Commentaries on the Constitution of the United States §1784, p. 661 (1833).Courts, on the other hand, lacked the power of eminent domain. See 1 W. Blackstone, Commentaries 135 (W. Lewis ed. 1897). The Court’s Takings Clause jurisprudence has expanded beyond the Framers’ understanding,as it now applies to certain regulations that are not physical appropriations. See Lucas, supra, at 1014 (citing Mahon, 260 U. S. 393). But the Court should consider with care the decision to extend the Takings Clause in a manner that might be inconsistent with historical practice.
(Kennedy Opinion at 7).
In a different separate concurring opinion, Breyer joined by Ginsburg contended that a judicial takings doctrine would open the floodgates and allow federal judges to decide matters of complex state property law. Essentially, Breyer and Ginsburg argued for judicial restraint.
Stevens took no part in the decision, presumably because he owns beachfront property in Florida.
Wednesday, June 16, 2010
The full D.C. Circuit ruled last week in a divided opinion (5-4) that the political question doctrine prevented the courts from hearing the plaintiffs' case against the government for President Clinton's bombing of their factory for alleged ties to al Qaeda.
The case, El-Shifa Pharmaceutical Industries Co. v. U.S., arose out of President Clinton's Tomahawk missile strikes on a drug manufacturing plant believed to be associated with al Qaeda. President Clinton ordered the strikes in response to al Qaeda's bombing of U.S. embassies in Kenya and Tanzania in August 1998.
The plaintiffs brought a defamation claim and a claim under international law against the U.S. government, but the D.C. Circuit upheld the lower court's dismissal based on the political question doctrine. The political question doctrine prevents the courts from hearing certain cases that are "constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Op. at 7 (citing Japan Whaling Ass'n v. Am. Cetacean Society. The seminal Supreme Court case on the political question doctrine, Baker v. Carr, explained that a political question involved the following:
a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
The majority wrote that the circuit followed a distinction between determining whether certain policy decisions were "wise" and determining whether certain policy decisions presented a legal issue. The former is a political question; the latter is not.
According to the majority, the issues here involved determining whether policy decisions were "wise." As to the international law claim--which would require the government to compensate the plaintiffs for property destruction that was "mistaken and not justified"--the court wrote that "[w]hether an attack on a foreign target is justified--that is whether it is warranted or well-grounded--is a quintessential 'policy choice and value determination constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Op. at 15. As to the defamation claim, the court wrote that "[i]t too would require the court to reconsider the merits of the decision to strike the El-Shifa plant by determining whether the government's justifications for the attack were false." Op. at 18.
The majority distinguished federal habeas review of detainees under Boumediene by writing that the Suspension Clause contemplates federal court review. The cases involving seizure of "enemy property" are similarly inapplicable, because none of those cases "required the courts to scrutinize a decision constitutionally committed wholly to the political branches." Op. at 24. (The dissent points out that President Clinton justified the attacks based only on his Article II Commander-in-Chief power--the constitutional commitment here.)
The dissent wrote that the majority inappropriately expanded the political question doctrine and with it executive authority (becuase the majority declined to review this executive decision because it was an executive decision). Like the majority, the dissent would have dismissed the case, but based upon the plaintiffs' failure to allege a cognizable cause of action, not the political question doctrine.
The majority's distinction between review of the wisdom of policy decisions and review of the legality of policy decisions is problemmatic, because it fails to articulate a limit on the political question doctrine, especially as the majority applied that distinction in this case. (The plaintiffs' claims are as much, or more, about the legality of the policy as the wisdom of the policy. In truth, the two overlap, collapsing the dichotomy that the majority relies upon.) Given the ruling here, it's hard to see what wouldn't be a decision on the wisdom of a policy, as opposed to the legality of a policy.
Detention of unlawful combatants is a good example. As the majority writes, the Suspension Clause contemplates a role for judicial review. But this is only because the Court has ruled on the Suspension Clause--because the Court has opened this door. This is the very issue in this case--whether the courts can review the plaintiffs' defamation and international law claims--and not a basis for distinguishing this case. Moreover, as we've seen in the lower courts' initial struggles in the wake of Boumediene, habeas for alleged unlawful combatants presents many of the same problems that the Court uses to justify and explain the political question doctrine in Baker v. Carr. Yet these cases are not political questions.
By the majority's reckoning, it seems they should be. And moreover, it seems that any issue related to foreign policy should be a political question--not only Boumediene, but also Hamdi, Hamdan, and the whole lot of cases arising out of the government's pursuit of terrorists. Even if the D.C. Circuit's distinction is coherent--which it isn't--the ruling has the surprising result that the courts could review executive detention but not executive bombings.
If the case goes up, the Supreme Court could have to wrestle with this tough, common-sensical question: Why can the courts review executive detention, but not the (potentially much more destructive) executive bombing?
Monday, June 14, 2010
The Supreme Court today declined to review the full Second Circuit's split ruling (7-4) in Maher Arar's case against U.S. authorities for their role in his extraordinary rendition and torture, Arar v. Ashcroft. The short order contained no comment or opinion, except that it noted that Justice Sotomayor, a former Second Circuit judge, recused herself from consideration of the case.
Arar, the Canadian citizen detained by U.S. authorities, denied access to the courts, and delivered to Syria for torture, sought Supreme Court review on February 1, 2010, of the full Second Circuit's decision denying relief. Arar challenged the Second Circuit's rejection of his Bivens claim against senior federal officials and 10 unknown federal law enforcement and immigration agents for violation of the Torture Victim Protection Act and the Fifth Amendment Due Proces Clause. We posted an analysis of the case here.
The Court's decision today leaves in place the Second Circuit's ruling and ends Arar's federal court case against government officials.
A divided three-judge panel of the Ninth Circuit last week upheld a Redondo Beach ordinance designed to ban employment solictation by day laborers in Comite de Jornalers de Redondo Beach v. City of Redondo Beach. Plaintiffs in the case lodged a facial challenge to the ordinance under the First Amendment.
The ordinance reads as follows:
(a) It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle. For purposes of this section, "street or highway" shall mean all of that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, medians, alleys, sidewalks, curbs, and public ways.
The City later enacted another provision applying to solicitees:
(b) It shall be unlawful for any person to stop, park or stand a motor vehicle on a street or highway from which any occupant attempts to hire or hires for employment another person or persons.
The provisions were adopted in response to complaints by local residents and business owners that day laborers were clogging sidewalks and city streets, impeding the flow of traffic, littering, damaging property, and harassing females.
The two-judge majority upheld Section (a) as a reasonable, content-neutral time, place, or manner restriction on speech in a public forum. The court wrote that the ordinance was narrowly tailored to serve the City's significant interests in traffic flow and safety, even if the ordinance might also ban some speech that would not serve this interest (e.g., a child's sidewalk lemonade stand or a Girl Scout cookie sale). The court:
[H]ypothetical examples of how the government could theoretically apply an ordinance to target "more than the exact source of the 'evil' it seeks to remedy" are not sufficient to establish inadequate trailoring.
Opinion at 22, citing Wash. State Grange v. Wash. State Republican Party. The court relied heavily throughout the opinion on its 1986 ruling in ACORN v. City of Phoenix, upholding a virtually identical ordinance designed to prohibit ACORN members from soliciting donations from stopped drivers (but also applied to solicitations on adjacent sidewalks).
The court also ruled that the ordinance was not unconstitutionally vague.
Judge Wardlaw issued a sharp and lenghty dissent, writing that the ordinance is overbroad, that the majority wrongly applied ACORN (because that case was an as-applied, not facial, challenge in which overbreadth was not before the court), that the ordinance is not narrowly tailored to achieve the City's interests, and that the ordinance fails to leave open adequate alternative avenues for expression.
The ruling means that broadly sweeping bans on solicitatation in the Ninth Circuit will withstand First Amendment challenges, unless and until the full court reconsiders. But here's one such ban, from Arizona's new immigration law, that could test the limits:
C. It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work [or] solicit work in a public place . . . .
If this provision in Arizona's new law goes up, the state will undoubtedly take the position that the covered solicitation is for an illegal activity--employment by an unauthorized alien. (The City made that argument against plaintiffs' standing in Comite de Jornalers.) But as Judge Wardlaw writes in footnote 1 of her dissent:
But even if the City's prejudgment as to the day laborers' immigration status were correct, it is legally beside the point. The First Amendment protects individuals, regardless of their immigration status.
Beyond the standing question and the applicability of the First Amendment to solicitation for illegal work, the Arizona law sweeps far more broadly than the Redondo Beach ordinance: It applies to any "public place," not just streets and sidewalks. But Arizona's interest--enforcing employment laws against undocumented aliens--is broader too, perhaps making the law an acceptable fit under the time, place, manner test. Then instead of looking at fitness, the analysis could turn on the state interest question: Does a state have a significant interest in banning employment by undocumented aliens, in light of the federal government's plenary authority over immigration and its comprehensive immigration scheme?