October 1, 2010
Justice Kagan's Investiture Ceremony and OT 2010 Previews
During this special sitting of the Supreme Court, Justice Kagan took the Judicial Oath of Office for a second time. Before the ceremony, the Justices along with President Obama gathered in the Justices' Conference Room. Following the Courtroom ceremony, Chief Justice Roberts escorted Justice Kagan down the front steps of the building for a brief photo opportunity with the press.
On August 7, 2010, Elena Kagan was sworn in as the 100th Associate Justice in a private ceremony at the Supreme Court so she could begin to participate in the work of the Court.
September 30, 2010
Kosovo Con Court Rules Against President
The Constitutional Court of the Republic of Kosovo ruled last week in Naim Rrustemi and 31 Other Deputies of the Assembly of the Republic of Kosovo v. His Excellency Fatmir Sejdiu that President Fatmir Sejdiu committed a "serious violation" of the Constitution of Kosovo for simultaneously serving as President of the Republic and President of the Democratic League of Kosovo (LDK), a political party. Sejdiu promptly resigned as President of Kosovo.
Article 88 of the Kovoso Constitution, titled "Incompatibility," reads as follows:
1. The President shall not exercise any other public function.
2. After election, the President cannot exercise any political party functions.
Thirty-two deputies of the Assembly of Kosovo lodged a referral with the Constitutional Court claiming that Sejdiu violated Article 88(2) because he continued to serve as President of the LDK. (Article 113 of the Constitution authorizes 30 or more deputies to bring such a question to the court.) Sejdiu argued that his position as President of the LDK was in name only--that while he held the title, he didn't exercise the power. (In Sejdiu's words, he "froze" his party functions.)
The Constitutional Court didn't buy it. The court ruled that Sejdiu and the party sought to benefit each other from their association, violating both the letter and the spirit of Article 88(2). The court:
68. In reality, both the President and the LDK wish to benefit from their association with each other. The President may be able to "unfreeze" his exercising of the functions if and when he leaves the office of the President of Kosovo. The party may seek political advancement by being associated with a powerful constitutional officer, the President of the Republic of Kosovo. The symbiotic relationship remains between the President and his party to this day. They thus "make use of" each other by permitting this public association to continue. This "making use of" is one of the definitions for "exercise" that the President offers in his response.
The court further ruled that the violation was "serious"--a ruling that under Article 91 allows the Assembly to dismiss the President by a 2/3 vote of all deputies. Why "serious"? Because of the impact on public confidence in Sejdiu and the President's constitutional duty to represent all the people (and not just a faction):
69. In considering whether this violation is merely a technical violation of the Constitution or rather a serious violation the Court should assess the impact of the President's decision on the confidence of the public in the office of President of the Republic of Kosovo. Bearing in mind the considerable powers granted to the President under the Constitution it is reasonable for the public to assume that their President, "representing the unity of all people" and not a sectional or party political interest, will represent them all. Every citizen of the Republic is entitled to be assured of the impartiality, integrit and independence of their President. This is particularly so when he exercises political choices such as choosing competing candidates from possible coalitions to become Prime Minister.
Sejdiu's resignation obviously preempts any Assembly attempt to oust him under Article 91. It may also throw a wrench into Kosovo's negotiations with Serbia. Kosovo declared its independence from Serbia in 2008, but Serbia has not recognized it as an independent country. Early this year the International Court of Justice ruled that Kosovo's declaration of independence was not illegal under international law. Serbia recently signalled that it was open to negotiations over practical issues in the relationship between the two.
Retired Supreme Court Justices to "Unretire"? Leahy Bill to Allow Justices to Sit by Designation
As we previously discussed, the suggestion to "bring back" Supreme Court Justices who have retired - - - that would be O'Connor, Souter, and Stevens - - - seems a solution to the problem of Supreme Court Justice recusals. The recusal issue is especially pronounced this term because the newest Justice comes to the bench after having been Solictor General.
Senator Patrick Leahy has introduced a Bill which would allow such a process. The Bill provides:
(2) Any retired Chief Justice of the United States or any retired Associate Justice of the Supreme Court may be designated and assigned to serve as a justice on the Supreme Court of the United States in a particular case if—
(A) any active justice is recused from that case; and
(B) a majority of active justices vote to designate and assign that retired Chief Justice or Associate Justice.’
Leahy notes that the process was suggested by then-Justice Stevens. Currently, "Congress has previously given the Chief Justice of the Supreme Court the authority to designate and assign retired Supreme Court justices to cases in any federal circuit," as demonstrated by a recent case in which former Justice Souter wrote an opinion in the First Circuit. But, as Leahy states, "the law does not provide any authority permitting a former justice to sit by designation on the Supreme Court – the court to which he or she was confirmed."
In addition to the pragmatic and political issues, the process may pose some constitutional issues as we discussed here.
September 29, 2010
Court to Consider a More Ordinary State Secrets Privilege
The Supreme Court yesterday agreed to hear a government contractor's case against the Defense Department involving the Department's invocation of the state secrets privilege. But the case doesn't involve anything nearly so dramatic as what we've seen recently come out of the Ninth Circuit in Mohamed v. Jeppesen (ordering the dismissal of a private lawsuit by an alleged victim of extraordinary rendition and torture based upon the government's intervention and assertion of the state secrets privilege). Instead, this case is a more ordinary application of the privilege--an application more consistent with its common law, evidentiary roots.
But that doesn't make the case any less important. And the Court's treatment of the privilege in this more ordinary context may give us important clues as to how the Court might treat the more dramatic cases.
This case, General Dynamics Corp. v. U.S. (and a consolidated companion, The Boeing Co. v. U.S.) is a nearly 20-year-old dispute over the plaintiffs' ill-fated contract with the Navy to develop the A-12 Avenger, a carrier-based stealth aircraft. The plaintiffs-appellants claim that the Navy declined to share its stealth technology with the contractors in the design process, instead requiring the contractors to reinvent this wheel. This, among many other problems, led to substantial delays in the development of the aircraft. Finally the Navy terminated the contract for default.
Under federal contracting regulations, a termination for default means that the contractor gets no more payments under the contract and may have to reimburse the government for some payments already issued. A termination for default can also mean that the contractor is debarred from public contracting, or is prejudiced in the award of new contracts. (The government could have alternatively terminated for convenience. When it does this, the contractor still gets reimbursement for costs reasonably incurred.)
The contractors sued, arguing that the government failed to meet its burden in terminating for default because the government had "superior knowledge" (i.e., the stealth technology), but refused to share it with the contractors. The government asserted the state secrets privilege, arguing that it couldn't litigate the "superior knowledge" claim because the stealth technology is a state secret. The lower courts ruled in favor of the government.
The case now goes before the Court on the state secrets issue and a couple other issues related to the standard that applies to termination for default.
The contractors argue that the government cannot at once press its default claim (on which it bears the burden) but also deny the contractors information on their "superior knowledge" defense. The contractors point to language in United States v. Reynolds that supports this common-sensical argument--you can't fairly prosecute when you also deny the accused evidence necessary for the defense. And given the amount of money at stake and the possibly punitive nature of termination for default, this is like a prosecution.
The government argues that this principle doesn't apply here: after all, the government is the defendant; it isn't prosecuting anything. Moreover, it's the plaintiffs who bear the burden on the "superior knowledge" defense.
The case thus involves an evidentiary state secrets privilege in the old-fashioned sense--a privilege that applies (or not) to individual pieces of evidence, and not to entire cases, even purely private cases, as we've seen in the lower courts more recently. But the Court could nevertheless use the case to signal its direction with the cases, like Mohamed, that involve the government's far more sweeping assertions of the privilege, and therefore it's one to watch.
First Amendment Protects Michigan Assistant AG's "Political Campaign" Against University Student President?
UPDATE: The Michigan Assistant AG has been terminated.
UPDATE: The Michigan Assistant AG has apparently taken a "leave of absence."
The CNN report by Anderson Cooper is worth watching:
The blog "Chris Armstrong Watch," by the Assistant AG is entirely devoted to Chris Armstrong, the student body president. The Michigan student newspaper has quoted the statement of Michigan AG Mike Cox:
“All state employees have a right to free speech outside working hours,” Cox said in a statement yesterday, according to the Free Press. “But Mr. Shirvell’s immaturity and lack of judgment outside the office are clear.”
RR (h/t Steve Sanders)
September 28, 2010
New Civil Gideon Resource
The Philadelphia Bar Association recently launched its Civil Gideon Corner, an on-line resource page for all things Civil Gideon (including activities of the Bar Association's Civil Gideon Task Force).
According to the site,
The term "civil Gideon" refers to a growing national movement that has developed to explore strategies to provide legal counsel, as a matter of right and at public expense, to low-income persons in civil legal proceedings where basic human needs are at stake, such as those involving shelter and child custody.
The new site complements the site for the National Coalition for a Civil Right to Counsel.
Regulatory Takings Conference at UC-Berkeley
Is the "takings revolution" over? This conference "explores the regulatory takings issue as it relates to land use and environmental regulation" and "brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues raised by recent and pending court cases and new regulatory initiatives."
"Some topics to be discussed include the Supreme Court's recent Stop the Beach Renourishment decision, the future of the "judicial takings" theory, takings questions raised by sea level rise and other consequences of climate change, controversial new decisions applying an expansive interpretation of the Penn Central analysis, and recent takings cases involving water and endangered species laws."
Can the NJ Chief Justice Fill a Vacancy on the State Supreme Court?
New Jersey Supreme Court Chief Justice Stuart Rabner earlier this month assigned Judge Edwin H. Stern, head of the state Superior Court Appellate Division, to temporarily fill a vacant seat on the state high court. The temporary assignment comes in the wake of Republican Governor Chris Christie's refusal to reappoint Supreme Court Justice John E. Wallce and to nominate Anne Patterson to replace him. Democrats in the legislature have refused to schedule a confrimation hearing for Patterson, thus leaving the vacancy.
To scholars and students of the federal Constitution, Chief Justice Rabner's move may seem surprising. After all, can we imagine Chief Justice Roberts appointing a replacement for Justice Kagan in those cases in which she will recuse herself this term? Temporary assignments by designation are routine in the federal circuit courts, but an assignment by the Chief to the Supreme Court itself, even if only temporary, would raise Appointments Clause and separation-of-powers problems.
Not (necessarily) so under the New Jersey state constitution. The state constitution of 1947 contains its own appointments Clause, vesting appointment of state supreme court justices in the governor, with advice and consent of the state sentate. But it goes on:
The Supreme Court shall consist of a Chief Justice and six Associate Justices. Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service, as provided by rules of the Supreme Court, to serve temporarily in the Supreme Court.
New Jersey Constitution, Article VI, section 2, paragraph 1.
Justice Wallace's departure does not create a quorum problem, so the question is: Does this provision empower (or require) Chief Rabner to assign Judge Stern to the court?
Earl Maltz, Distinguished Prof at Rutgers Camden, argues in this Federalist Society briefing paper that it does not. Maltz traces the text, history, purpose, and practices of the provision and concludes that "[w]hen necessary" means when the court lacks a quorum. According to Maltz, because the vacancy creates no quorum problem, Chief Rabner lacks authority here.
September 27, 2010
Washington High Court Upholds State Internet Gambling Ban
The Washington Supreme Court last week unanimously upheld the state's ban on internet gambling against a Dormant Commerce Clause challenging, ruling that the ban was not "clearly excessive" in relation to legitimate state interests.
The case, Rousso v. State of Washington, involved a Washington statute that criminalizes "the knowing transmission and reception of gambling information by various means, including use of the Internet." The plaintiff, a Washington would-be gambler, claimed that the statute discriminated against out-of-staters in its effects and that Washington could have achieved its objectives by merely regulating, not completely banning, internet gambling.
The high court disagreed. In an opinion chock full of deference to the legislature and liberally laced with separation-of-powers and institutional competence concerns, the court ruled that the ban did not discriminate against out-of-staters, either on its face or in effect. It thus applied the familiar test that an evenhanded law does not violate the Commerce Clause if (1) there is a legitimate state purpose and (2) the burden imposed on interstate commerce is not "clearly excessive" in relation to the law's benefit.
Here, the state was concerned about gambling addiction, underage gambling, money laundering, and organized crime--clearly legitimate state purposes. The court ruled that the ban was not "clearly excessive" because any lesser action--regulation of internet gambling, e.g.--would be unduly burdensome and would not similarly achieve the benefits of the ban. Even though the state regulates, not bans, "brick and mortar gambling operations," similar state regulation of internet gambling "would be an interstate-commerce burdening nightmare."
The court found Minnesota v. Clover Leaf Creamery Co. instructive:
There the Minnesota legislature banned the retail sale of milk in plastic nonreturnable, nonrefillable containers because they presented a solid waste management problem, caused energy waste, and depleted natural resources. Other nonreturnable, nonrefillable containers, such as ones made from paperboard, raised similar concerns but were not banned. . . .
Even though plastic and paperboard nonreturnable, nonrefillable containers caused the same ultimate ills, the Supreme Court . . . held the ban on plastic containers, which still permitted paperboard containers, was consistent with the dormant commerce clause.
Similarly, here "both brick and mortar gambling and Internet gambling pose many of the same threats to citizens' health, welfare, safety, and morals, yet only the latter is banned."
Updating the ECPA (Electronic Communications Privacy Act)
The constitutional protection of "privacy" in the internet age is a subject of ongoing debate. As the NYT reports, Congress is considering "sweeping new regulations for the Internet," to include email, "Facebook" and "Skype" messaging.
Such revisions will, of course, be subject to challenge under the First and Fourth Amendments. Jim Dempsey, of the Center for Democracy and Technology, testified before the Judiciary Committee and stressed the Fourth Amendment aspects of privacy, as well as highlighting the disarray of the current state of the law.
Dempsey's appendix to his written testimony, discussing the current state of the law regarding protection for an email, demonstrates the doctrinal disorder:
ECPA, as interpreted by the Justice Department and the courts, provides a patchwork quilt of standards for governmental access to email. Under ECPA today, the status of a single email changes dramatically depending on where it is stored, how old it is, and even the district within which the government issues or serves its process.
Standards for access to the content of an email:
• Draft email stored on desktop computer – As an email is being drafted on a personʼs computer, that email is fully protected by the Fourth Amendment: the government must obtain a search warrant from a judge in order to seize the computer and the email.
• Draft email stored on gMail – However, if the person drafting the email uses a “cloud” service such as Googleʼs gMail, and stores a copy of the draft email with Google, intending to finish it and send it later, ECPA says that Google can be compelled to disclose the email with a mere subpoena. 18 U.S.C. 2703(b).
• Content of email in transit – After the person writing the email hits “send,” the email is again protected by the full warrant standard as it passes over the Internet. Most scholars and practitioners assume that the Fourth Amendment applies, but in any case the Wiretap Act requires a warrant to intercept an email in transit.
• Content of email in storage with service provider 180 days or less – Once the email reaches the inbox of the intended recipient, it falls out of the Wiretap Act and into the portion of ECPA known as the Stored Communications Act, 18 U.S.C. 2703(a). At least so long as the email is unopened, the service provider can be forced to disclose it to the government only with a warrant.
• Content of opened email in storage with service provider 180 days or less – The Justice Department argues that an email, once opened by the intended recipient, immediately loses the warrant protection and can be obtained from the service provider with a mere subpoena. (Under the same theory, the sender of an email immediately loses the warrant protection for all sent email stored with the senderʼs service provider.) The Ninth Circuit has rejected this argument. The question remains unsettled in the rest of the country. The Justice Department recently sought opened email in Colorado without a warrant; when the service provider resisted, the government withdrew its request, which means in effect that outside of the Ninth Circuit there may be one standard for service providers who comply with subpoenas and one for service providers who insist on a warrant.
• Content of email in storage with service provider more than 180 days – ECPA specifies that all email after 180 days loses the warrant protection and is available with a mere subpoena, issued without judicial approval.
Dempsey, written testimony at 15.
ConLawProfs looking for a provocative class discussion or exercise could attempt to elucidate the constitutional theory underpinnings of the current state of email protection, or make arguments regarding the government's attempts to include "Facebook" or "Skype," or the application to the military's "Don't Ask, Don't Tell" policy as construed by a judge who considered the military's use of private emails in her conclusion that the policy is unconstitutional.
September 27, 2010 in Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Fundamental Rights, News, Privacy, Speech, Teaching Tips, Theory, Web/Tech | Permalink | Comments (0) | TrackBack
September 26, 2010
Government Moves to Dismiss Targeted Killing Case
The government on Friday filed its legal arguments in support of its motion to dismiss Nasser Al-Aulaqi's case against it for allegedly designating his son Anwar Al-Aulaqi, a U.S. citizen living in Yemen and allegedly supporting al Qaeda in the Arabian Peninsula, for targeted killing. Thanks to Rachel Mabbott for the heads-up.
The government proffers three principal arguments, each of which reveals a little more about the legal authority it claims for targeted killings in the first place. Thus, the government argues that Nasser Al-Aulaqi, as Anwar's next-of-friend, lacks standing. The government argues that Nasser failed to show the imminence of harm necessary to support standing (because, after all, the whole program is secret--see below) and that Anwar could access the courts by turning himself over to U.S. authorities.
Next, the government argues that the case is barred by the political question doctrine. The government argues that judicial action in the case would intrude upon the foreign affairs and national security powers of the President in violation of separation-of-powers principles. In short, the courts are not well suited to evaluate this kind of claim. Moreover, the government argues that it has clear authority to engage in targeted killing (without admitting that it has targeted Al-Aulaqi) under the AUMF and international law.
Finally, the government argues that its assertion of the state secrets privilege requires complete dismissal. Emboldened by the recent Ninth Circuit decision in Mohamed v. Jeppesen, the government argues that the case should be dismissed on the pleadings based on its assertion of the privilege and the court's ex parte and in camera review of it own affidavits supporting the assertion. The government goes one step farther than the Ninth Circuit's ruling in Mohamed, however, and argues that the privilege is rooted in constitutional principles (citing the Fourth Circuit's decision in El-Masri)--a dangerous argument not supported by Mohamed (or any other authority except El-Masri, for that matter) and taking the courts out of the equation entirely (as I argue in detail here). While the government is careful to argue the privilege as a last resort--and with all the procedural protections built in by the Holder Justice Department--its claim here is still breathtaking and means that the government could order the targeted killing of a U.S. citizen on its own say-so, with no judicial oversight. The government gives a glimpse of the kind of information it seeks to protect here:
Resolution of the plaintiff's claim therefore would require the Court to answer a range of questions, even apart from the question of whether the plaintiff's son has been targeted: What kind of threat, if any, does plaintiff's son pose? If there is a threat, how imminent is it, and how continuing is it? How many innocent people are threatened by the danger plaintiff's son might pose? In the totality of the circumstances does the United States have the capability and access to capture plaintiff's son safely? In trying to capture him, how many innocent people or military personnel would likely be killed or injured in the process? It is self-evident that all the above questions (and more) directly implicate information protected by the military and state secrets privilege, at a minimum because those facts would require the examination of any available and pertinent classified intelligence that might exist on the subject, as well as the sources or methods for gathering that intelligence, and any related information concerning foreign relations and diplomatic communications.
. . .
Finally, plaintiff also raises a claim under the Fifth Amendment that expressly seeks disclosure of alleged secret criteria governing the targeting of U.S. citizens engaged in terrorist activities with lethal force. Such a disclosure would reveal not only whether such targeting has occurred or been considered in any given case but would disclose to the plaintiff and any potential target the criteria utilized by the Government to make this determination. It strains credulity to argue that the Due Process Clause requires the Government to disclose to Answer al-Aulaqi, an operational leader of the [al Qaeda in the Arabian Peninsula], whatever criteria it may be applying to respond to his activities.
Thus the government follows the Ninth Circuit's lead in invoking the privilege quite carefully, with protections (or saying that it's invoking the privilege carefully with protections), but in the end its sweep is every bit as broad as the more cavalier invocations by the prior administration and the Fourth Circuit in El-Masri.
September 26, 2010 in Executive Authority, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack
Miranda and Television: Anthony Franze, Justice Sotomayor, and the Roberts Court
Miranda warnings are a staple of "TV cop shows," and have become so ubiquitous that persons arrested in Canada, Australia, the U.K., and presumably other nations, reportedly protest when they do not receive their "Miranda warnings." The warnings are, of course, derived from the United States Supreme Court case of Miranda v. Arizona, decided in 1966. But are the protections about to be relegated to television, as one attorney has suggested, or perhaps to the bygone "television era"?
In an article just published in Harvard Law and Policy Review Online, Anthony Franze makes a compelling argument that Sotomayor's comment is incorrect, and indeed quotes Sotomayor's dissenting opinion in support of his position:
To borrow from Justice Sotomayor’s Berghuis dissent, the new rules “turn Miranda upside down,” reflect “a substantial retreat from the protections against compelled self-incrimination,” “ignore the important interests Miranda safeguards,” and “bode poorly for the fundamental principles that Miranda protects.”
Franze considers Berghuis, as well as Florida v. Powell and Maryland v. Shatzer, and concludes that these cases reaffirm that the Court will not overrule Miranda in a single, headline-grabbing decision. Rather, the case has been condemned to a death by a thousand cuts." As for the future, Franze sees Sotomayor as the Justice "who may turn out to be the most forceful, if unexpected, advocate for Miranda in Stevens’s absence," because although she joined the majorities in Powell and Shatzer," giving "early signals were that her years as a prosecutor and judge may have left her no friend of Miranda," it is " those practical experiences that may, as in her vigorous dissent in Berghuis, render her loath to place further limits on Miranda."
As for the newest Justice, Franze discusses Kagan's record, but notes that her views as Solicitor General do not necessarily predict her views as Supreme Court Justice.
There has certainly been much discussion about last term's Miranda cases, including an excellent article by Professor Kit Kinports, available on ssrn here, and commentary by our colleagues over at CrimProfBlog.
Franze's article adds to the literature, certainly, but it also serves as a great overview for ConLawProfs who may have not fully engaged with constitutional criminal procedure developments last term.