August 14, 2010
State Department IG Clears Embassy Officials in Kenyan Abortion Debate
The State Department Office of Inspector General this week cleared U.S. embassy officials in Nairobi of any wrongdoing in relation to their alleged advocacy of the abortion provision in the recently adopted Kenyan Constitution.
The OIG report came in response to complaints from three Republican House members that embassy officials pushed a provision in the proposed Kenyan Constitution that, according to them, liberalized abortion rights. The members claimed that officials' advocacy violated the Siljander Amendment, which states that "none of the funds made available under this Act may be used to lobby for or against abortion." P.L. 111-117, 123 Stat. 3035, 3324. We previously covered the dispute, with links to sources, here.
The OIG report concluded that "it is U.S. policy to actively support the Kenyan reform agenda, in which the constitutional review process figures prominently," but that
[a]t no time during the review did the OIG inspectors uncover any evidence that U.S. embassy officials made any private or public statements to Kenyan government officials, NGOs or any other actors expressing either a positive or negative position on the abortion provision in the draft Kenyan constitution, nor did they attempt to influence any Kenyan's opinion, either positively or negatively, on the abortion provision.
Renaming, Amending, and "Wiki-ing" the Constitution
The Constitution is the subject of humorous treatment from John Hodgman and Jon Stewart on The Daily Show.
The skit starts with "birthright citizenship" under the Fourteenth Amendment, then hits on Originalism and interpretation, the Second Amendment, judicial review, the First Amendment's Establishment Clause, and democratizing the document as an opensource document on the internet (including a werewolf amendment).
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|You're Welcome - Constitutional Crisis|
Social Security: Questions about its Constitutionality on its Diamond Anniversary
The Social Security Act of 1935, spear-headed by Franklin Delano Roosevelt, turns seventy-five today.
[image: President Roosevelt signing the Social Security Act, via].
But as Justice Cardozo said in 1937:
The Social Security Act (Act of August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C. c. 7, (Supp.)), is challenged once again.
Although the Court upheld the Act in the 1937 cases of Helvering v. Davis (which began with Cardozo's statement above) and in Steward Machine Company v. Collector of Internal Revenue Service, there are those who continue to argue it is unconstitutional, including Republican Congressperson John Shadegg.
In service of that conclusion, Shadegg has sponsored the Enumerated Powers bill, which provides:
Each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. The failure to comply with this section shall give rise to a point of order in either House of Congress. The availability of this point of order does not affect any other available relief.
Such a requirement does not seem problematic at first blush, although the Court could presumably find that Congress did not have power under the rational Congress articulated but nevertheless possessed authority pursuant to a different constitutional power.
August 13, 2010
Constitutional Law Position at Brooklyn College, CUNY
Position Announcement: Herb Kurz Endowed Chair in Constitutional Law and Civil Liberties at Brooklyn College, City University of New York (pictured left).
Brooklyn College invites applications for the Herb Kurz Endowed Chair in Constitutional Law and Civil Liberties. Research and writing in any of the following areas is of particular interest: Congress’ commerce-clause powers over the economy and other sectors of national life; executive power during wartime; freedom of speech; the rights of criminal suspects and prisoners; equal protection and due process for people of color, women, and LGBT communities; the rights and standing of immigrants and migrant communities; the role of international law, particularly human rights law, in constitutional interpretation. This position is at the Associate or Full Professor level. Candidates should have a PhD in political science or any related discipline in the humanities and social sciences and/or a Juris Doctor, and a distinguished record of teaching, scholarship, and leadership in the field of constitutional law.
Position listing here.RR
August 12, 2010
Perry v. Schwarzenegger, Proposition 8, the Stay, and Standing to Appeal
Judge Walker has lifted the stay of Perry v. Schwarzenegger finding Proposition 8 unconstitutional, or, more precisely, in an Order issued today, he has ordered that the previous "judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8."
One of the more interesting aspects of the Order is the discussion of whether the Proponents have satisfied the "likelihood of success on the merits" prong of a stay analysis. This prong is always a difficult one, especially when it is being decided by the same judge who issued the original order: in essence, it requires the judge to conclude that it is likely the decision will be reversed. However, Perry introduces another wrinkle given the uncommon procedural posture of the case. Recall that the named defendants, Governor Schwarzenegger and other California officials, are not defending the case. Instead, Proposition 8 was defended by the "proponents" of Proposition 8.
Judge Walker writes:
If, however, no state defendant appeals, proponents will need to show standing in the court of appeals.
Proponents’ intervention in the district court does not provide them with standing to appeal.
Order at 5. Walker cites Arizonans for Official English v Arizona, 520 US 43, 67 (1997), in which a unanimous Supreme Court held that the organization, Arizonans for Official English (AOE) that had sponsored the English-only constitutional amendment passed by ballot initiative and AOE's chairperson, Robert Park, did not have standing. The Supreme Court wrote:
Petitioners argue primarily that, as initiative proponents, they have a quasi legislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of [the state constitutional amendment]. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated.
520 US at 67.
In his Order, Walker continues,
Proponents chose not to brief the standing issue in connection with their motion to stay, and nothing in the record shows proponents face the kind of injury required for Article III standing. As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.
Order at 6.
Certainly, Perry v. Schwarzenegger has tremendous import for same-sex marriage in California and elsewhere.
However given the burgeoning number of ballot initiatives about a vast array of subjects, Perry v. Schwarzenegger raises potential issues about judicial review of all such laws.
What happens when the state does not approve and therefore does not defend a law adopted by ballot initiative? At trial in Perry, the judge allowed "Proponents" of the ballot initiative to defend the law. And, according to the judge, their performance was not very exemplary: "Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8." Order at 6.
What if the Proponents lack Article III standing to appeal the decision finding the law unconstitutional? This could essentially insulate the judge from being appealed.
On the other hand, what if the Proponents are granted Article III standing? This might dilute Article III standing or allow private parties - - - or certain private parties - - - to assume the mantle of government and articulate its interests.
August 12, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Standing | Permalink | Comments (0) | TrackBack
Should I Tell You If I Think This Salad is Unhealthy?: Food Disparagement Laws and Chilled Speech
Another packaged salad has been recalled by Fresh Express. This may not seem as if it presents a constitutional issue, but perhaps it does.
Suppose I think three recalls in four months is pretty extreme and I start saying things like
"packaged salad is inherently unhealthy."
I am not really saying that; it is a hypothetical!
And I want to make it clear that it is a hypothetical because of the continuing existence of those notorious veggie-libel statutes. There are more than a dozen, including an Ohio statute that provides:
Any producer of perishable agricultural or aquacultural food products that suffers damage as a result of another person’s disparagement of any such perishable agricultural or aquacultural food product or any association representing producers of perishable agricultural or aquacultural food products that have suffered damage as a result of another person’s disparagement of any such perishable agricultural or aquacultural food product may bring an action for damages and for any other relief a court having jurisdiction considers appropriate. If the plaintiff establishes that the disseminator knew or should have known that the information was false, damages may be awarded, including compensatory and punitive damages, reasonable attorney’s fees, and costs of the action.
I might be able to argue, of course, that "packaged salad is inherently unhealthy" is only my opinion. And perhaps I might even be able to prevail on a "falsity" standard. And of course I'd raise the First Amendment.
But I'd be worried that I might not prevail, and if I don't, I would be paying punitive damages and attorneys fees, not to mention my own litigation fees.
And if I did start talking about unhealthy packaged salads - - - which I am not! - - - it might be that I'd be contacted by an attorney representing salad packagers who would advise me about the pertinent statutes. Would that really happen? While there are some documented incidents from a decade ago, the present situation is less well known. A group called "Signal Interference" is collecting "any threats of litigation using food disparagement laws as their premise," more here.
Meanwhile, I don't have a thing to say about my dinner.
FBI Lifts Gag on National Security Letter Recipient
The FBI this week lifted its gag order on Nick Merrill, the operator of an internet service provider and the recipient of a 2004 National Security Letter (redacted version) ordering him to turn over records for one of his company's customers. The FBI previously prevented Merrill from disclosing his receipt of the letter, and, as a result, this is the first time he could identify himself as Nick Merrill (and not "John Doe," as he's identified in litigation documents).
NSLs are orders by the FBI, authorized by 18 U.S.C. Sec. 2709, to telecommunications companies to turn over--without judicial review or order--records of customers relevant to terrorism investigations.
The FBI's action was part of a settlement last month in Merrill's long-running case--and first-ever case by the recipient of an NSL against the FBI--challenging the NSL program and the FBI's gag order as unconstitutional. The ACLU has a resource page, with a timeline and litigation material, here.
The settlement and gag order lift come at the same time that the Obama administration is pushing to clarify--or to expand, depending on the source--the FBI's authority to issue NSLs. The current statute lists four types of information that the FBI can seek through NSLs: "the name, address, length of service, and local and long distance toll billing records," 18 U.S.C. 2709(b)(1). The Office of Legal Counsel opined in 2008 that the list does not include other information, such as "electronic communication transactional records." Now the Obama administration seeks to insert that four-word phrase into the list of things the FBI may request.
The administration says that this addition is a mere clarification to an ambiguous statute. After all, it claims, the phrase appears in an earlier section of the statute, 18 U.S.C. 2709(a):
A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
The OLC opined that the qualification "under subsection (b) of this section" limited the information that the FBI may seek to the four categories delineated in subsection (b)(1) (quoted above). The administration claims that adding the new phrase to subsection (b) would simply clarify the scope of NSLs by mirroring the language in subsection (a).
Opponents of the measure claim that the addition would mark a dramatic increase in authority, allowing the FBI to seek subscriber information from everyone from Google to Facebook, and to potentially cover a much wider range of information--much more than just logs of e-mail addresses or websites visited.
Merrill's 2004 NSL specifically asked for "names, addresses, lengths of service and electronic communication transactional records, to include existing transaction/activity logs and all e-mail header information (not to include message content and/or subject fields) (emphasis added)--more than what (b)(1) allows (and broader than the 2008 OLC reading). Thus Merrill's letter gives a glimpse of what an NSL letter might look like if the Obama administration gets its additional category under (b)(1).
August 11, 2010
Nicaragua's Looming Constitutional Crisis
Nicaraguan Supreme Court justices today purported to select replacements for protesting justices who have boycotted court sessions for the last ten months, according to an AP story reported in the New York Times.
The boycotting justices, supporters of the conservative Liberal Constitutionalist Party, have butted heads with justices who support President Daniel Ortega and the Sandinistas over presidential appointment authority and constitutional term limits. Problems came to a head between the two groups of justices when the Court ruled last October that President Ortega could run for a second consecutive term in 2011, despite the restriction in Article 147 of the Constitution that prohibits the president from running for two consecutive terms. (The Constitution permits a maximum of two terms, but not two consecutive terms.) The judgment has been criticized as "ruling a portion of the Constitution unconstitutional."
Since the ruling, Ortega extended terms of 25 government officials, including two supporters on the Court, even though their constitutional terms expired. Ortega made the move after a highly fractured legislature was unable to name replacements.
Ortega seems intent to push forward with his reelection campaign, but perhaps (wisely) counting on more than the Court's ruling last year to sanction his candidacy. His chief economic adviser told McClatchy that Ortega would seek the 56 votes he needs in the National Assembly to amend the Constitution and permit his reelection to a second consecutive term.
Meanwhile, the government has flatly rejected suggestions for election monitors. Ortega's opponents see this as just yet another sign that he won't campaign, or win (if he does), fairly.
ABA Resolves that States Adopts Same-Sex Marriage
The ABA overwhelmingly adopted a resolution urging state (as well as territorial and tribal) governments to permit same-sex marriage:
RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.
The Recommendation came from the Section on Individual Rights and Responsibilities in addition to more than two dozen other ABA divisions and organizations including the New York State Bar Association, the Massachusetts Bar Association, the ABA General Practice, Solo, and Small Firm Division, the ABA Young Lawyers Division, the Hispanic National Bar Association, and the National Asian Pacific American Bar Association.
The Executive Summary for this Resolution does not make explicit constitutional arguments, but does specifically mention the inequality of other-than-marriage schemes:
1. Summary of the RecommendationThe recommendation urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex.
2. Summary of the Issue that the Resolution AddressesExcluding same-sex couples from the right to marry has the practical impact of denying them and their children a host of rights and responsibilities that exist under both state and federal law. State protections automatically extended to married spouses include the ability to make health care decisions for one’s spouse, the right to direct the remains of a deceased spouse and inherit from his or her estate absent a will, the security of being able to provide health insurance for one’s spouse, and the peace of mind knowing that both adults’ relationships with children born to the couple will be protected. In a comprehensive report adopted in 2005, the New York State Bar Association documented numerous areas in which New York law, for example, provides specific rights and benefits reserved to married couples. On the federal level, there are at least 1138 federal statutory provisions in which marital status is a factor in determining whether an individual is eligible for federal rights or benefits, including family medical leave, health insurance benefits, and Social Security survivor benefits. In addition, the denial of these important protections harms the hundreds of thousands of children being raised by same-sex couples. The experiences of those states that have created legal relationships such as domestic partnerships that are intended to mirror the attributes of marriage, make plain that these separate and inferior systems perpetuate rather than cure the inequality that results from denying marital recognition to same-sex couples.
3. Please Explain How the Proposed Policy Position will Address the Issue
For over 30 years, ABA policy has kept pace with our society’s evolving understanding that gay and lesbian people are healthy, functioning contributors to our society who face discrimination – both as individuals and as families. Over that time, the ABA has taken a leading role in urging the elimination of discrimination against lesbian and gay people and their families. This recommendation – urging the elimination of legal barriers to civil marriage between same-sex couples -- builds upon this prior policy.
4. Summary of Minority Views
No minority views or opposition have been identified.
The Resolution and Recommendation is available as part of the Annual Meeting Executive Summaries, here (San Francisco Annual Meeting, page 164-165). The Resolution and Recommendation is also available with a supporting detailed report here.
August 10, 2010
Khadr's Military Commission Trial Begins Today
Guantanamo detainee Omar Khar's military commission trial--the first contested military commission trial in the Obama administration--begins today, after the Supreme Court on Friday denied Khadr's application for a stay. We most recently posted on Khadr's case here.
According to Ann Riley at the Jurist, Khadr pleaded not guilty to murder and terrorism charges. The presiding military judge, Army Colonel Patrick Parrish, ruled that Khadr's confessions, allegedly obtained under threats of rape and death, are admissible.
Khadr rejected a plea deal in July for a five-year prison sentence.
Bring Back O'Connor, Souter, and Stevens?
One solution to the "recusal" problem, at least on the United States Supreme Court, is to utilize the so-called "back bench."
As the Washington Post reports:
Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) is pondering whether a change is needed. He's considering legislation that would allow a retired member of the Supreme Court to replace a justice who has recused himself -- or herself -- in a particular case.
This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of partiality.
One potential problem is that O'Connor, Souter, and Stevens, are now considered "liberal" judges (though of course each was appointed by a Republican President: Reagan, Bush, and Ford respectively).
[image right: O'Connor and Reagan, 1981, via]
Thus Leahy's plan might be seen to tilt the Court and might certainly not "encourage" a more conservative Justice to recuse himself.
Apart from the political ramifications, such legislation would need to be constitutional. The Constitution, Article II section I provides:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Perhaps most interestingly, the Justices of the United States Supreme Court themselves would rule on the constitutionality of any statute providing for substitutes in cases of recusal, an issue on which the Justices would perhaps have grounds to recuse themselves.
August 9, 2010
Vladeck on Article III Trials for Alleged Terrorists
Professor Stephen Vladeck (American U., WCL) last week released an American Constitution Society Issue Brief, Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali, arguing that Article III courts can handle the trials of suspected terrorists, balancing the interests of prosecuting terrorists and protecting fundamental procedural rights.
Vladeck's unique contribution to this debate is his focus on the trial and appeal of Abu Ali, a U.S. citizen born in Texas but residing and studying in Saudi Arabia at the time of his arrest. Ali was subsequently detained and interrogated in Saudi Arabia and transferred to the United States for trial in Alexandria, Virginia.
Vladeck argues that Ali's case raised particularly interesting and unique issues, but that the Article III courts were flexible enough to deal with them:
In sum, then, Abu Ali emerges as an unvarnished example of how the civilian criminal justice system can handle high-profile criminal terrorism cases raising novel logistical challenges. The thoughtful procedure devised by Judge Lee to allow the [Saudi witnesses] to testify while protecting the defendant's Confrontation Clause rights are a model that courts should follow (and have followed). More generally, this innovative procedure demonstrates how technology and national security can actual help cabin proposed changes to the Federal Rules of Criminal Procedure. After all, if such innovation can exist within the present framework, what need is there for hasty changes to rules that have long served the interests of justice? The principled disagreement over whether Abu Ali's interrogation constituted a "joint venture" raises a fascinating question of constitutional criminal procedure that turns in no meaningful substantive way on the fact that his was a terrorism trial. And the clear Confrontation Clause violation resulting from the trial court's use of the "silent witness" rule shows both the settling effect of harmless error doctrine and the extent to which the flaws sometimes derive not from the laws, but from the judges who apply them.
India Debates Fundamental Right to Food
The governing Indian National Congress Party is split on a proposal to create a new constitutional right to food, the New York Times reports today.
The Indian Constitution includes several sweeping positive socio-economic rights, including one that imposes some obligation on the government related to food security. Section 47 reads:
The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties . . . .
But Section 47 is not judicially enforceable. It appears in a part of the Indian Constitution, Part IV, Directive Principles of State Policy, that, as the title suggests, delineates principles of government policy but provides no immediate or direct enforcement mechanism. (Section 37 says that the provisions contained in Part IV "shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.") Thus if a new "right to food" appears in Part IV, it likely will not add much to already existing rights.
Moreover, it appears that the latest proposed food security bill would cover only India's poorest districts, and not provide the right for others. The Hindu opines today that this partial coverage would violate "the letter and spirit" of Article 11 of the International Covenant on Economic, Social and Cultural Rights.
The NYT piece provides a nice overview of the significant economic challenges India faces in implementing a right to food. Two recent pieces, here and here, in the Times of India provide more details on the politics of the movement.
"Our Constitution works"
"My fellow Americans, our long national nightmare is over. Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule."
So said Gerald Ford, on assuming the office of President of the United States, thirty six years ago today. Full speech is here.
[image: Gerald Ford being sworn in by CJ Warren Burger, Betty Ford observing, 1974, via].
August 8, 2010
Dworkin on Kagan
[image: Constitutional Oath, August 7, 2010, via]
Reflecting on the criticisms of the confirmation process, Dworkin agrees that the process seemed "pointless," but also notes that there is an important argument supporting a nonsubstantive - - - or at least non-detailed - - - confirmation process:
It is crucial to the role Supreme Court justices play in our constitutional system that they be free and able to reject popular opinion—to overrule the wishes of the majority in order to protect individual rights. The individual rights that need protection are often unpopular; it would compromise that crucial role were the public able to defeat a nominee because he or she proposed to defend such rights. It seems doubtful, for instance, that anyone who declared a concern to protect due process rights of suspected terrorists, or to better protect the rights of women to choose abortion, or to recognize a constitutional right to gay marriage could be nominated now or, if he were, escape a filibuster or outright defeat. So if nominees were as candid as Kagan proposed in 1995, and senators approved only those with very popular opinions, Americans might lose their traditional protection against majority selfishness, intolerance, or prejudice.
Dworkin's conclusion, however, seems a bit problematical. He argues for a "structural change in the Judiciary Committee’s procedures" that would "appoint special majority and minority counsel, who might be academic specialists in constitutional law, to conduct a major part of the hearings, as other congressional committees do in other investigations." This may have some limitations given that the US Supreme Court is not a "Constitutional Court" limited to constitutional issues as in some other constitutional democracies, but also has important powers regarding the interpretation of federal statutes, regulations, and policies. However, Dworkin supports his suggestion with his view of the place of constitutional discourse in our democracy:
But confirmation hearings remain the best and perhaps only opportunity to make constitutional law a matter of public interest and concern. That is a grand goal—it would improve our democracy in many ways—and we should miss no opportunity to pursue it.
Is it true that constitutional law is lacking as a "matter of public interest and concern" these days?