Saturday, August 7, 2010

Groups Get License to Sue for Government-Ordered Extrajudicial Killing

The Center for Constitutional Rights and the ACLU this week received a license from the Treasury Department's Office of Foreign Assets Control to represent Specially Designated Global Terrorist and target of a government-ordered extra-judicial killing Nassar al-Aulaqi.  The license came one day after the groups filed suit claiming that OFAC's licensing regulations are unconstitutional.

The groups' case challenging the ordered extra-judicial killing can now move forward.  (The groups also announced that they would continue to challenge OFAC's licensing regulations as unconstitutional.)  No word yet on a complaint.

Here's the gist of their case against extra judicial killings, form the CCR resource page on al-Aulaqi's case:

While the government can legitimately use lethal force against civilians in certain circumstances outside of a judicial process, the authority contemplated by senior Obama administration officials is far broader than what the Constitution and international law allow.  Under international human rights law, lethal force may be used in peacetime only when there is an imminent threat of deadly attack and when lethal force is a last resort.  A program in which names are added to a list through a secret bureaucratic process and remain there for months at a time does not appear to be limited to imminent threats, and it is not at all clear that the U.S. government had exhausted other options before ordering Al-Aulaqi's execution.

Our analysis of government authority to order extra-judicial killings is here.


August 7, 2010 in Executive Authority, International, News, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, August 6, 2010

Kenyans Approve New Constitution

Kenyans voted overwhelmingly (67 percent in favor, with 72 percent turnout) this week to adopt a new Constitution, touted aggressively by nearly everyone from Kenyan President Mwai Kibaki to President Obama.  (The "nearly" is important; see below.)  By reports, the referendum and its aftermath were peaceful.  The NYT has its story here and an inspiring set of pictures here.


The new Constitution--weighing in at 179 pages--reins in historically expansive (and abusive) presidential power through separation of powers and checks and balances (among other features, such as constitutionally imposed government ethics standards, an independent electoral commission, and a progressive bill of rights).  It also includes much needed land reform.

Two provisions were particularly controversial (outside Kenya, if not within).  One established Muslim courts for family disputes; the other seemed to liberalize access to abortion.  The latter provision is causing the Obama administration a minor headache with some in Congress who object to the administration's support for the new Constitution.  (There appears to be no development in a requested USAID IG investigation into the matter, but we'll stay on top of it.)

President Kibaki's statement on the vote is here; the Kenyan Broadcasting Corporation reports here; has a opinion piece here, with links on the site to other reports and resources; the BBC reports here.


August 6, 2010 in Comparative Constitutionalism, International, News | Permalink | Comments (0) | TrackBack (0)

Thursday, August 5, 2010

Senate Confirms Kagan

The U.S. Senate voted Thursday 63-37 to confirm Elena Kagan to the Supreme Court.  The vote split largely along party lines, but five Republicans (Susan Collins, Lindsey Graham, Judd Gregg, Richard Lugar, and Olympia Snowe) voted yes and one Democrat (Ben Nelson) voted no.  The New York Times has an interactive map of the vote here.

Kagan is President Obama's second appointment to the Supreme Court (after Justice Sonia Sotomayor, confirmed last summer) and the fourth woman to serve on the Court (after Justices Sandra Day O'Connor, Ruth Bader Ginsburg, and Sonia Sotomayor).  This coming term will be the first in which three women sit together on the Court.  Kagan succeeds Justice John Paul Stevens.


August 5, 2010 in News | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 4, 2010

District Judge Finds Proposition 8 Unconstitutional: Opinion and Brief Analysis

The anticipated Proposition 8 opinion has just been issued: Judge Vaughn Walker has concluded that Proposition 8 as enacted is unconstitutional under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment in a 138 page opinion here.

Approximately one hundred pages of the opinion discuss the witnesses and make findings of fact.  The Judge's opinion is exceedingly detailed and makes specific credibility determinations about witnesses and testimony.   Our recap of the trial, linking to daily posts of the trial and witnesses is here.

Judge Walker finds that there is a "fundamental right to marry" which Proposition 8 burdens in violation of the Due Process Clause.   He also finds that the sexual orientation classification does not satisfy the rational basis standard and thus violates the Equal Protection Clause.

Again, with great detail and reference to specific testimony, Walker examines each of the state's interests (or more accurately, the interests advanced on behalf of the Proposition 8 Proponents at trial), and finds that they do not satisfy the standard.

Judge Walker's conclusion is short:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.

Walker thus enjoined the enforcement of Proposition 8.

Perhaps anticipating this conclusion, proponents of Proposition 8 reportedly filed a motion to stay the Judge's ruling the evening before it was issued.  


Defendant-intervenors (“proponents”) have moved to stay the court’s judgment pending appeal. Doc #705. They noticed the motion for October 21, 2010 and moved to shorten time. Doc #706.

The motion to shorten time is GRANTED.

Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to submit their responses to the motion to stay on or before August 6, 2010, at which time the motion will stand submitted without a hearing unless otherwise ordered.

The clerk shall STAY entry of judgment herein until the motion to stay pending appeal, Doc #705, has been decided.


[see also comment]

[update stay order here]

The Proponents of Proposition 8 will undoubtedly appeal to the Ninth Circuit. 


August 4, 2010 in Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Reconstruction Era Amendments, Sexual Orientation, Sexuality | Permalink | Comments (2) | TrackBack (0)

Tuesday, August 3, 2010

Missourians Nullify Federal Health Insurance Mandate

Missourians overwhelmingly voted to nullify the federal health insurance mandate by adopting state law, effective immediately, that allows Missourians not to purchase health insurance in violation of the federal mandate.  This was the first of at least three state referenda on the federal mandate.  We posted previously on Missouri's referendum here.

The vote will have no constitutional effect (with one possible and recently created exception, discussed below).  The constitutional question for the federal health insurance mandate is whether Congress has authority to enact it by way of the Commerce Clause or General Welfare Clause.  If Congress has authority--a question to be determined in the courts--the several state attempts to nullify the federal law are invalid.  If Congress lacks authority, they are irrelevant.  Either way, Missouri's new law has no substantive effect.

But Monday's ruling in the Virginia case challenging the federal mandate suggests that the Missouri vote might be constitutionally relevant in one way: to establish state standing to challenge the federal mandate in court.  In Monday's district court ruling denying the federal government's motion to dismiss, the court ruled that Virginia had standing to challenge the federal mandate because Virginia sought to enforce its own nullification law, the Virginia Health Care Freedom Act.  Virginia seemed to have adopted this law for the sole purpose of establishing standing in its case against the federal government--and it worked.  Missouri, by contrast, passed its nullification law by referendum--a perhaps less obviously opportunistic way to pass a conflicting state law.  If Virginia's Freedom Act is sufficient to establish standing, Missouri's new nullification law is even more, should Missouri file a case.


August 3, 2010 in Congressional Authority, Federalism, News | Permalink | Comments (1) | TrackBack (0)

Birthright Citizenship, Fourteenth Amendment, and Constitutional Interpretations

The Fourteenth Amendment begins, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Some Senators want Congress to “reconsider” this provision which confers what has come to be called "birthright citizenship."   In the words of Arizona Senator Jon Kyl:

“There is a constitutional provision in the 14th Amendment that has been interpreted to provide that, if you are born in the United States, you are a citizen no matter what. … And so the question is, if both parents are here illegally, should there be a reward for their illegal behavior?”

Kyl has suggested to fellow Senators that  “we should hold some hearings and hear first from the constitutional experts to at least tell us what the state of the law on that proposition is.”

A good place to start might not be with a "constitutional expert," but with Brook Thomas’ new article in Law and Literature, entitled The Legal And Literary Complexities of U.S. Citizenship Around 1900.  (It is available on westlaw and lexis, and in print, Law and Literature Jul 2010, Vol. 22, No. 2: 307–324).


Thomas (pictured above), an English professor, has long been considering citizenship in historical and literary contexts and is the author of several books on related subjects, but this essay is refreshingly brief.  Thomas writes:

One year before he argued Homer Plessy's case before the Supreme Court, Albion W. Tourgée wrote, "Citizenship in the abstract is the most comprehensive, complex, difficult and important of human relations, and American citizenship is especially complex in its character and relations." This essay explores those complexities by cross-examining three Supreme Court cases decided within five years of one another--Plessy v. Ferguson (1836), U.S. v. Wong Kim Ark (1898), and Downes v. Bidwell (1901).   

Thomas also turns to several novels from the period to illuminate the contexts of the cases.

Thomas notes that the politics of the debates of 1900 are very different from the politics of the debates of 2010, including those surrounding birthright citizenship, an issue “supposedly resolved by Wong Kim Ark.”  Nevertheless, he argues

we cannot properly understand the complexities of our present debates without understanding the complexities of those in the past. I also suspect that our understanding would be enhanced if we turned to some recent works of literature.

Perhaps Professor Brook Thomas might be attempting to elucidate some of the complexities of the present debate by answering questions from Senator Kyl in a future hearing


August 3, 2010 in Current Affairs, Fourteenth Amendment, History, Interpretation, Reconstruction Era Amendments, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Groups Sue to Represent Government-Designated Terrorist

The Center for Constitutional Rights and the ACLU filed suit today against the federal government to be able to provide uncompensated legal representation to Nassar al-Aulaqi, a U.S. citizen labeled a "Specially Designated Global Terrorist" (SDGT) and listed on the government's roll of suspected terrorists approved for targeted killing.  CCR's case page (with litigation docs) is here; the memo in support of the motion for a TRO and preliminary injunction is here.  We posted on the constitutionality of al-Aulaqi's targeted killing here.

At issue in the case is not (yet) the legality of targeted killing.  Instead, the CCR and ACLU simply seek to provide uncompensated legal representation to al-Aulaqi--to later argue that his targeted killing violates the Constitution and U.S. law.

Treasury Department regulations act as a barrier to representation.  Those regulations require Department approval before attorneys can represent SDGTs.  The Office of Foreign Assets Control (OFAC) enacted the regulations to implement President Bush's Executive Order 13,224, declaring an emergency in the wake of the 9/11 attacks and blocking property of persons designated as SDGTs.  The regulations not only block SDGTs' property; they also require OFAC to license legal representatives of SDGTs:

The provision of the following legal services to or on behalf of [SDGTs] is authorized, provided that all receipts of payment of professional fees and reimbursement of incurred expenses must be specifically licensed [and for authorized purposes].

31 C.F.R. Sec. 594.506(a).

The CCR and ACLU argue that the regulations exceed OFAC's statutory authority, violate the First Amendment, and violate separation-of-powers principles.

OFAC's statutory authority comes from the International Emergency Economic Powers Act (IEEPA), which grants the President certain authority that "may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared."  50 U.S.C. Sec. 1701(b).  (President Bush issued EO 13,224 under the IEEPA, among other authorities.)  The Act includes authority to

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.

50 U.S.C. Sec. 1702(a)(1)(B).  The CCR and ACLU argue that the IEEPA is directed at regulating certain international economic transactions, not the kind of uncompensated legal representation regulated by the OFAC licensing scheme and that they seek to provide in this case.  Thus OFAC's licensing scheme "ultra vires" and beyond the Office's authority.

As to the First Amendment, the CCR and ACLU argue that OFAC's licensing scheme restricts their right as advocacy organizations to solicit and represent clients, NAACP v. Button, In re Primus, and operates as a prior restraint on speech.

Finally, they raise a separation-of-powers concern:

Because a lawsuit cannot be filed for the benefit of Mr. Aulaqi without an OFAC license, OFAC's regulations have the effect of giving the executive branch effective veto power over a citizen's right to go to court to challenge executive branch conduct.  The notion that the government can compel a citizen to seek its permission before challenging the constitutionality of its actions in court is wholly foreign to our constitutional system.  The Supreme Court has consistently reiterated a "well-settled presumption favoring interpretation of statutes that allow judicial review of administrative action." . . .  In this case, OFAC's restrictions are particularly severe: they prevent designated individuals, including Mr. Aulaqi, from vindicating their rights in court without the express permission of the U.S. government.

Memo at 16 (citation omitted).


August 3, 2010 in Congressional Authority, Executive Authority, Foreign Affairs, Fourteenth Amendment, Jurisdiction of Federal Courts, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, August 2, 2010

Federal Judge Allows Virginia's Health Care Case To Proceed

Judge Henry E. Hudson (E.D. Va.) on Monday denied the federal government's motion to dismiss the State of Virginia's case challenging the federal health insurance mandate, enacted this spring as part of the federal health care reform bill.  The ruling--the first federal court ruling on the health insurance mandate--allows the case to proceed beyond the pleadings and says only that Virginia can bring the suit and has alleged minimally sufficient facts in its complaint to withstand a judgment on the pleadings.  (Thanks to Courthouse News for the link to the ruling.)

But Judge Hudson also wrote that the health insurance mandate marked bold new territory for the federal government and strongly suggested that it pushed the outer boundaries of congressional authority--if not outright exceeded congressional authority. 

The government in its motion argued that Virginia lacked standing, that the case was not yet ripe, and that Congress had authority to enact the mandate under the Commerce Clause and the General Welfare Clause.  Judge Hudson rejected these arguments.  He wrote that Virginia had standing and that the case was ripe, because Virginia was defending its own law, the Virginia Health Care Freedom Act, which prohibits any government from requiring its citizens to purchase health insurance and because the state had taken measures to comply with the federal mandate.  In so ruling, Judge Hudson rejected the government's argument that the Virginia Health Care Freedom Act was merely a gambit to gain standing to challenge the mandate in federal court. 

On the merits, Judge Hudson wrote that the government did not show that Virginia's complaint failed to state a claim upon which relief could be granted.  He wrote that the mandate was novel--a congressional attempt to regulate a decision "not to participate in interstate commerce"--and that the law was unsettled:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate--and tax--a citizen's decision not to participate in interstate commerce.  Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue.  No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce.  Given the presence of some authority arguably supporting the theory underlying each side's position, this Court cannot conclude at this stage that the Complaint failed to state a cause of action.

Op. at 31. 

Judge Hudson was careful to limit his ruling to the government's motion to dismiss and not to prejudge the ultimate outcome.  But at the same time, he clearly framed the issues in terms of Virginia's theory of the case--that the mandate is a regulation of a decision not to participate in the interstate economy--and commented throughout on the "complex constitutional issues."  This language does not look good for the federal government, which argued, and lost, that the mandate is a simple regulation of interstate commerce that fits comfortably into the Supreme Court's jurisprudence on the Commerce Clause and General Welfare Clause.  The federal government will likely have a tough time getting Judge Hudson to move away from Virginia's view of the case.

But as Judge Hudson also writes, he will certainly not have the last say on this.


August 2, 2010 in Congressional Authority, Federalism, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, August 1, 2010

Missourians Vote on Health Insurance Mandate Nullification Measure

Missourians on Tuesday will vote on a referendum aimed at nullifying the individual health insurance mandate enacted as part of the federal health care overhaul earlier this year.  The ballot proposal, Proposition C, asks voters if the Missouri statutes--not its constitution--shall be amended to

[d]eny the government authority to penalize citizens for refusing to purchase private health insurance or infringe upon the right to offer or accept direct payment for lawful healthcare services?

Missouri is the first of at least three states to consider such a measure.

Proposition C is quite likely to pass on Tuesday, according to polls.  Democrats have all but ignored it and framed it as a meaningless Republican straw poll; Republicans have framed it as a referendum on federal health care reform, an expansive federal government, and the Obama administration.  The NYT reports here.

Whatever the measure's political significance, the ballot results will have no legal significance.  If the federal government has authority to enact the individual health insurance mandate--a hotly contested issue, which we've covered here, here, here, here, and here--the Supremacy Clause prohibits states from interfering and nullifying.  In other words, if the federal government has authority to do this--a question that will ultimately be decided by the courts--Missouri can't stop it by ballot initiative.

And if the federal government doesn't have authority, Missouri's vote will be irrelevant.


August 1, 2010 in Congressional Authority, Federalism, News, Recent Cases, Tenth Amendment | Permalink | Comments (3) | TrackBack (0)

Kevin Johnson on Racial Profiling

The "racial profiling" aspect of Arizona SB 1070, the controversial statute partially enjoined by a federal district judge last week, has been subject to much discussion.  In an article published in April (the month SB 1070 was signed into law), UC Davis Dean, Kevin Johnson, trenchantly discusses racial profiling as a matter of constitutional law.  He writes:

It may seem surprising to most readers but racial profiling in law enforcement has long been permitted, if not expressly authorized, by U.S. constitutional law. This is true despite the civil rights revolution of the 1950s and 1960s and the generally positive trajectory of racial progress in the United States over the last century. Indeed, in two major post-civil rights movement decisions that are the subject of this Essay, the U.S. Supreme Court has affirmatively contributed to the predominance of racial profiling in law enforcement in modern America.

Johnson The article is entitled How Racial Profiling in America Became the 'Law of the Land': United States v. Brignoni-Ponce and Whren v. United States and the Need for Rebellious Lawyering (draft available on ssrn here), 98 Georgetown Law Journal 1005 (2010).  The cases in the title, Brignoni-Ponce and Whren, from 1975 and 1996 respectively, are not in the standard "ConLaw" casebooks because they arise under the Fourth Amendment.  For those unfortunate ConLawProfs who do not also teach a course entitled "Criminal Procedure," the Fourth Amendment (like the Sixth and some clauses of the Fifth) can be outside the usual treatments of "Constitutional Law."   But as Dean Johnson makes clear, the Fourth Amendment and Equal Protection are inextricably interwoven and our very notions of "constitutional rights" are often at issue in our street-level interactions with government officials.   

Johnson suggests that "rebellious lawyering" should include addressing criminal procedure reforms and equality race-based jurisprudence (or legislative action).  However, advocates should also:

highlight the effects of race-based law enforcement on the lives of real people, such as Humberto Brignoni-Ponce, a U.S. citizen of Puerto Rican ancestry stopped solely because of his “Mexican appearance,” and Michael Whren and James Brown, two young African-American men who were drug suspects simply because of their race and spent many years in prison as a result. Highlighting the human impacts of the law can be an effective tool for social change in the political process.

98 Georgetown L.J. at 1077.  Johnson's ending is a fitting one, for parts of the essay are adapted from the anthology Race Law Stories (2008).


August 1, 2010 | Permalink | Comments (0) | TrackBack (0)