July 30, 2010
New Web-Site Tracks Federal Judicial Nominations
The American Constitution Society recently launched a new web-site, JudicialNominations.org, that tracks "vacancies, nominations, and other developments in the courts," including congressional statements, video, and actions.
This is an outstanding resource for anyone interested in the federal judiciary--user-friendly, comprehensive, and full of well organized material.
The Individual Health Care Mandate and Enumerated Powers at SEALS
The Southeastern Association of Law Schools, or SEALS, a regional organization that also includes affiliate schools from around the country, kicked off its annual conference on Friday. The program includes a number of constitutional law panels, perhaps most notably this one on the last day, Thursday, August 5:
The Individual Health Care Mandate and Enumerated Powers, sponsored by the Federalist Society
Shortly after the health care reform bill was signed into law, the attorneys general of 20 states filed lawsuits challenging the individual mandate as exceeding Congress's powers. This panel will consider the mandate's constitutionality, as well as procedural issues presented by the litigation.
Speakers: Professor Randy Barnett, Georgetown; Mr. David Kopel, Research Director, Independence Institute; Professor Gilliam Metzger, Columbia; Professor Jack Balkin, Yale
We've posted most recently here.
The Inconsistent Tenth Amendment?
That was the original title of this Op-Ed, published in the Los Angeles Times today here.
July 29, 2010
Obama as Bush 2.0 on the National Security Constitution
The Obama administration has embraced some of the most dangerous and expansive national security positions of the Bush administration and threatens to set a new baseline for presidential authority, according to a report just released by the ACLU. The report, Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration, argues that the Obama administration's significant progress in certain areas related to national security are more than offset by the administration's backtracking to the Bush administration positions. From the Introduction:
But in the eighteen months since [President Obama issued a series of executive orders repudiating the Bush policies on torture, interrogation, secret detention, and Guantanamo Bay], the administration's record on issues related to civil liberties and national security has been, at best, mixed. Indeed, on a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration. There is a real danger, in other words, that the Obama administration will preside over the creation of a "new normal."
The report examines administration policies on government transparency and release of information, accountability of government officials for torture, indefinite executive detention, targeted killings, military commissions, and government surveillance.
This is a good read and an important part of the continuing conversation about administration national security policies. We routinely cover these issues--just check out our posts under the War Powers tag--and have similarly concluded that the Obama administration has adopted some of the Bush administration's constitutional positions on presidential authority and national security. (I also make the argument on the Obama administration's use of the state secrets privilege here.)
But the report's conclusion that the administration "will enshrine permanently within the law" certain policies and practices is perhaps overly dire. For example, some of President Obama's positions have received push-back from Congress; and President Obama has repeatedly signaled that Congress matters--that he will respect Congress in acting under the national security constitution. Unlike President Bush, President Obama has relied only sparsely on inherent executive authority under Article II, instead looking first to congressional authorization for his actions. His consistent reliance on the AUMF before any inherent Article II authority is a good example.
Moreover, some of the Obama administration's positions have received push-back from the courts. Most recently, federal courts have rejected the administration's more outlandish positions in Guantanamo habeas cases. (The administration itself scaled back its prior expansive definition of a detainable person.) The full Ninth Circuit now has a chance to reject the administration's extreme position on the state secrets privilege in the Jeppesen case.
Finally, the administration's actions alone simply cannot "enshrine permanently in the law" those extreme policies and positions that never reach Congress or the courts, especially for a president who claims to rely sparsely on inherent Article II authority. In these areas the President at most establishes an executive precedent. The practice and precedent of President Obama will be important, to be sure, in interpreting future executive authority, but this is not "enshrin[ing] permanently in the law." (This kind of past practice doesn't bind a future executive to also adopt it. Instead, at most, it sets an outer limit to presidential authority with reference to what President Obama did.)
But in the end, it's exactly this practice and precedent in these limited but important areas that make some of President Obama's national security positions potentially durable beyond the next two or six years. The ACLU report thoughtfully examines these and well captures their potential durability in its apt phrase "The New Normal."
July 28, 2010
Federal Court Issues Preliminary Injunction for Parts of Arizona Immigration Statute SB 1070
Federal District Judge Susan Bolton has issued her opinion enjoining the enforcement of certain sections of Arizona SB 1070 including:
- Portion of Section 2 of S.B. 1070, codified as A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person
- Section 3 of S.B. 1070, codified as A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers
- Portion of Section 5 of S.B. 1070, codified as A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work
- Section 6 of S.B. 1070, codified as A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States
Judge Bolton's opinion considers the statutory provisions separately, noting that the statutory scheme is not singular and that the statute provides for severability. The opinion found that the Government demonstrated a likelihood of success on the merits in its arguments for the unconstitutionality of the above provisions, applying preemption doctrine under the supremacy clause. (We've previously discussed the filing of the DOJ complaint here and the preemption arguments here).
Regarding the irreparable harm requirement, the Judge reasoned the Federal Government would suffer irreparable harm "because the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law." (Opinion at 34).
On the balance of equities, the judge concluded they weighed in favor of preserving the status quo:
The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws. The Court therefore finds that preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced.
(Opinion at 35, citations omitted).
The controversial Arizona statute, scheduled to go into effect July 29, 2010, will thus become effective without the above provisions.
[Update: For a terrific analysis of the Judge's opinion, listen to an interview with Professor Jenny Rivera on NPR here]
[image: SB1070 protest via]
Massachusetts State Statute to Mandate Election of President By Popular VoteThe Massachusetts legislature has passed a “National Popular Vote” bill and sent it to the Governor. The law, a part of an “Agreement Among The States To Elect The President By National Popular Vote,” seeks to vitiate the Electoral College or at least dramatically change the way it operates.
The law provides in part:
Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.
The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”
The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.
Massachusetts is the sixth state (after Maryland, New Jersey, Illinois, Hawai’i and Washington) to pass the law, which will only become effective when “states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.”
The organization also contends the state compact is well within the ambit of Article II section 1 clause 2 : “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." In brief, if the Legislature directs that the state electors cast their votes for whoever won the popular, then that would meet the constitutional requirement.
Subsequent constitutional amendments regarding presidential elections - - - Twelfth Amendment,Twentieth Amendment (regarding term to start in January), Twenty-third Amendment (including the District of Columbia within the Electoral College - - - do not alter this state power.
Congressional attempts to abolish the electoral college by constitutional amendment have not gained traction.
[SEE COMMENTS FOR FURTHER DISCUSSIONS OF CONGRESSIONAL ROLE].
[image: 2012 electoral college map via]
Immigration Laws Passed by States: Information Available
A report issued today by the National Conference of State Legislatures compiles bills proposed, vetoed, and adopted by state legislatures regarding immigration-related issues. This is a great research tool for anyone doing scholarship or litigation in this area, as well as preparing for class.
Summaries of the enacted laws - - - one table organized by state and another table organized by subject matter - - - are available at the NCSL website here. (Note: the website warns that the "NCSL publication and PDF are registered with the NCSL copyright and may not be reproduced, uploaded or distributed in any way in its entirety" so only a link is provided).
There is a wealth of information in the pdf summaries and discussed on the website. The summaries are 70 plus pages, in table form, with a bit of information and the bill number (but no hyperlink to the actual bill text). There is also a helpful database search feature here which provides links to find the text and legislative history of bills.
The NCSL represents its members - - - state legislatures - - - as continuing to "lead the way" on immigration issues and entitles its findings "States Step Up to the Plate on Immigration." It acknowledges the controversy that Arizona SB1070 has provoked. It also notes that "state laws related to immigration have increased dramatically over the past decade," with 300 bills introduced (and 38 enacted) in 2005, and more than 1500 bills (and 222 enacted) in 2009.
July 27, 2010
Senate Fails to Advance DISCLOSE Act
A day after President Obama's much-publicized scolding of Republicans on campaign finance reform, Senate Democrats failed to garner 60 votes to advance Senator Schumer's revamped DISCLOSE Act. (The House passed the earlier version last month.) The bill increases disclosure requirements for corporations and labor unions engaged in electioneering communications in response to the Supreme Court's ruling in Citizens United v. FEC. Schumer modified his original bill in order to attract Republican support--most likely from Senators Snowe, Collins, or Brown--in order to break the GOP filibuster.
Democrats will try again, and Schumer told The Hill that he would consider making additional changes to the bill to continue to try to attract a Republican.
Federalist Society Focuses on Washington State Supreme Court
The Federalist Society has announced the publication of The Washington Supreme Court and the State Constitution: A 2010 Assessment. The 35 page report highlights the takings clause provision of the Washington Constitution as it relates to private property rights. The report also discusses the state constitution's privileges or immunities clause, as well as other "individual rights" including free speech and gun possession.
[image: "Justices of the Washington Supreme Court posing for a "READ" poster for the Skagit Valley College’s library system on a community visit to the College on February 22, 2010" via]
July 26, 2010
Sanctuary Cities, Immigration, and Federal Preemption
The Obama administration is hypocritical for pursuing Arizona's law to control illegal immigration even as it ignores local governments that order employees not to ask about a person's immigration status or to report it to federal agents, critics claim. These so-called sanctuary cities are local governments that have elected "not . . . to use their resources to enforce a federal law," according to a Justice Department spokesperson quoted in Monday's Chicago Tribune. Critics of the administration claim that sanctuary cities run up against federal law, and are therefore preempted by federal law, every bit as much as--indeed, more than--Arizona's SB 1070. (The Justice Department filed its complaint against Arizona alleging federal preemption earlier this month. Judge Bolton of the District of Arizona heard arguments on the Department's motion for a preliminary injunction last week. The law is scheduled to take effect Thursday.)
The preemption arguments against sanctuary cities are similar to the preemption arguments against SB 1070: sanctuary cities regulate in an area, immigration, that is granted exclusively to the federal government and in which the federal government has occupied the field; and sanctuary cities violate a federal prohibition against any government restricting its employees from reporting to the feds the immigration status of any individual:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
8 U.S.C. Sec. 1373(a). The provision includes no penalties or enforcement tools.
Critics say the administration is hypocritical for suing Arizona on a preemption theory while ignoring sanctuary cities. More than hypocrisy, though, critics charge that the administration has its priorities exactly backwards. After all, Arizona is simply trying to enforce federal law, while sanctuary cities are actively violating it. Sanctuary cities, and not Arizona, critics argue, ought to be the federal target.
July 25, 2010
District Court Grants Another Habeas Petition
The government failed to show by a preponderance of evidence that another Yemeni detainee at Guantanamo Bay was part of al Qaeda and therefore detainable, Judge Friedman (D.D.C.) ruled in an early July opinion released on Friday. The case, Almerfedi v. Obama is notable only for the government's shockingly weak case in support of detention--a feature of at least one other recent Guantanamo case involving a Yemeni.
The government in Almerfedi argued that Almerfedi was detainable because while staying at a guesthouse in Iran he acted as an al Qaeda facilitator helping foreign fighters infiltrate Afghanistan. The government also claimed that he actively associated with Jama'at al-Tablighi, an Islamic missionary organization that provided support to terrorist organizations and foreign fighters fleeing Afghanistan--an association that "was consistent" with the government's theory that Almerfedi was an al Qaeda facilitator, the government said.
But the government failed to show by a preponderance of the evidence that Almerfedi was even in Iran at the time, much less at a guesthouse, and much less at one affiliated with al Qaeda. And the government failed to show that Jama'at al-Tablighi, as an organization, provided support to al Qaeda or the Taliban.
The government's "guesthouse theory" fell short in another recent case, Abdah v. Obama, also involving a Yemeni. (The guesthouse in Abdah was alleged to be in Pakistan.) The government's case was equally thin there, and the government engaged in extraordinary footdragging, to boot.
At the same time, the government in Almerfedi adopted the higher "part of" standard (as in part of al Qaeda, and not merely providing support to al Qaeda)--the standard it switched to in yet another recent case out of the D.C. Circuit, Bensayah v. Obama--oddly raising the bar for itself while continuing to provide only the most spurious evidence against detainees.