December 9, 2010
Redistricting, in Plain English
Justin Levitt and Erika Wood of the Brennan Center recently released A Citizen's Guide to Redistricting, a plain-spoken, but quite thorough, examination of political, policy, and constitutional issues related to legislative redistricting--just in time for the spate of activity next year.
According to Wood's Foreword, "[t]he Guide will provide engaged citizens with the knowledge and tools that they need to get involved with this round of redistricting, and to work towards continuing reform to open up the redistricting process in decades to come." It's also a terrific introduction for law students studying voting rights.
Jim Morrison Pardoned
As the New York Times reports Florida's clemency board has unamiously voted to pardon Jim Morrison posthumously. Our discussion last month of the possibility of pardon for the indecent exposure and profanity trial and possible First Amendment problems is here.
The NYT includes Governor Crist's statement, in which he states:
During the trial, some witnesses testified they saw the alleged acts for which he [Jim Morrison] was charged; however, many others testified they observed the entire concert and never saw them. In fact, so many witnesses corroborated Mr. Morrison’s testimony that the judge eventually stopped the defense from presenting any more – because their collective testimony became, what is known in legal terms as, “cumulative testimony.”
Mr. Morrison appealed his judgment and sentence; however, he died before the appeal was heard. His death prevented him from exercising his right to a direct appeal, a right given to every American by the United States Constitution. If his appeal had been heard, a reviewing court could have resolved the controversies surrounding his conviction.
December 8, 2010
IMAGINE: A Quick ConLaw Quiz on the 30th Anniversary of John Lennon's Murder
Closed book: no use of notes, databases, internet or other sources.
Q: Name that footnote (Name of case and author of footnote)
The lyrics are as follows:
“Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today ...
“Imagine there's no countries
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will be as one
“Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world ...
“You may say I'm a dreamer
But I'm not the only one I hope someday you'll join us
And the world will live as one.”
J. Lennon, Imagine, on Imagine (Apple Records 1971).
A: See comments.
Chamber of Commerce v. Whiting Oral Argument Analysis: An Arizona Immigration Statute Before the Supreme Court
The Court heard oral argument this morning in Chamber of Commerce v. Whiting, a constitutional challenge on Supremacy Clause/preemption grounds to the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens." The law was signed by then-governor of Arizona Janet Napolitano, who is now Secretary of Homeland Security and tasked with enforcing federal immigration law, an "irony" noted by Nina Totenberg of NPR.
The Court granted certiorari in late June to review a Ninth Circuit opinion upholding the constitutionality of the Arizona statute. [The case was formerly known as Chamber of Commerce v. Candelaria]. While the statute at issue is not the notorious Arizona SB1070, the attention that SB1070 has garnered is not irrelevant and may have contributed to the Court's grant of certiorari.
Justice Kagan has recused herself and did not participate in today's argument. As Solicitor General, she filed a brief on the petition for writ of certiorari; the Solicitor General's brief advocated that the writ be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by 8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” That is precisely the issue before the Court. Acting Solictor General Neal Katyal argued on behalf of the United States, supporting the Chamber of Commerce.
Arguing for the Chamber of Commerce Carter Phillips quickly articulated the notion that the Arizona statute provides for a “death penalty to the business” in that it might completely “eliminate the business's right to exist.” This "right to exist" occurs because Arizona's statute relies upon a provision in the 1986 federal statute, the Immigration Reform and Control Act (“IRCA”), regarding state authority to impose sanctions through licensing and similar laws.
"Licensing" turns out to be an ambiguous term, although in today's oral argument Kennedy admits he initially thought, "Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something," a sentiment echoed throughout the arguments. Roberts and Alito seemed more certain than Kennedy that "licensing" was a clear and rather broad term that granted the state wide latitude.
Sotomayor, however, had a different point: "how they define "license" or not is irrelevant to me." She asked Carter Phillips to explain the preemption of the state's ability to adjudicate, which for her is the central question.
In her argument, Mary O'Grady, Solicitor General of Arizona, emphasized the ability of the state to make determinations under the "savings clause" regarding licenses. However, at one point, Scalia seemed to believe her argument was too narrow:
JUSTICE SCALIA: Excuse me. Are you conceding that any variation from the Federal standards for -- for criminal and civil liability is automatically precluded?
I mean, as I read the exception, it's an exception for State licensing and similar laws. And it doesn't say, "So long as those licensing and similar laws go no further than what the Federal government has done." I mean, we often allow States to impose regulatory requirements that go beyond the regulatory requirements that the Federal government has imposed, and that is not automatically considered to be preempted. So why -- why are you conceding that Arizona cannot go a whit beyond what the Federal government says?
MS. O'GRADY: Because I think what Congress preserved for us was our ability to impose sanctions, including the suspension and revocation of State laws. But I do think they established a uniform national standard. I don't think we could, for example, establish a strict liability offense in Arizona. We would have to have a scienter requirement as they have in Federal law.
Breyer expressed concern that the state law essentially encouraged discrimination in conflict with the federal statute:
JUSTICE BREYER: Congress has passed a statute that gives the employer just as much incentive to verify, so there is no discrimination, as to dismiss, so there is no illegal hiring. It's absolutely balanced. A $1,000 fine for the one, a $1,000 fine for the other.
So Arizona comes along and says: I'll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead. That's just one thing they do. Now, how can you reconcile that intent to prevent discrimination against people because of their appearance or accent -- how do you reconcile that with Arizona's law?
If Kennedy is the deciding Justice, two of his comments to O'Grady arguing on behalf of Arizona may be indicative that the Court will conclude that the state statute is preempted:
JUSTICE KENNEDY: But you are taking the mechanism [E-VERIFY] that Congress said will be a pilot program that is optional and you are making it mandatory. It seems to me that's almost a classic example of a State doing something that is inconsistent with a Federal requirement.
JUSTICE KENNEDY: Just so you know, I interpret your answer as confirming the implication of Justice Breyer's questions that there is a very substantial difference in Federal and State law on this point. I mean, you told about -- you know what lawsuits are about. If you are home free, a driver's license and Social Security inspection under Federal law and you're not under State law, that is a difference.
[image: Max Liebermann, Women in a canning factory, 1879 via].
December 7, 2010
Court Dismisses Targeted Killing Case
Judge John D. Bates (D.D.C.) today dismissed Nasser Al-Aulaqi's case on behalf of his son, Anwar Al-Aulaqi, to stop the administration from killing his son. Anwar is a U.S. citizen tagged by the Obama administration as a terrorist and targeted for extrajudicial killing. We most recently posted on the case here.
The 83-page opinion in Al-Aulaqi v. Obama concludes that Nasser lacks standing, failed to allege a violation of the Alien Tort Statute, and that the case raises non-justiciable political questions. (Judge Bates declined to rule on the administration's state secrets claim.) The ruling does not address the merits--except to say that that the case is "unique and extraordinary."
Judge Bates ruled that Nasser lacks standing as next-friend or under third-party-standing rules. According to Judge Bates, Nasser failed to explain why Anwar could not appear in court himself and failed to show that he would be truly dedicated to Anwar's best interests. (Judge Bates wrote that "no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities"--even, apparently, if he is subject to killing or indefinite detention as a terrorist if he shows up. Judge Bates also ruled that Nasser did not show that Anwar even wanted to bring this case--and therefore Nasser did not show that he was representing Anwar's best interests.) Moreover, Nasser did not allege a sufficient harm--loss of his relationship with his son--to support third-party standing.
Next Judge Bates ruled that Nasser failed to satisfy the requirements of the Alien Tort Statute--both that he suffered a legally cognizable tort that rises to the level of a customary international law norm, and that the U.S. waived sovereign immunity. As to the former, Judge Bates ruled that a threatened extrajudicial killing is not a violation of customary international law (even if an actual extrajudicial killing is). Moreover, this case has a complicating factor: an alien (Nasser) brings the case on behalf of a citizen (Anwar). The ATS doesn't allow for this. As to the latter, the U.S. has not waived immunity.
Finally, Judge Bates ruled that the case is barred by the political question doctrine. Resolution of the case would require the court to delve into complicated issues of foreign affairs and national security, and therefore the court must abstain.
The opinion recognizes the importance and the complicated and troubling nature of the case--on both sides. (It starts with a series of questions like this: "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen for death?" And this: "Can a U.S. citizen--himself of through another--use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for 'jihad against the West,' and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?" Good questions, indeed.) But it doesn't address these, at least not directly. Instead, it dismisses the case largely on non-merits issues. In so doing, the court leaves the substantive questions for the political branches--here, the executive alone. In short, under this opinion there doesn't appear to be a way that a U.S. citizen could safely challenge an ordered extrajudicial killing through the U.S. courts: Upon revealing her- or himself, she or he would almost certainly be killed or detained (indefinitely). (If the latter, she or he could challenge the detention by way of habeas, but could apparently not challenge the ordered killing.) This apparently leaves unchecked power in the hands of the executive to order killings of anyone, including U.S. citizens, it deems a terrorist.
Recognizing the "drastic nature" of the government's power, Judge Bates tried to limit the ruling in two ways--limiting the political question analysis to the facts, and declining to rule on the state secrets privilege. But in the end, the holdings on standing, the ATS, and even the political question doctrine mean that targets of extrajudicial killings have no real way to challenge the government in the courts.
December 7, 2010 in Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, Opinion Analysis, Political Question Doctrine, Recent Cases, Separation of Powers, Standing, State Secrets, War Powers | Permalink | Comments (0) | TrackBack
December 6, 2010
Karlan on Judicial Activism
phrase “judicial activist” (or “activist judge”) is so frequently used that it has come to exemplify what George Orwell described in the 1946 essay “Politics and the English Language” as a term with “no meaning except in so far as it signifies ‘something not desirable.’”
Karlan also provides a bit of perspective Justice Roberts - - - Justice Owen Roberts - - - and the issue of legislators who abdicate their own responsibility to the Constitution.
The column packs a lot of important ideas into a easily readable and condensed form. ConLawProfs teaching undergraduate courses might find this column could be the solid basis for an assignment, either at the beginning of next semester or the close of this one. "Discuss."
Pay Czar is Constitutional, OLC Rules
The Office of Legal Counsel released a memo late last month opining that the "Pay Czar" is an inferior officer and therefore not subject to Senate advice and consent under the Appointments Clause. The upshot: The Pay Czar is constitutional.
The Pay Czar--or, formally, the Special Master for Troubled Asset Relief Program Executive Compensation--was created by the Treasury Secretary pursuant to the Emergency Economic Stabilization Act and the Troubled Asset Relief Program, or TARP. Under the TARP legislation, the Secretary had the power to set executive compensation and corporate governance standards for TARP fund recipients. The Secretary issued interim final rules on June 15, 2009, and established the office of the Pay Czar to set and implement standards.
The Pay Czar came under fire last year from those who claimed that the Obama administration was governing under the table with secretive appointed "czar" positions. Some also came under fire as violating the Appointments Clause. That Clause reads as follows:
[The President] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Officers thus fall into two categories: Principal officers (subject to Senate advice and consent); and inferior officers (subject to appointment as Congress may authorize). If the Pay Czar is a principal officer, the appointment violated the Appointments Clause (because there was no Senate advice and consent). If, however, the Pay Czar is an inferior officer, and if the TARP legislation reasonably provided for its appointment, there's no Appointments Clause problem (because inferior officers do not require Senate advice and consent).
The Supreme Court set out factors for determining when an officer is a principal officer in Morrison v. Olson and considerations for this determination under Edmond v. United States. The OLC opined that the Pay Czar is an inferior officer under either approach. Under Morrison, the OLC opined that the Pay Czar is subject to at-will removal by the Secretary, the office's duties are limited and defined, the jurisdiction is limited to TARP recipients' executive compensation and corporate governance, and the tenure stops when TARP funds are repaid.
Under Edmond, the OLC opined that the Pay Czar is removable at-will by the Secretary, and Pay Czar decisions are reviewable by the Secretary. (The OLC wrote the longest on this latter consideration. The interim rule makes the Pay Czar's decisions "final and binding," suggesting that the Secretary cannot review them. But the OLC, looking at Department interpretation of the rules and precedent, opined that the Secretary could review them.)
Prop 8 Perry v. Schwarzenegger Oral Argument in Ninth Circuit
The extensive oral argument in Perry v. Schwarzenegger has just concluded before a panel of the Ninth Circuit. In Perry, federal district judge Walker found California's Proposition 8 unconstitutional, and the case is on appeal under an expedited schedule.
The two hour and 45 minute video from C-SPAN, with an uncorrected transcript, is available here.