December 18, 2010
Repeal of Don't Ask, Don't Tell Military Policy
The United States Senate has passed the Don't Ask, Don't Tell Repeal Act of 2010, H.R.2965, by a vote of 65-31 (with 4 Senators not voting). Senator Reid had filed for cloture on the bill on Thursday. Obama is expected to sign the bill into law.
The Don't Ask Don't Tell military policy has been under much pressure. The military itself was no longer supportive of the policy according to an extensive DOD report issued last month. A federal judge in California ruled the policy unconstitutional, a ruling the Obama administration appealed to the Ninth Circuit where it is presently under review. The United States Supreme Court had previously declined to review the policy.
For those interested in teaching and writing about "social change," the Don't Ask, Don't Tell military policy provides rich material. In addition to the recent report and cases, there has been much legal scholarship arguing against the policy, some of which we discussed here and here. Obama has been criticized for not being more assertive in removing the policy.
Moreover, the Don't Ask, Don't Tell policy itself resulted from an eventual compromise on President Clinton's attempt to remove the per se ban of homosexuals from the military. Previous to Clinton's attempt to remove the ban, there had been litigation challenging the ban, including one of the earliest - - - and one of the few successful - - - cases brought by Perry Watkins, pictured right. As the en banc Ninth Circuit described the case in its 1989 decision in Watkins v. United States Army:
The United States Army denied Sgt. Perry J. Watkins reenlistment solely because he is a homosexual. The Army refused to reenlist Watkins, a 14-year veteran, even though he had been completely candid about his homosexuality from the start of his Army career, even though he is in all respects an outstanding soldier, and even though the Army, with full knowledge of his homosexuality, had repeatedly permitted him to reenlist in the past. The Army did so despite its longstanding policy that homosexuality was a nonwaivable disqualification for reenlistment. The issue before the en banc court is whether the Army may deny reenlistment to Watkins solely because of his acknowledged homosexuality.
The court held that the Army was estopped from denying Watkins reenlistment (and a pension), although notably several judges would have held the per se disqualification unconstitutional at that time.
Additionally, any consideration of the constitutional history of Don't Ask Don't Tell should include the related matter of the Solomon Amendment. The Solomon Amendment was aimed at law schools that were barring the military from recruiting on campus because of noncompliance with the school's anti-discrimination policy. The Amendment provided that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds. The challenge did reach the United States Supreme Court in Rumsfeld v. FAIR, the Court upholding the Solomon Amendment in a 8-0 decision.
What is not resolved by the Don't Ask, Don't Tell Repeal Act of 2010 is the fate of persons who were discharged under the policy. For example, in September a federal judge ruled that the policy was unconstitutional as applied to Major Margaret Witt and ordered that she be restored to her position as a Flight Nurse in the Air Force. The previously mentioned DOD report has a re-accession policy.
December 17, 2010
U.S. to Support UN Declaration on the Rights of Indigenous Peoples
President Obama announced yesterday at the White House Tribal Nations Conference that the U.S. will now lend its support to the UN Declaration on the Rights of Indigenous Peoples.
The Declaration is a non-binding treaty designed to protect the human rights of indigenous peoples. It incorporates rights in the UN Charter, the Universal Declaration, and international human rights law, and specifically protects the right to self-determination and cultural rights, among others. The Declaration was adopted in 2007 over the opposition of the United States and three other member states.
President Obama announced on April 20, 2010, that the U.S. would reconsider its position on the Declaration. (Two days later, the UN special rapporteur on the rights of indigenous peoples told the Permanent Forum on Indigenous Issues that "[t]he [worldwide] violations of indigenous peoples are deep, systemic and widespread.") There's apparently little publicly available information on the review; DOJ's Office of Tribal Justice mentions it here, and the State Department mentions it here. The Office of Legal Counsel opined in 1996 that the U.S. government could establish the kind of government-to-government relationship that it currently maintains with federally recognized Indian Tribes with "other appropriately constituted indigenous communities within the jurisdiction of the United States." But otherwise there's no publicly available OLC opinion on the Declaration. The only bill in Congress to support the Declaration stalled in the House Committee on Foreign Affairs.
It's not clear what "support for the Declaration" means to the administration, where the Declaration is non-binding and where many of the rights contained in it (like many of the rights contained in other international human rights instruments) exceed those provided under (or required by) the U.S. Constitution. President Obama committed--and came through on--opening up the government to Native Americans and Native American concerns, but full compliance with the Declaration would go several significant steps further. Given the non-binding nature of the Declaration, its rights (which exceed our own constitutional rights and traditional practices), and the government's historic treatment of Native American peoples, it seems likely that "support for the Declaration" means something like "treat the Declaration as aspirational"--a move toward recognizing the rights contained it, but stopping short of treating it as mandatory.
December 16, 2010
Ninth Circuit Upholds State Armenian Genocide Victim Protection
A divided three-judge panel of the Ninth Circuit last Friday upheld California's law providing for a cause of action by Armenian Genocide victims (or their ancestors) against insurance companies that sold them a policy in Europe or Asia between 1875 and 1923.
Defendant insurance companies in Movsesian v. Victoria Versicherung AG argued that the state law was preempted by "a clear, express federal policy against the use of the term 'Armenian Genocide.'" But the majority ruled that any executive branch communications arguing against recognition of the Armenian Genocide were outweighed by federal government statements in favor of such recognition. Moreover, some forty states recognize the Genocide, and the federal government has never opposed such recognition.
Defendants also argued that the law was preempted under field preemption. But the majority ruled that California's law is a valid regulation of the insurance industry, citing Am. Ins. Assoc. v. Garamendi, and its effect on foreign affairs is merely incidental, at most.
Judge Thompson wrote in dissent that the law "clearly conflicts with . . . express federal policy" against recognizing the Armenian Genocide, as evidenced by President Clinton's and President Bush's opposition to three House Resolutions to formally recognize the Genocide. Op. at 19662-3. As to field preemption, he wrote that the law interferes with the federal government's "primar[y], if not exclusiv[e]" authority over foreign affairs, citing Zschernig v. Miller and Hines v. Davidowitz.
Ireland's Abortion Criminalization at the European Court of Human Rights
In a lengthy decision today, the European Court of Human Rights (the Grand Chamber) held Ireland's criminalization of abortion contravened the European Convention on Human Rights as to one of the three women litigants.
Central to the decision in Case of A, B, and C v. Ireland, is Article 8 of the European Convention on Human Rights:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The challengers, A, B, and C, all residents of Ireland who traveled to the United Kingdom to obtain an abortion because of the criminalization of abortion in Ireland, argued that their rights under Article 8 were violated.
Each of the women has sympathetic circumstances. Challenger A was impoverished, suffering from depression and recovering from alcoholism, has four children in foster care with whom she is struggling to be reunited. Challenger B was single and feared an ectopic pregnancy. Challenger C was in remission from cancer, and feared both a relapse and that certain treatments may have caused damage to the fetus.
The Court found Article 8 was contravened only with regard to Challenger C. Ireland's violation was a failure to implement its existing constitutional right to an abortion when the pregnant woman's life was at stake.
The decision is thus a narrow one and certainly does not invalidate Ireland's abortion ban.
December 14, 2010
Animal Porn - Criminalized by Federal Law Again
Without much fanfare, President Obama signed into law the Animal Crush Video Prohibition Act of 2010, intended to cure the defects of the previous law, held unconstitutional last April in United States v. Stevens. In Stevens, the Court affirmed the Third Circuit opinion with only Alito in dissent. The Court was particularly concerned about the overbreadth of the statute, which could potentially criminalize hunting and similar videos. The Court declined the invitation to carve out an "animal cruelty" exception to the First Amendment's obscenity doctrine, similar to the "child pornography" exception.
In the 2010 statute (above), Congress reasserts its findings that there are "certain extreme acts of animal cruelty that appeal to a specific sexual fetish. These acts of extreme animal cruelty are videotaped, and the resulting video tapes are commonly referred to as 'animal crush videos.’ " The statute defines 'animal crush video' as "any photograph, motion-picture film, video or digital recording, or electronic image that—
(1) depicts actual conduct in which 1 or more living nonhuman mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury . . . . and
(2) is obscene.
Note that the definition does not include insects.
The statute specifically exempts any visual depiction of
(A) customary and normal veterinary or agricultural husbandry practices;
(B) the slaughter of animals for food; or
(C) hunting, trapping, or fishing.
The statute also asserts its extraterroritorial application.
Recall that Stevens was prosecuted for distributing videos of pit bulls engaging in dogfights through his business, "Dogs of Velvet and Steel." Does the Congressional stress on "obscene" (requiring the "prurient interest in sex") in the 2010 statute mean that Stevens could not prosecuted? Does this necessarily guarantee the law's constitutionality?
[image: cover of Spicy Adventure Stories magazine, December 1936, via]
December 13, 2010
Health Care Reform Unconstitutional, District Judge Rules
Judge Henry Hudson (E.D. Va.) today in Virginia v. Sebelius ruled the individual health-insurance mandate in the federal health care reform package unconstitutional. Judge Hudson ruled that the individual mandate exceeded Congress's authority under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare (Tax) Clause. The decision was unsurprising. (Judge Hudson previously denied the government's motion to dismiss, anticipating his ruling on the merits here.) Here are some highlights:
- The Commerce Clause. Judge Hudson ruled that the individual mandate exceeded congressional authority under the Commerce Clause, because it regulates "inactivity," not economic activity. Judge Hudson described this as unprecedented--leading to unfettered congressional authority. The mandate wasn't saved by an aggregation theory, taking the aggregate economic effect of decisions not to purchase health insurance.
- The Necessary and Proper Clause. Judge Hudson ruled that the Necessary and Proper Clause added nothing to the Commerce Clause: If the power's not in the Commerce Clause, the Necessary and Proper Clause doesn't give Congress the power to do it. This is rather breathtaking, given the Supreme Court's ruling last term in U.S. v. Comstock, upholding the federal civil commitment statute under the Necessary and Proper Clause, and, in the course, reinforcing a broad reading of the Necessary and Proper Clause.
- The General Welfare Clause. Judge Hudson ruled that the mandate operated as a penalty masquerading as a tax. Interestingly, he pointed to congressional intent here, suggesting that the tax for failing to purchase health insurance is, in fact, a penalty. (He didn't similarly defer to Congress on the Commerce Clause and Necessary and Proper Clause.)
- The Tenth Amendment. The Tenth Amendment played a very minor role in the decision. Judge Hudson quoted it at the end of his tax analysis, writing first that Congress has defined authority under the Constitution under Article I, Section 8, and next merely quoting and citing the Tenth Amendment.
- Relief. Judge Hudson severed the individual mandate and directly dependent provisions from the rest of the legislation, ruling that only those sections are unconstitutional (and preserving the rest of the legislation). He also only issued a declaratory judgment, not injunctive relief. The ruling is thus quite narrow and recognizes that the issue will be resolved finally in the higher courts.
We most recently posted on health reform lawsuits here, in Liberty University v. Geithner. In that case, the federal district judge dismissed a similar constitutional challenge to reform. Check out the ACA Litigation Blog for litigation documents in all these cases.
Supreme Court Denies Certiorari in Lawyer Advertising Case
Last March, the Second Circuit in Alexander v. Cahill affirmed a declaration that substantial portions of the New York's professional responsibility rules were unconstitutional. Today, the United States Supreme Court denied a petition for writ of certiorari.
The regulations at issue were a series of content-based restrictions intended to protect the public from potentially misleading advertising by attorneys. N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c) provided in relevant part that
(c) An advertisement shall not:
(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge . . .
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results
Applying the test from Central Hudson Gas & Electric v. Public Service Cmm'n of NY (1980), the Second Circuit first focused on whether the speech being regulated was misleading, thus making the remainder of the Central Hudson analysis unnecessary.
The court observed that the regulation (and the Bar) conflated irrelevant and misleading, and further assumed that the Bar could accurately predict what the public would find relevant. The challengers to the regulations included the Alexander & Catalano law firm, with its motto "The Heavy Hitters" and a series of commercials available on its website.
the sorts of gimmicks that this rule appears designed to reach-such as Alexander & Catalano's wisps of smoke, blue electrical currents, and special effects-do not actually seem likely to mislead. It is true that Alexander and his partner are not giants towering above local buildings; they cannot run to a client's house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens. But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe-purely as a matter of “common sense”-that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics. Indeed, some of these gimmicks, while seemingly irrelevant, may actually serve “important communicative functions . . . .
The court then proceeded through the rest of the Central Hudson balancing test for commercial speech.
ConLawProfs who are (still) looking for a good commercial speech problem for an exam might take a look at the Second Circuit case. ConLawProfs looking for materials for next semester might also take a look at the case: it's a good way to combine professional responsibility issues and the First Amendment. And from my experience, showing some of the commercials in class is fun.
December 12, 2010
The Senate, sitting as a Court of Impeachment, voted last week to convict U.S. District Judge G. Thomas Porteous, Jr. (E.D. La.), on all four articles of impeachment passed by the House. Porteous is only the eighth federal judge removed from the bench by Congress.
Prof. Jonathan Turley (GW) represented Porteous in the Senate. (His argument begins at the bottom of the middle column here.) He raised three "constitutional issues that are rather unique and of considerable concern among law professors and legislators alike":
- Impeachment Article II (alleging corruption, including corruption before Porteous was appointed to the federal bench) "is widely recognized as a pre-Federal claim"--i.e., it involves behavior prior to Porteous's appointment to the bench. Turley argued that no impeachment has been based upon pre-Federal claims, and the Congress shouldn't start here. (Turley references a characteristically excellent Congressional Research Service report on impeachments and removals, with focuses on recent impeachments of Judge Kent and Judge Porteous.)
- Impeachment Article I (alleging corruption in the Lifemark case, in which Porteous had a financial relationship with the law firm representing the defendant, and declined to recuse himself) draws upon an "honest services" theory. But the Supreme Court confined the federal honest services act to kickbacks and bribery last term in Skilling v. United States to avoid vagueness problems--after the House passed its Articles. Turley argues that Congress, like the Court, should reject an honest services theory.
- Each Article relies upon "aggregation." Turley explained why this is a constitutional problem:
Aggregation is a method by which House Members, when drafting Articles of Impeachment, can circumvent the high vote required in the Constitution. They can essentially remove a Federal judge even though less than two-thirds of [Senators] agree on any specific allegation. This is accomplished by combining different claims in one article so that no single act is subject to a stand-alone vote. By lumping together or aggregating issues, you can secure total votes even if only 5 or 10 Senators might agree that any given act is sufficient to remove a Federal judge. That negates article I, section 3, which says "no person shall be convicted without Concurrence of two-thirds of the members present."
Prior to the Senate vote on removal, the Senate voted unanimously (94-0) against disaggregating the Articles. Here are the votes on the Articles:
Article I: 96-0, guilty
Article II: 69-27, guilty
Article III (false statements in a personal bankruptcy filing): 88-8, guilty
Article IV (knowingly made false statements to the Senate and FBI during confirmation): 90-6, guilty
There has been a resurgence of "hippies" in political and constitutional discourse. Yet another example is Paul Krugman's post today at the NYT. Krugman criticizes a column in WaPo by Dana Millbank for praising President Obama for "punching the hippies" and rewriting recent health care reform history "as a story of how those DF hippies got in the way, until the centrists saved the day." Although Millbank does not use the word "hippies" in his column, the "hippie" motif - - - including the twinned adjectives acronymized as "DF" - - - has been percolating with more and more energy of late.
Thus, it's a good time to recall US Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973), also affectionately known to many students as the "hippie foodstamp case." In Moreno, the Court held a provision unconstitutional even as it applied rational basis review under the equal protection clause. As the Court stated:
The legislative history that does exist, however, indicates that that amendment was intended to prevent so-called "hippies" and "hippie communes" from participating in the food stamp program. See H. R. Conf. Rep. No. 91-1793, p. 8; 116 Cong. Rec. 44439 (1970) (Sen. Holland). The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the 1971 amendment.
413 US at 527-528.
Moreno paved the way for the "animus" exception to a legitimate government interest that decisive in Romer v. Evans and is being argued in the Proposition 8 appeal now under consideration by the Ninth Circuit.