November 13, 2010
DADT: The Supreme Court and the Status Quo
As expected, in a brief order on Friday the United States Supreme Court has refused to vacate the Ninth's Circuit's Stay of District Judge Virginia Phillips' injunction against enforcement of the military's "don't ask don't tell" (DADT) policy regarding "homosexuality" in the military on the grounds that it is unconstitutional.
Justice Kagan did not participate in the Supreme Court's deliberations.
Meanwhile, initial descriptions by WaPo regarding a soon-to-be released 370 page report by a Pentagon study group support a conclusion that eliminating DADT would not impede government interests: "More than 70 percent of respondents to a survey sent to active-duty and reserve troops over the summer said the effect of repealing the "don't ask, don't tell" policy would be positive, mixed or nonexistent."
[image "Navy Nurse" circa WWII via]
November 12, 2010
Senator Rockefeller, Health Care, and the West Virginia Law Review
The just-published issue of West Virginia Law Review is a Symposium on "Health Care in America" and is one of the first law review issues to substantively address the Patient Protection and Affordable Care Act.
The journal includes discussion of a few of the constitutional issues raised by the Act, including an article by Professor Dayna Bowen Matthew of University of Colorado that non-disparate health care should be conceptualized as a property interest and an article by Professor Eleanor D. Kinney of the Indiana University School of Law considering health care as an international human right. Additionally, Professor Sidney D. Watson of St. Louis University School of Law contributes an article focused on health care in rural communities.
The law review issue, the first in Volume 113, is dedicated to Senator John D. Rockefeller, IV, the senior senator from West Virginia and longtime advocate for health care reform. In a ceremony today, Senator Rockefeller addressed criticisms of the Affordable Care Act, including those who question the constitutionality of the individual mandate, a topic we've covered here, here, and here. Rockefeller reminded his audience that a federal court recently rejected such a challenge to the Act. Rockefeller had few positive words for the for-profit health insurance industry, discussing his support for the ultimately unsuccessful public option. Rockefeller suggested that the constitutionality of the Act - - - as well as its importance - - - does not rest on the Act itself but on its forthcoming implementation by the Department of Health and Human Services. Rockefeller urged the law students to actively engage with the constitutional issues as well as the specifics of the future of health care reform.
(with J. Zak Ritchie, WVU College of Law, Class of 2011)
D.C. Circuit Clarifies "Part Of" Test for Guantanamo Detention
The D.C. Circuit last week remanded a Guantanamo petitioner's habeas corpus case to the district court for a determination whether the petitioner was "part of" al Qaeda under the Circuit's refined standard for detention.
The case, Salahi v. Obama, tests the government's authority to detain Mohammedou Ould Salahi as "part of" al Qaeda based on his 1991 oath of allegiance to the organization, his association with its members, and his support for the organization. (The government has not criminally indicted Salahi for providing material support to al Qaeda, and it does not seek to detain him on the ground that he aided the 9/11 attacks or the ground that he supported al Qaeda in hostilities against the U.S. or its partners.) The district court granted the writ and ordered Salahi released.
The D.C. Circuit ruled that the district court applied the "part of" test without the benefit of the D.C. Circuit's more recent rulings in Al-Adahi v. Obama, Bensayah v. Obama, and Awad v. Obama. The D.C. Circuit ruled that those cases require a more flexible, case-by-case evaluation of a "part of" claim that looks at the evidence against a detainee in its totality. The D.C. Circuit thus rejected the district court's formalist approach that looks at evidence piece-by-piece, and only in isolation.
Here the D.C. Circuit ruled that the district court erred in finding that Salahi was not part of the command structure of al Qaeda, because there was no evidence that he received and executed orders from al Qaeda. The D.C. Circuit ruled that the "command structure" test was relevant to the "part of" test, but alone not dispositive of it. In short, the district court "did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact 'part of' al-Qaeda when captured."
The circuit court also ruled that the government did not shift the burden to Salahi to prove that he was not "part of" al Qaeda at the time of capture merely by showing that he swore an oath in 1991. The court pointed out that at the time of Salahi's oath, al Qaeda and the United States shared a common objective: to topple Afghanistan's Communist government. Bin Laden didn't directly turn on the United States until 1992, when he issued his first fatwa against U.S. forces. But Salahi declared that he severed ties to al Qaeda that same year. Moreover, over 10 years passed between Salahi's oath and his capture. The court ruled that Salahi's oath was relevant to determining whether he was "part of" al Qaeda, but under the circumstances it couldn't shift the burden to Salahi. (The court ruled that an oath might shift the burden under different circumstances, e.g., if the oath occurred closer to the time of capture.)
The court gave a sense of the kinds of questions it'd like answered under the broader "part of" approach:
[D]oes the government's evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al-Qaida operatives that he would refer prospective jihadists to the organization? Has the government presented sufficient evidence for the court to make findings regarding what Salahi said to bin al-Shibh during their "discussion of jihad and Afghanistan"? Did al-Qaida operatives ask Salahi to assist the organization with telecommunications projects in Sudan, Afghanistan, or Pakistan? Did Salahi provide any assistance to al-Qaida in planning denial-of-service computer attacks, even if those attacks never came to fruition? May the court infer from Salahi's numerous ties to known al-Qaida operatives that he remained a trusted member of the organization?
Op. at 14.
These questions instruct the government and lower court to press harder in putting the evidence together and drawing inferences that Salahi was "part of" al Qaeda. The ruling thus not only reaffirms the broader approach to the "part of" test in its most recent cases; it also puts that approach into sharper focus. Particularly, Salahi illustrates that this case-by-case, totality-of-circumstances approach can make the government's job much easier: The government can (and the courts must) put the disparate pieces of evidence together and draw inferences to create a larger picture of a detainee who was "part of" al Qaeda at the time of capture.
November 11, 2010
Cigarette Labeling and the First Amendment
The FDA this week unveiled its new proposed cigarette warning labels under the Family Smoking Prevention and Tobacco Control Act, signed on June 22, 2009. Here are a some sample approved warning labels, from the FDA web-site:
As you might imagine, manufacturers aren't happy. They vow to sue--again, as it turns out. Commonwealth Brands, Conwood, Discount Tobacco City, Lorillard, National Tobacco, and R.J. Reynolds sued last year challenging the Act's labeling requirements under the First Amendment, the Takings Clause, and the Due Process Clause. The District Court for the Western District of Kentucky issued a split decision; here are the highlights:
Ban on Color and Graphics Violates First Amendment. The Act requires tobacco labels and advertisements to be in black text on white background, with no graphics. (The idea is to deter children, who are more attracted to colorful labels with things like cartoon camels.) The court ruled that the ban swept too broadly: "Congress could have exempted large categories of innocuous images and color--e.g., images that teach adult consumers how to use novel tobacco products, images that merely identify products and producers, and colors that communicate information about the nature of a product . . . ." It thus violated the Central Hudson commercial speech test.
Ban on Event Sponsorship and Merchandise Do Not Violate First Amendment. The Act bans tobacco companies from sponsoring sporting, social, and cultural events in the name of a tobacco product in order to prevent positive association between these events and tobacco and marketing to youth. It also bans the use of tobacco product names on merchandise give-aways. The court defered to Congress in finding that sponsorship and merchandise advertisements can reach children, and therefore the bans were sufficiently tailored to withstand First Amendment scrutiny.
Authorization of Regulatory Power Not Unconstitutional Delegation. The Act permits state and local governments to enact more stringent standards. The court ruled that this was not an unconstitutional delegation of authority, because it wasn't a "delegation" or "authorization"; it simply did not preempt state efforts to regulate in this area.
Warning Labels Not Unconstitutional. The Act requires warning labels on the top 50% of the front and rear panels of packages with color graphics that depict the negative health consequences of smoking. (Examples above.) The court ruled that this requirement meets the Central Hudson standard--sufficiently tailored to advance the government's substantial interest.
Modified Risk Tobacco Products Labelling Not Unconstitutional. The Act prohibits labelling that suggests that a tobacco product is less harmful than other tobacco products. The court ruled that the requirement was not a viewpoint-based restriction on speech and was not unconstitutionally vague.
Ban on FDA Approval Claims Unconstitutional. The Act prohibits a statement that implies that the tobacco products are safer because they comply with FDA standards. The court ruled that this ban applies to more than mere commercial speech and that it failed strict scrutiny.
Ban on Outdoor Advertising Not Ripe. The Act bans outdoor advertising within 1,000 feet of a school or playground. The court ruled that this was not ripe, because the FDA hadn't yet issued its final regulations (which allowed the Secretary to modify the ban in light of "governing First Amendment case law").
Ban on Gifts Not Unconstitutional. The Act bans gifts that manufacturers sometimes give away with a purchase of their products. The court ruled that any impact on free speech was incidental and outside the scope of the First Amendment.
Takings: No Jurisdiction. The court ruled that it had no jurisdiction over the plaintiffs' claims that the Act violated the Takings Clause by depriving them of their "trademarks, trade dress, packaging, and advertising without just compensation." The court ruled that the plaintiffs must bring this claim under the Tucker Act in the Court of Federal Claims.
Alito and Ethics
"Is it legal for a Justice of the United States Supreme Court to attend political fundraisers?"
That's the query posed by Lee Fang, a reporter at Think Progress, to Justice Samuel Alito at the American Spectator fundraiser, which Alito reportedly "headlined" in 2008.
Fang at Think Progress describes The American Spectator as a "right wing magazine" that was behind the attempts to impeach Bill Clinton, that its publisher leads the “Conservative Action Project,” formed after President Obama’s election, to help lobby for conservative legislative priorities, elect Republicans and block President Obama’s judicial appointments. The keynote speaker at last evening's event was Rep. Michele Bachmann (R-MN); her remarks are here.
On the other hand, The American Spectator describes last evening's event thusly:
The Robert L. Bartley Gala Dinner is a "widely attended" event pursuant to Senate and House Ethics Rules. The American Spectator Foundation is a nonprofit, nonpartisan media organization responsible for publishing The American Spectator and its companion website www.spectator.org.
Fang reports that Alito dismissed Fang's question to Alito at the event:
As Alito entered the event last night, I approached the Justice and asked him why he thought it appropriate to attend a highly political fundraiser with the chairman of the Republican Party, given Alito’s position on the court. Alito appeared baffled, and replied, “it’s not important that I’m here.” “But,” I said, “you also helped headline this same event two years ago, obviously helping to raise political money as the keynote.” Alito replied curtly, “it’s not important,” before walking away from me.
Fang's attempt to video the Justice was unsuccessful.
Judicial ethics of federal judges are governed by the Code of Conduct for United States Judges.
The Code of Conduct is promulgated by the Judicial Conference if the United States, and the Chief Justice of the United States is the presiding officer of the Judicial Conference. However, by its terms, "This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code."
There does not seem to be any specific Code of Conduct for Supreme Court Justices. So, these provisions, while presumably worth considering because they apply to the federal judiciary, are not applicable to Supreme Court Justices.
Canon 4 provides:
A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.
The limitations include subsection (c):
Fund Raising. A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee. A judge may solicit funds for such an organization from judges over whom the judge does not exercise supervisory or appellate authority and from members of the judge’s family. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.
Perhaps the ethical consequences turn on the question of when an "event" becomes a "fund-raising activity" or a solicitation of funds.
Or given that this rule is not strictly applicable, perhaps the ethical consequences turn on even more ambiguous - - - and unwritten - - - standards.
[image: Alito being sworn in at United States Supreme Court Justice, 2006, via]
November 10, 2010
Federal Judge Issues TRO in Oklahoma's Anti-Sharia Case
Judge Vicki Miles-LaGrange of the Western District of Oklahoma yesterday issued her Temporary Restraining Order, enjoining the State from certifying the election results for State Question 755, the state ballot question that would amend the Oklahoma Constitution to ban state courts from considering Sharia law.
Judge Miles-LaGrange's order was expected. She issued a Minute Sheet to the same effect earlier this week.
The 9-page Order concludes that plaintiff Muneer Awad is likely to succeed on his Establishment Clause and Free Exercise Clause claims for reasons argued by Awad. As to the Establishment Clause, Judge Miles-LaGrange wrote that the ballot measure did not have a secular purpose, that its primary purpose inhibits religion, and that it fosters an excessive government entanglement with religion. As to the Free Exercise Clause:
[T]he Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is not facially neutral, discriminates against a specific religious belief, and prohibits conduct because it is undertaken for religious reasons. Additionally, the Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is neither justified by any compelling interest nor narrowly tailored.
Judge Miles-LaGrange also ruled that Awad had standing, and that the case was ripe for review. She ordered the TRO in effect until the scheduled hearing on the preliminary injunction, Monday, November 22.
Meanwhile, two Con Law Profs weighed in. Prof. Ali Khan (Washburn) takes a strong stand against the measure, arguing that it would affect everything from Muslim prisoners' rights to halal food to state court interpretation of international business contracts based on Sharia law to marriages under Sharia law. Prof. Marci Hamilton (Cardozo) argues that it may be a non-issue, because courts can't use religious law, anyway:
It may look anti-Muslim, but no other religious group has a right to have their religious doctrine determine secular law. On this reading, it is just a restatement of the rule of law.
November 10, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (0) | TrackBack
Flores-Villar Oral Argument Analysis: Father's Rights or Citizenship Rights? And What Remedy?
The United States Supreme Court heard oral argument today in Flores Villar v. United States. As we discussed in our previous analysis when certorari was granted, the statute at issue in Flores-Villar is the requirement that a citizen father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. Moreover, in the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.
In today's oral argument, the Court seemed preoccupied with two different inquiries.
First, the standard of review to be applied under Equal Protection doctrine, and second, the remedy if there were found to be an Equal Protection violation.
However, the argument did not proceed in this fashion. Instead, Steven F. Hubachek, arguing for Petitioner Flores-Villar, was peppered with questions about the remedy. As Justice Kennedy phrased it:
Let me just ask you this as an analytic matter, or as matter of logical priorities. We usually talk about substance first, remedy second. Do you think it's permissible, logically, for us to say that because the remedies here are so intrusive, that bears on our choice of whether we or not we use intermediate or rational basis scrutiny, and because the remedies are so difficult, we are going to use rational basis scrutiny? Is that a logical way to proceed?
The subject of the remedy was the major theme in the questions to Hubachek. As Roberts stated: "The remedy for an equal protection violation is to treat everybody the same. You can do that either by lowering the people who are given a benefit or by increasing the people who aren't." Ginsburg, a very active interlocutor in this argument as one might expect, initially asked about remedy, but later seemed to indicate her views, by referring to cases she herself had litigated:
In Sarah Frontiero's case, [Frontiero v. Richardson] we didn't say: You've been discriminated against; Congress, you fix it. We said: You get the quarters' allowance that up until now has been available only in male officers. And in Wiesenthal [sic: Weinberger v. Wiesenfeld] the father got the same child and care benefits as the mother. So the Court was making a decision for extension; it recognized it had to do that.
Arguing for the United States, Edwin S. Kneedler, Deputy Solicitor General, was vigorously questioned about the standard that should be applied. Justice Sotomayor posed a hypothetical:
assume Congress determines that there are too many foreign-born children of U.S. citizens coming into the United States, and that those foreign-born children, those born of women are placing a greater burden on our economic system. They need more care for reasons that Congress determines analytically or statistically. They are spending more money -- more government money. And Congress passes a rule that says, only the foreign-born children of men can come into the country, not of women. Wouldn't that be a rational basis?
In response to Kneedler's attempt to articulate a test, Sotomayor asked "Is that the rational basis plus test you are talking about?" Kneedler's attempted response, "You could call it that or you could call it a facially legitimate - - -," was dismissed by Sotomayor: "So now we're going to just continue sort of tweaking the definitions and creating more variations on our review standard?"
Discussions about a rational basis standard for gender discrimination rather than intermediate eventually led Breyer to comment:
This is suddenly [---] is cutting a big hole in the Fourteenth Amendment.
Kneedler also argued that if the claim was construed as being on behalf of the child rather than the child's father, then it was not a gender classification because the child's gender was not at issue.
While the bulk of questions to the Deputy Solicitor General did concentrate on the standard, he did not escape queries about the remedy. His answer was clear: the Court should strike the ability of mother's to obtain citizenship for their children after only one year, raising the standard for mothers to be like fathers: five years.
[image: Gabriel Decker, Father with his son, 1850, via]
How do you spell Bush v. Gore?: Miller sues over ballot interpretations of Murkowski's name in Alaska Senate race
In a Complaint filed late yesterday in the Alaska District Court, United States Senate Candidate Joe Miller is seeking to exclude write-in ballots for incumbent Senator Lisa Murkowski unless her name is spelled correctly. As background, there is good reporting from the Anchorage Daily News and a prediction of this lawsuit by Rick Hansen over at Election Law Blog.
Miller's Complaint states four claims for relief:
First, citing the Elections Clause, Article I section 4, cl 1, which provides that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," Miller argues that the state executive branch is usurping the power of the state legislative branch.
Second, relying on the Equal Protection Clause as interpreted in Bush v. Gore, Miller alleges that the state officials “quixotic quest” to determine the intent of the voter will result in the “arbitrary and disparate treatment of write-in ballots in clear violation of the U.S. Constitution.”
In counts three and four, Miller raises state law claims under the Alaska Election Code and the Alaska Administrative Procedure Act.
As in Bush v. Gore, the candidate who otherwise advocates "states rights" and disparages "federal activist judges" is asking a federal court to intervene and enjoin state officials from implementing their interpretation of state law.
Before the election, Miller filed a complaint with the FEC against Alaskans Standing Together, a PAC with Native Alaskan support that opposed his candicacy and supported Murkowski (as illustrated by the image above from its website). The PAC will undoubtedly be relying upon Citizens United v. FEC.
November 9, 2010
Two (more) challenges to DOMA
The complaint in Pedersen v. Office of Personnel Management is filed in the District of Connecticut on behalf of five same-sex couples and one survivor of a same-sex couple in Connecticut, New Hamshire and Vermont. The injuries include denials of federal employees and retirees benefits, Social Security benefits, survivor benefits under federal pension laws, and work leave to care for a spouse under the Family Medical Leave Act.
The complaint in Windsor v. United States is filed in the Southern District of New York on behalf of the survivor of a same-sex couple in New York who were married in Canada. Windor seeks a refund of estate taxes paid because the marriage was not recognized by the federal government.
Both complaints argue DOMA section 3 is a denial of equal protection. In Judge Tauro's decision in Gill v. Office of Personnel Management, he applied rational basis and found that the government interests - - - the interests used to support the original 1996 DOMA statute and the interest of maintaining the status quo used by the OBAMA DOJ to support the litigation - - - were problematic.
Two additional judges will be deciding whether or not they agree.
And, as the NYT reports, the Obama DOJ will have to decide whether to continue its support of DOMA despite some indications to the contrary.
November 8, 2010
Jim Morrison's Possibility of Pardon
The Hill is reporting that Florida Governor Charlie Crist is considering a posthumous pardon of Jim Morrison. Morrison, the famous lead singer of The Doors (and Florida native), was convicted in Miami in 1970 of indecent exposure and profanity, although he was acquitted of the felony of lewd and lascivious conduct and of public intoxication. Morrison's lawyers raised First Amendment defenses to the prosecution which was based on a March 1969 performance in Coconut Grove. The quest to have Morrison pardoned has been ongoing with some interesting discussions of the concert and the case available at links here.
In the video below, Morrison is being interviewed and claiming "artistic freedom." His discussion of nudity not only relates to his own supposed exposure, but presumably relates to the fact that the musical HAIR had also been shown nearby. The then-controversial musical HAIR was the subject of the 1975 Supreme Court case Southeastern Promotions, Ltd. v. Conrad.
Federal Court Blocks Oklahoma's Anti-Sharia Con Amendment
Judge Vicki Miles-LaGrange of the Western District of Oklahoma today issued a temporary restraining order preventing the State of Oklahoma from implementing its new constitutional amendment that would ban the use of Sharia law in Oklahoma courts. The court released a Minute Sheet without significant analysis; Judge Miles-LaGrange indicated that she'd release an Order soon.
We posted on the case, brought by Muneer Awad, ED for the advocacy group the Council on American-Islamic Relations, here.
The constitutional amendment, passed by a 70%-30% vote in last Tuesday's election, would prohibit Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law."
The Minute Sheet also concludes that Awad has standing. He claims that the amendment would stigmatize him as a Muslim and prevent him from enforcing his will, which references Sharia law, in Oklahoma state courts.
November 8, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (0) | TrackBack
Michigan Assistant AG Terminated: First Amendment Issue?
Recall the Michigan Assistant AG who claimed he was engaging in political speech in a campaign against the gay university student body president?
The state AG, Mike Cox, terminated him today. According to reporter David Jesse at annarbor.com:
Cox said Shirvell was fired for "conduct unbecoming a state employee, especially that of an assistant attorney general."
"To be clear, I refuse to fire anyone for exercising their First Amendment rights, regardless of how popular or unpopular their positions might be," Cox said in the statement. "However, Mr. Shirvell repeatedly violated office policies, engaged in borderline stalking behavior, and inappropriately used state resources, our investigation showed.
Cox's investigation into Shirvell showed he:
- Showed up at Armstrong's home three separate times, including once at 1:30 a.m. "That incident is especially telling because it clearly was about harassing Mr. Armstrong, not engaging in free speech," the statement said.
- "Engaged in behavior that, while not perhaps sufficient to charge criminal stalking, was harassing, uninvited and showed a pattern that was in the everyday sense, stalking."
- Harassed Armstrong's friends as they were socializing in Ann Arbor.Called Speaker Nancy Pelosi's office, Armstrong's employer, in an attempt to "slander Armstrong and ultimately attempting to cause Pelosi to fire Armstrong.
- Attempted to "out" Armstrong's friends as homosexual — several of whom aren't gay.
Although Shervill successfully appealed his ban from the UM campus, he may be facing ethics complaints before the Michigan Attorney Grievance Commission.
November 7, 2010
Nebraska Supreme Court Refuses Certified Question from Federal Court in Fremont Immigration Ordinance Challenge
The Fremont Ordinance, passed by ballot initiative in June, provides that all persons renting or leasing dwelling units obtain an “occupancy license” from the city. The fee is $5.00, and requires “citizens or nationals” to sign a declaration so stating, and "in cases in which the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the alien does not know of any such number, he shall so declare. Such a declaration shall be sufficient to satisfy this requirement." The Ordinance also requires that “Every business entity employing one or more employees and performing work within the City shall register in the [federal] E-Verify Program within 60 days after the effective date of this Ordinance, and shall use the E-Verify Program to verify the authorization of employment in the United States of each employee hired after such registration."
The federal district court certified the following question:
May a Nebraska city of the first class, that is not a “home rule” city under Article XI of the Nebraska Constitution and has not passed a home rule charter, promulgate an ordinance placing conditions on persons’ eligibility to occupy dwellings, landlords’ ability to rent dwellings, or business owners’ authority to hire and employ workers, consistent with Chapters 16, 18, and 19 of the Revised Statutes of Nebraska?
The Nebraska Supreme Court found the certified question too general. It noted that under the relevant Nebraska statute allowing for certified questions, in addition to the question of law to be answered, there must be "a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose." Yet the court quickly acknowledged that it was fully aware of the controversial ordinance and the factual basis for the question. The real problem, the court reasoned, is that the certified question of state law would not be determinative of the pending federal case:
Obviously, even if this court held that the ordinance did not violate a state statute or the state Constitution, that holding would not be determinative of a federal constitutional challenge to the ordinance. And the request does not ask us to consider whether any authorizing statute raised by the complaint is subject to a construction that would limit the statute’s or ordinance’s reach and thus resolve the pending federal challenge. Nor does it ask us to decide whether the ordinance violated any specific statute. Thus, we assume that the plaintiffs have alleged that the ordinance offends state and federal constitutional protections or conflicts with federal immigration law, rather than violating specific state statutes.
Any state constitutional claims, the Nebraska Supreme Court states, are co-extensive with federal ones, and the "most common constitutional challenges to these types of ordinances have been due process, equal protection, and federal preemption challenges."
The Nebraska Supreme Court seems to ignore the clear language of the certified question, which posed a query about the authority of a city under the state constitution that was not a "home rule" city, which would presumably have greater powers to legislate than a non- "home rule city."
Perhaps the federal district court was considering a state constitutional powers issue as a way to avoid deciding the "most common constitutional challenges." If so, the Nebraska Supreme Court is not providing any assistance.
Federalist Society National Lawyers Convention
The event is November 18- 20 in Washington, D.C.
Speakers include Senator from Kentucky Mitch McConnell, John Yoo, ConLaw Prof Randy Barnett, James Bopp, and Attorney General of Virginia Kenneth Cuccinelli. The Annual Dinner on Thursday evening will feature an interview of Justice Antonin Scalia, with Jan Crawford of CBS News, and the Friday evening lecture is by Judge Dennis Jacobs (pictured right) of the Second Circuit Court of Appeals.
More information and registration here.