Monday, January 31, 2011
Judge Vinson (N.D. Fla.) ruled today in State of Florida v. U.S. Dep't of Health and Human Services that the Patient Protection and Affordable Health Care Act was unconstitutional--in its entirety. The ruling declared that the individual health insurance mandate exceeded congressional authority under the Commerce Clause and the Necessary and Proper Clause. Judge Vinson wrote that because the mandate cannot be severed from the rest of the Act, the whole thing was unconstitutional. We posted previously on the case--which was brought by governors or AGs in 26 states, two private citizens, and a business association--here and here.
In striking down the mandate, Judge Vinson ruled that the Commerce Clause only authorizes Congress to regulate activity, that failure to purchase health insurance is not an activity, and that there's nothing inherent or unique in the health care market or in the decision not to purchase health insurance that ties the failure to purchase health insurance to interstate commerce.
Judge Vinson emphasized throughout his analysis that the question--whether Congress can regulate a non-"activity"--was novel. This alone, he ruled, did not make it unconstitutional. But it seemed to put a heavy thumb on the scale in his analysis. (He didn't seem troubled that other congressional acts upheld under the Commerce Clause were also "novel" when they first came to the courts: wheat production for home use in Wickard v. Filburn and home production and use of marijuana in Gonzales v. Raich, just to name two. But he did write this about Wickard: "[B]efore Wickard was decided, it is likely that most people (including legal scholars and judges) would have thought it equally "ridiculous" to believe that Congress would one day seek (and be permitted) to regulate (as interstate commerce) the amount of wheat that a farmer grew on a small private farm for his personal consumption." Op. at 47, n. 20.)
He also emphasized the unbridled power that would result if Congress could require individuals to purchase health insurance: if Congress could do this, he wrote, Congress could do anything--require us to buy certain cars, to buy certain bread, and even to buy broccoli. These kinds of regulations exceed congressional authority, he wrote, because they run counter to the Framers' intent and to precedent and practice.
Judge Vinson was perhaps most emphatic in writing that the non-act of not purchasing health insurance had no effect on interstate commerce:
If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, [even the aggregate] impact must be zero, and of no effect on interstate commerce.
Op. at 50. According to Judge Vinson, it would require "pil[ing] inference upon inference" to get from not insuring to the interstate economy, thus running afoul of the principle in U.S. v. Lopez.
Judge Vinson wrote separately about the Necessary and Proper Clause. He wrote that this Clause also failed to support the individual mandate, largely because the Commerce Clause didn't support the mandate:
The Necessary and Proper Clause cannot be utilized to "pass laws for the accomplishment of objects" that are not within Congress' enumerated powers. As the previous analysis of the defendants' Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established "outer limits" of the Commerce Clause and effectively remove all limits on federal power.
Op. at 62.
Judge Vinson ruled that the Medicaid expansion portion of the Act did not violate the Spending Clause. He ruled that it clearly met the standards under South Dakota v. Dole and that it didn't unconstitutionally "coerce" the states. (The states argued that the expansion coerced them into continuing their participation in Medicaid, even as the cost of participating became unsustainable.)
But he nevertheless ruled the entire Act unconstitutional, because, he wrote, the individual mandate wasn't severable from the rest of the Act.
Judge Vinson's ruling is now the second federal district court ruling that the individual mandate is unconstitutional. (Judge Henry Hudson (E.D. Va.) issued the first ruling last month.) There are also two federal court rulings upholding the constitutionality of the mandate.
There is a growing movement for a right to an attorney in civil cases, sometimes known as a civil Gideon, coupled with increased funding for civil legal services and legal aid. We've discussed the right to counsel in civil litigation here, here, here, here, here, and here.
Judge Jonathan Lippman has recently written in the NY Law Journal that:
At best, only 20 percent of the civil legal needs of low-income New Yorkers are being met today. Providers have no choice but to turn away vast numbers of eligible clients, including eight out of every nine in New York City.
One result of this deepening crisis is that the courts are seeing an ever-expanding number of unrepresented litigants. We heard testimony from judges, clients, lawyers and others about what happens when litigants try to navigate the courts without counsel.
Befitting his role as chief judge of New York's highest court, Lippman is not making any constitutional arguments. Instead, he posits that there is a "moral and ethical obligation" as well as making efficiency and effectiveness claims. He suggests that
the state begin to reduce the unmet civil legal services needs in those matters that concern the "essentials of life": a roof over one's head, family stability, personal safety free from domestic violence, access to health care and education, or subsistence income and benefits.
This is the recommendation in the Report issued by The Task Force to Expand Legal Services in New York; Judge Lippman presided over the hearings held throughout the state. A New York Times Editorial essentially endorsed the Task Force's recommendation.
Lippman will be speaking at City University of New York School of Law on Thursday, February 3, about the right to an attorney in civil cases.
Admission is free
RSVP required: firstname.lastname@example.org
UPDATE: Discussion of event in New York Law Journal, February 7, 2011.
Sunday, January 30, 2011
Earlier this month, the Environmental Protection Agency (EPA) issued its 99 page final determination regarding the mining permit for Arch Coal, Inc.’s Spruce No. 1 mine, located in southern West Virginia (pictured below). The EPA rescinded the Clean Water Act approval for what would have been one of the largest surface mining sites in Appalachia. The EPA's action is controversial. There are sure to be challenges, just as there are challenges to the recently issued guidance protocols that increase scrutiny on mountaintop coal operations. Indeed, there is a lawsuit filed on behalf of the State of West Virginia filed by the then-Governor of West Virginia, the recently elected United States Senator Manchin. While such litigation typically raises administrative law claims, the denial of a mining permit may also raise the specter of possible constitutional challenges.
The Fifth Amendment's takings clause may provide the constitutional grounding for asserting claims of regulatory takings, especially for those coal and mineral interest owners whose coal cannot be economically mined by more traditional below ground methods.
Professor Patrick McGinley at the West Virginia College of Law analyzes such challenges in his recent work Bundled Rights and Reasonable Expectations: Applying the Lucas Categorical Taking Rule to Severed Mineral Property Interests, 11 Vermont Journal of Environmental Law 525 (2010), available on the journal website. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Supreme Court held that the government must pay just compensation for takings that deprive an owner of “all economically beneficial use” of the owner’s property. The rule is often referred to as the “categorical” or “total takings” rule because the reviewing court need not examine the owner’s expectations in the property.
McGinley argues that “the expectations of owners of less-than-fee interests in one mineral–coal–do not deserve the additional protection of Lucas’s categorical rule.” Id. at 529. He arrives at this conclusion “based upon the consideration of the historic limited expectations of severed coal interest ownership.” Id. Professor McGinley explains:
[W]hen the property owned is a severed coal interest or a more ephemeral interest such as [a] fractional royalty interest . . . , the bundle of rights metaphor seems an inappropriate way to describe the owner’s rights. While there are exceptions, as a general rule, one who owns a possessory interest in coal has, at most, the “right” to sell the coal in place if she can find a buyer; to use the surface to access the reserve; to extract the fuel from the land; and to transport it to market for sale. . . . For owners of non-possessory or non-executory interests in minerals . . . , their “bundle of rights” is sparse indeed. Their rights are narrowly limited to entitlement to a small percentage of the sale price of a mineral extracted from the land and carried to market–such owners do not even possess the right to walk freely upon the land from whence the mineral may be mined. Such ownership “right” is illusory unless and until the mineral is actually mined.
Id. at 571 (citations omitted).
While he disclaims the application of the Lucas categorical rule, McGinley concludes that “Penn Central’s examination of takings claimant’s distinct investment-backed expectations should continue to be applied to claims of regulatory takings of coal property interests severed from fee simple estates in land.” Id. at 529.
Thus, McGinley argues that coal operators and mineral rights owners will find no satisfaction in regulatory takings under the Lucas categorical rule. Nevertheless, the recent EPA action regarding the Spruce No. 1 mine and the 2009 announcement by the EPA that the Obama Administration is taking "unprecedented steps to reduce environmental impacts of mountaintop coal mining" will most likely raise regulatory taking issues under the Fifth Amendment.
(with J. Zak Ritchie)
[image: from cover of EPA final determination on mining permit for Arch Coal, Inc.’s Spruce No. 1 mine]
Saturday, January 29, 2011
Several provisions of the Constitution of the Arab Republic of Egypt address the election of President. The ongoing events in Egypt raise the possibility that the three decade Presidency of Hosni Mubarak (pictured right) is coming to an end.
Article 75 provides that the President must be "must be an Egyptian born to Egyptian parents and enjoy civil and political rights. His age must not be less than 40 Gregorian years." However, it is the next section that governs the process:
The President shall be elected by direct, public, secret ballot. For an applicant to be accepted as a candidate to presidency, he shall be supported by at least 250 elected members of the People's Assembly, the Shura Council and local popular councils on governorate level, provided that those shall include at least 65 members of the People's Assembly, 25 of the Shura Council and ten of every local council in at least 14 governorates.
The number of members of the People's Assembly, the Shura Council and local popular councils on governorate level supporting candidature shall be raised in pro-rata to any increase in the number of any of these councils. In all cases, support may not be given to more than one candidate.
Procedures related to this process shall be regulated by the law. Political parties, which have been founded at least five years before the starting date of candidature and have been operating uninterruptedly for this period, and whose members have obtained at least 5% of the elected members of both the People's Assembly and the Shura Council, may nominate for presidency a member of their respective upper board, according to their own by-laws, provided he has been a member of such board for at least one consecutive year.
As an exception to the provisions of the fore-mentioned paragraph, any political party may nominate for the first presidential elections, to be conducted following the enactment of this Article, a member of its higher board, established before May 10, 2005 according to its by- law. Candidature applications shall be submitted to an independent committee, named the Presidential Elections Committee. The committee shall be composed of the head of the Supreme Constitutional Court as a chairman and the head of the Cairo Court of Appeal, the most senior deputy of the head of the Supreme Constitutional Court, the most senior deputy of the head of the Court of Cassation, the most senior deputy of the State Council and five public figures, recognized for impartiality.
Three of the fore-mentioned public figures shall be selected by the People's Assembly and the other two by the Shura Council upon a recommendation of the bureaus of both houses for a period of five years. The law shall determine who will act on behalf of the chairman or any member of the committee, should there be some reason for their absence.
This committee shall exclusively have the following competences:
- To declare the initiation of candidature and supervise procedures for declaring the final list of candidates;
- To generally supervise balloting and vote-counting procedures;
- To announce elections results;
- To decide on all appeals, challenges and all matters related to its competences, including conflict of jurisdiction;
- To draw up by-laws regulating its modus operandi and method of practicing its competences.
The committee's resolutions shall be passed with a majority of at least seven members. Its resolutions shall be final, self-enforcing and incontestable by any means or before any authority whatsoever. Its resolutions may not be challenged through construing or stay of execution. The law regulating presidential elections shall determine other competences for the committee. The law shall also determine regulating rules governing the nomination of a candidate to replace another one who has vacated his seat for some reasons other than assignment within the period between the starting date of candidature and before the termination of voting. Voting shall be conducted in one single day. The presidential elections committee shall establish committees to administer stages of the voting and ballot-counting process. The committee shall establish main committees to be composed of members of the judiciary to supervise the process in accordance with such rules and regulations as may be decided by the committee.
Election of the president shall be declared when candidates have obtained an absolute majority of the number of valid votes. In the event that none of the candidates has obtained such majority, election shall be repeated, at least after seven days, between the two candidates who have obtained the largest number of votes. Should another candidate obtain a number of valid votes equal to those of the second, he shall take part in the re-election. In this case, the candidate who has obtained the largest number of votes will be declared winner. Voting for electing the president shall be effected, even though one single candidate has applied or even if he was the only candidate remaining due to assignment of the rest of candidates or due to failure to field another candidate in lieu of the one vacating his seat. In this case, the candidate who has obtained the absolute majority of the number of valid votes shall be declared winner.
The law shall regulate procedures to be followed in the event the candidate has failed to obtain this majority. The President shall submit the draft law regulating the presidential elections to the Supreme Constitutional Court following endorsement by the People's Assembly and before promulgation, to determine compliance with the Constitution. The Court shall return its ruling in this connection within fifteen days from date of submission thereto. Should the court decide that one or more provisions of the draft law are unconstitutional; the President shall return it to the People's Assembly to put this ruling into effect. In all cases, the court's ruling shall be binding to all parties and all state authorities. The law shall be published in the official gazette within three days from date of issuance.
An excellent primer on Article 76 is Professor Kristen Stilt's Constitutional Authority and Subversion: Egypt's New Presidential Election System, 16 Indiana International & Comparative Law Review 335 (2006), available on ssrn.
[image: Hosni Mubarak via]
Friday, January 28, 2011
The Judicial Nominating Commission in Iowa, the subject of a recent unsuccessful lawsuit regarding its composition, has sifted through the 60 applicants and sent 9 candidates for the 3 vacancies to the Governor.
There is one woman, one racial minority, and one law professor - - - and then there are 8 other candidates.
Angela Onwuachi-Willig, Professor of Law at the University of Iowa College of Law (pictured left) is also the youngest candidate, at age 37, according to The Des Moines Register.
Onwuachi-Willig is a prolific scholar on race, class, and feminism, including their constitutional aspects. One of Onwuachi-Willig's most influential articles is Just Another Brother on the Supreme Court?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity in which she argues that Thomas' ideology is deeply grounded in black conservative thought, which has a "raced" history and foundation that are distinct from white conservatism. She seeks to explain Justice Thomas's jurisprudence from a black, conservative perspective in cases concerning education and desegregation, affirmative action, and crime.
The current vacancies on the Iowa Supreme Court occurred when three Iowa Supreme Court justices stood for retention last November and were not retained by the voters of Iowa. This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varnum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution.
In a relatively brief (by US standards) and long anticipated opinion (English translation), the court reasoned that the issue of equality - - - or not - - - between same-sex couples and opposite sex couples is one for the legislature and the court should not "substitute" its own judgment. The French opinion provides:
estimé que la différence de situation entre les couples de même sexe et les couples composés d'un homme et d'une femme peut justifier une différence de traitement quant aux règles du droit de la famille ; qu'il n'appartient pas au Conseil constitutionnel de substituer son appréciation à celle du législateur sur la prise en compte, en cette matière, de cette différence de situation....
This reasoning is familiar to those who have read other cases, in the US and elsewhere, that have rejected challenges to excluding same-sex couples from marriage.
France has had same-sex civil unions since 1999, but the status lacks the parental and inheritance rights accorded to married couples.
A three-judge panel of the Sixth Circuit ruled yesterday in Hunter v. Hamilton County Board of Elections that Tracie Hunter, a candidate for Hamilton County (Ohio) Juvenile Court Judge, had a strong likelihood of success on the merits of her equal protection claim that the County Board of Elections treated some provisional ballots more favorably than others.
The case arose at the intersection of Ohio's provisional ballot law, Hamilton County's practice of combining different precincts in the same location, and the Board's examination of ballots at different locations. Under Ohio law, a voter's provisional ballot will be counted if the "individual named on an accompanying affirmation is . . . eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot." Some voters in Hamilton County submitted provisional ballots at the right location, but the wrong precinct. The Secretary of State mandated that the Board "may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification" if, because of poll-worker error, the ballot was submitted in the right polling location but the wrong precinct.
Hunter claimed that the Board applied different standards to two groups of provisional ballots that were submitted at the right location but the wrong precinct. The Board flatly rejected 849 ballots from one location, including 269 submitted at the right location but the wrong precinct, not considering evidence of poll-worker error. But the Board accepted 27 provisional ballots from a different location, ruling that poll-worker error must have caused the voter to submit the ballot to the wrong precinct, because there was only one poll-worker on site at this location. The court:
In particular, the Board explicitly refused to separate from the 849 wrong-precinct ballots those ballots cast at the right polling location but wrong precinct. The evidence of poll-worker error with respect to those 269 ballots--that the ballots were cast at the correct multiple-precinct polling location--is substantially similar to the location evidence considered by the Board with respect to the ballots cast at [the other location].
Op. at 25. According to the court, this disparate treatment "raises serious equal protection concerns." Op. at 27.
But more. The new Secretary of State argued that the district court created more equal protection problems when it ordered a review of the 849 ballots, but not the 27 other ballots. The court rejected this argument, distinguishing Bush v. Gore:
We conclude that the Board's review has met the requirements of Bush v. Gore. Secretary Husted urges that the district court failed to satisfy the requirements of Bush v. Gore when it ordered a "standardless investigation" which was not applied to the first group of 27 ballots, and then was inconsistently implemented with respect to the remaining ballots. But . . . the Board's review of the wrong-precinct provisional ballots was guided by objective criteria provided by [then-]Secretary Brunner to effectuate the district court's order. Moreover, the guidance rejected by the Supreme Court in Bush is different from that used here. The "intent of the voter" standard invalidated in Bush was being implemented differently by different counties with respect to the same presidential election. Because of a lack of "specific standards to ensure its equal application," "each of the counties used varying standards to determine what was a legal vote." Here, however, the district court's order applied to only one jurisdictional entity--Hamilton County--and one race--Hamilton County Juvenile Court Judge. This is not a situation in which a court is announcing a standard to be interpreted differently by multiple jurisdictions, resulting in the unequal counting of votes across counties. Instead, the district court is requiring the Hamilton County Board of Elections to review all deficient provisional ballots within the county under the same standard, and not just those cast at a particular location. Therefore, the district court's order, unlike the statewide order in Bush, does not give rise to inter-jurisdictional differences in how the order is implemented.
Op. at 30-31. The panel upheld that part of the district court's order that the Board investigate the 269 ballots and "[left] to the district court in the first instance, applying the uniformity requirements of Bush v. Gore, to direct the Board how to proceed" regarding these and other contested ballots. Op. at 41.
It is not only law students who believe facebook and twitter are "fundamental rights." State Department Spokesperson P.J. Crowley, speaking to AlJezeera about the situation in Eqypt, described "social media" as a "fundamental right, as clear as walking into a town square."
The statement starts at 50 seconds.
The AlJazeera interviewer suggests that the rubber bullets and detentions might be worth more emphasis than "facebook and twitter."
Thursday, January 27, 2011
Senators Harry Reid (D-Nev.) and Mitch McConnell (R-Ky.) today agreed to changes in the Senate's filibuster practices. But the basic cloture rule appears to remain intact. We most recently posted on the issue here (where we predicted that the Senate would not achieve filibuster reform this Congress).
According to the Washington Post, the Senate leaders agreed to end secret holds, the practice in which a single anonymous senator can hold-up action until the majority can muster 60 votes. But leaders also agreed to retain the basic 60-vote requirement for cloture under Senate Rule XXII, the cloture rule. The agreement ends one of the most controversial aspects of the filibuster--the anonymous hold--but falls short of reform that some sought.
The Senate leaders also announced agreements to allow the waiving of the reading of an amendment under certain circumstances and to drop the Senate confirmation process for about 400 federal agency nominees. Both measures will help speed up Senate business; the latter measure will help ensure that federal agencies are fully staffed.
Wednesday, January 26, 2011
Chief Judge Roslyn O. Silver (D. Az.) last Friday issued General Order No. 11-01, Declaration of Judicial Emergency Under the Speedy Trial Act, for the United States District Court for the District of Arizona.
The judicial emergency is authorized by 18 U.S.C. Sec. 3174(e):
If the chief judge of the district court concludes that the need for suspension of time limits in such district under this section is of great urgency, he may order the limits suspended for a period not to exceed thirty days. Within ten days of entry of such order, the chief judge shall apply to the judicial council of the circuit for a suspension pursuant to subsection (a).
The Order suspends time limits in 18 U.S.C. Sec. 3161(b) of the Speedy Trial Act:
Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. If an individual has been charged with a felony in a district in which no grand jury has been in session during such thirty-day period, the period of time for filing of the indictment shall be extended an additional thirty days.
According to the Order, "[t]he need to suspend the time limits is of great urgency due to a heavy criminal caseload, a lack of adequate resources, and the tragic death of Chief Judge John Roll on January 8, 2011."
The District of Arizona ranks third in the nation for criminal cases and defendant filings. The U.S. Attorney's Office has doubled in size since 2008, bringing yet more criminal cases. But there are only three active federal district court judges in Tucson. Each has 1,200 criminal cases. There are two judicial vacancies in Tucson and one in Phoenix.
Tuesday, January 25, 2011
Senate Democrats today concluded that they couldn't muster the 51 votes necessary to change Senate Rule XXII, the cloture rule, and thus formally reform the filibuster.
Why just 51 votes, a bare majority? Under the "constitutional option," the Senate can change its own rules, including the cloture rule, on the first day of the legislative session, because before it votes to (re)adopt its rules it operates under default parliamentary rules, which require a bare majority. After the first day, a rules change requires a two-thirds vote. We most recently posted on filibuster reform efforts here.
Senate Majority Leader Harry Reid (D-Nev) extended the first legislative day (which started three weeks ago) through today in order to round up 51 votes for a rules change. But according to The Hill, there aren't 51 votes for the change, and the Senate was set to adjourn the first day tonight.
Instead of a formal rule change, it sounds like Democrats and Republicans are closing in on an informal agreement: The Dems will allow Republicans more room to offer amendments, and the Republicans will agree to reduce their use of the filibuster.
Monday, January 24, 2011
A three-judge panel of the Fifth Circuit last week upheld the affirmative action plan used by the University of Texas for its undergraduate admissions. The panel ruled in Fisher v. University of Texas that the plan was modeled on the plan that the Supreme Court upheld in Grutter v. Bollinger--that it used race as only one factor and that it looked at applications as a whole in order to achieve the educational benefits of diversity at the school. The plan thus satisfied strict scrutiny.
UT has a two-part admission policy. First, the school automatically admits Texas seniors in the top 10% of their high school graduating class. Next, for all others UT uses an index based upon two required essays and a "personal achievement score," which represents an evaluation of the applicant's entire file (including, among many other factors, race).
Only the second part was at issue in the case. But the panel ruled that the second part met the standard under Grutter. The panel first rejected the appellants' argument that it should apply a "strong basis in evidence" standard. That standard, the panel ruled, was appropriate for backward-looking employment decisions to remedy past wrongs, but not for forward-looking, holistic educational decisions to enhance diversity:
The high standard for justifying the use of race in public employment decisions responds to the reality that race used in a backward-looking attempt to remedy past wrongs, without focus on individual victims, does not treat race as part of a holistic consideration. In doing so, it touches the third rail of racial quotas. Wygant and Croson both involved explicit quotas; in Ricci, the Court was concerned that the city's use of race threatened to devolve into a de facto quota.
By contrast, Grutter recognized that universities are engaged in a different enterprise. Their holistic approach is part of a forward-looking effort to obtain the educational benefits of diversity. The look to race as but one element of this further goal, coupled with individualized consideration, steers university admissions away from a quota system. Grutter teaches that so long as a university considers race in a holistic and individualized manner, and not as part of a quota or fixed-point system, courts must afford a measure of deference to the university's good faith determination that certain race-conscious measures are necessary to achieve the educational benefits of diversity, including attaining critical mass in minority enrollment.
Parents Involved in Community Schools v. Seattle School District No. 1 further supports this understanding. When scrutinizing two school districts' race-conscious busin plans, the Court invoked Grutter's "serious, good faith consideration" standard, rather than the strong-basis-in-evidence standard that Appellants would have us apply.
Op. at 31.
The panel, looking closely at the numbers, also rejected the appellants' arguments that the plan amounted to racial balancing and that UT did more than necessary to achieve a critical mass for diversity. (The panel noted that the first part of the policy, the 10% rule, was "at best a blunt tool for securing the educational benefits that diversity is intended to achieve"--that it alone wasn't doing the job and therefore wasn't an adequate, alternative, race-neutral way of obtaining critical mass, as appellants argued.)
Judge Emilio Garza issued a sharp and lengthy special concurrence, agreeing with the result under Grutter, but strongly disagreeing with Grutter. Here's a taste:
My disagreement with Grutter is more fundamental, however. Grutter's failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all.
The idea of dividing people along racial lines is artificial and antiquated. Human beings are not divisible biologically into any set number of races. A world war was fought over such principles. Each individual is unique. And yet, in 2010, governmental decisionmakers are still fixated on dividing people into white, black, Hispanic, and other arbitrary subdivisions. . . .
When government divides citizens by race, matters are different. Government-sponsored discrimination is repugnant to the notion of human equality and is more than the Constitution can bear.
Op. at 83-84.
The Maryland Access to Justice Commission recently released its report Implementing a Civil Right to Counsel in Maryland, a strategy paper for implementing a state-paid civil right to counsel, or Civil Gideon, in that state.
The report advocates for a civil right to counsel in cases involving basic human needs--shelter, sustenance, safety, health, child custody, and others. (This approach is consistent with a 2010 recommendation of the ABA.) It also advocates for a right to counsel on appeal in these cases.
The report comes seven years after a sharply divided Maryland Court of Appeals, the state's high court, declined to rule on a claimed right to counsel in Frase v. Barnhart, a child custody case. (The court agreed on the result in the case, but the dissent would have reached the right-to-counsel issue.) The petitioner in Frase argued that the Declaration of Rights in the Maryland Constitution required court-appointed counsel (under the "law of the land" clause, the "open courts" provision, and the due process clause), thus sidestepping the Fourteenth Amendment Due Process Clause and Lassiter v. Dep't of Social Services (holding that the Due Process Clause does not require appointed counsel in all civil cases, and that there's a presumption that there is no right to appointed counsel where physical liberty is not at stake).
The report also looks to the need for legal services in basic human needs cases and estimates that 344,470 poor Marylanders have unmet legal needs. According to the report, it would cost $106.6 million to provide them with an attorney.
For more on the civil right to counsel, check out the National Coalition for a Civil Right to Counsel.
Sunday, January 23, 2011
The jurisprudential and political controversy regarding the use of "foreign" law by the United States Supreme Court has prompted some humor from The Onion:
WASHINGTON—The U.S. Supreme Court announced Monday that it would have to review two weeks' worth of procedure after determining it had mistakenly based its last three rulings on a copy of the Belgian constitution left in the justices' chambers. "When I presented my case on legal citizenship status under proposed changes to immigration law, I wondered why they said my argument was in direct opposition to the parliamentary rights of the Walloons," . . . . more here.
(H/T Laura Nixon)
Saturday, January 22, 2011
The recent constitutional controversies that have arisen in West Virginia are particular, but hardly unique. Similar problems of succession under state constitutions can affect any number of states: recall the situation in New York in the summer of 2009.
However, there is an argument that West Virginia itself is unconstitutional. The problem is not one of succession but one of secession. Virginia seceded from the Union in the Spring of 1861; by autumn, a number of western Virginia counties voted to form a new Unionist state.
the amazingly complicated question of whether West Virginia is lawfully a State of the United States, a question whose answer is more than a quaint historical curiosity, but is surprisingly rich in its implications for constitutional interpretation today. The constitutionality (or not) of West Virginia is a parable with potentially huge lessons to teach about constitutional “formalism”–strict adherence to the clear structural commands of the Constitution, even when they seem inconvenient or even nonsensical–and about “textualism”–legal interpretation governed by the meaning the language (and punctuation) a legal text would have had to a fully informed speaker or read at the time of its adoption–as a methodology of constitutional interpretation.
Id. at 294. The argument that West Virginia may not be a state rests on the troublesome language of Article IV, Section 3, Clause 1 of the U.S. Constitution:
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The mandate within the second clause - - - that “no new State shall be formed or erected within the Jurisdiction of any other State”– - - appears to flatly prohibit the creation of a new state from within the territory of a preexisting state, irrespective of whether consent is given. The case of West Virginia, carved out from Virginia, would seem to fall under this prohibition.
Kesavan and Paulsen's discussion of textualism focuses on the second semicolon of Article IV, Section 3 , which may be more like a comma than a period, or perhaps not. The meaning of this semicolon is unclear because punctuation use in the Constitution is too imprecise, too non-uniform, and too unclear. As to the problem of ambiguous modification, the consent proviso may modify the antecedent second clause that relates to the partition of a State, but it may not. Indeed, the presumption of the last-antecedent canon is that the consent proviso does not modify the antecedent second clause. The answer is not clear one way or the other, and the last-antecedent canon is not an inflexible rule.
Next, the authors turn to the history, structure, and the so-called “secret drafting history” of the Constitution. They conclude that “[t]he second-best evidence–the history–better (though imperfectly) supports the interpretation that new States may be formed or erected within the jurisdiction of another State with the appropriate consents. The secret drafting history clearly shows that this interpretation was intended.” Id. at 395.
While in the end there is no clear answer to the assailed statehood of West Virginia, Kesavan and Paulsen build a strong case against such conclusions.
Only if one ascribes presumptive (or more) significance to the semicolon and the last-antecedent canon; leans against the position of both advocates of the Constitution (James Madison) and opponents (Luther Martin); treats as immaterial the construction placed on Article IV, Section 3 by early Congresses; and ignores the records of the Philadelphia Convention suggesting a contrary specific intention and understanding (even if not public) can one conclude that the second clause of Article IV, Section 3 is a flat prohibition on new breakaway States. One has to work hard to adopt the destructive interpretation, and as we noted earlier, even that interpretation is not conspiracy-proof. The better conclusion, though by no means an unassailable one, is that new breakaway States are permitted with the appropriate consents, and that West Virginia (and Kentucky, Maine, and to the extent still in doubt, Vermont) are constitutional.
Robert Bastress, West Virginia constitutional law expert and WVU College of Law Professor, summarizes the interesting case of Virginia v. West Virginia, 78 U.S. 39 (1871), a case which arose from a boundary dispute when Virginia was attempting to reclaim two counties–Berkeley and Jefferson–from the clutches of its western neighbor. Virginia was ultimately unsuccessful in recovering the counties. Thus, while West Virginia's statehood issue has never been definitively settled by the U.S. Supreme Court, Bob Bastress writes that the Court “settled, for practical purposes, the statehood issue.”
Before coming to WVU for a visit as the John T. Copenhaver chair this year, I was only vaguely aware that there were questions regarding the constitutionality of the state's formation. With those issues seemingly settled, this semester's "West Virginia Weekend" series will highlight other constitutional matters and scholarship.
(with J. Zak Ritchie, WVU College of Law, Class of 2011).
Thursday, January 20, 2011
On November 2, 2010, three Iowa Supreme Court justices stood for retention and were not retained by the voters of Iowa. This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varnum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution.
Filling those vacancies under the state constitutional process is done by the State Judicial Nominating Commission which accepts applications and create a list of three nominees for each vacancy for the Governor's appointment. The Commission has 15 members, 7 of whom were appointed and 7 of whom were elected by members of the Iowa Bar, as well as the chair who is the Iowa Supreme Court justice “who is senior in length of service on said court, other than the chief justice."
The gravamen of the complaint is that the plaintiffs, who are not members of the Iowa Bar, are denied their Equal Protection rights and their voting rights because they are excluded from participating in the elections of the elective members of the Commission.
In a 35 page opinion Judge Pratt dismissed the Complaint. He stated:
At base, Plaintiffs are asking this Court to recognize an entirely new substantive Fourteenth Amendment right. The Court declines Plaintiffs’ invitation to do so. It not the business of the federal courts “to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.” See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973). That is especially true, where, as here, Plaintiffs have failed to provide adequate legal support for their asserted “right to equal participation.” The Court concludes that Plaintiffs do not have a right, let alone a fundamental right, to “equal participation” in the selection of state court judges—at least not as that “right” is conceptualized by Plaintiffs.
Interestingly, Pratt's language reverberates with the very accusations that were lodged against the unretained Iowa judges - - - creating new substantive rights and essentially being "activist." The complaint was filed on behalf of four Iowans by James Bopp, Jr.
Judge Pratt's opinion analyzes whether or not the members of the Commission are representative of any constituencies and concludes they are not. His conclusion is straightforward:
Undoubtedly, the right to vote for political representatives is the bedrock of American
democracy. In this case, however, Plaintiffs are asking the Court to radically expand the scope of this fundamental right beyond all existing precedent and to recognize an entirely new Fourteenth Amendment “right” to greater influence in the selection of judges. Their claims, therefore, are fatally flawed. Plaintiffs may prefer that Iowa had a different method of judicial selection, but absent a violation of a clearly-established constitutional right, the people of Iowa are entitled to retain the judicial selection system they chose in 1962.
According to the Iowa Judicial Nominating Commission, more than 60 candidates have filed applications (and supporting materials) for the 3 vacancies.
Relatedly, there have been proposals to impeach the remaining Justices who joined the unanimous opinion in Varnum v. Brien: Press Release from Iowa representative here; Des Moines Register reporting here; NYT editorial here.
Wednesday, January 19, 2011
The Supreme Court yesterday heard oral argument in General Dynamics Corp. v. United States and The Boeing Company v. United States, the consolidated cases arising out of a government contract gone bad and dealing with just a little corner of the state secrets privilege. We posted on the case here, when the Court agreed to hear it.
Oral argument yesterday did nothing to suggest that the Court intends to say anything about the privilege outside the singular circumstance that gave rise to this case.
And those circumstances are singular. The case arose out of a contract for production of the A-12 Avenger, a planned stealth aircraft. After years of half-starts and failed efforts--the reasons for which are disputed and probably don't matter much here--the Navy finally cancelled the program and terminated the contract for default. (Under federal contracting rules, a default termination means that the contractors have to pay the government back some of the funds already issued and used under the contract, here $1.35 billion.) The contractors sued in the Court of Federal Claims (under the Contract Disputes Act) asking that the court change the termination for default to a termination for convenience. (This would save the contractors from paying back the $1.35 billion and possibly entitle them to an additional $1.2 billion for other costs associated with the termination.) The contractors based their claim on the argument that the government had "superior knowledge"--here, knowledge of stealth technology that would have helped the contractors produce the A-12 (or would have let the contractors know that the plane was essentially unproduceable). The government asserted the state secrets privilege, arguing that the contractors couldn't litigate their "superior knowledge" claim without privileged evidence and that the case should be dismissed. The lower courts ruled in favor of the government.
The contractors argued to the Supreme Court that the government can't both bring a claim (the termination for default) and assert the state secrets privilege. Such a rule would stack the deck in favor of the government every time. But this wasn't just a due process and fairness argument; they relied on language in United States v. Reynolds (see pages 34 -36 of General Dynamics's merits brief):
Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum, where the Government is not the moving party, but is a defendant only on terms to which it has consented.
Reynolds, 345 U.S. at 12 (emphasis added). The contractors argued that this language means that the government can't both be a moving party and assert the state secrets privilege in civil litigation.
The oral argument turned mostly on this very narrow issue: Was the government the moving party here? And this question, in turn, turned on what was the status quo ante--the parties' situations before the courts got involved. Was the status quo ante no default (in which case the government might more properly be seen as the moving party--"moving" for a termination for default)? Or was the status quo ante default (in which case the contractors might more properly be seen as the moving party--moving to quash the termination for default)? (Remember that the government terminated the contract for default before the courts got involved. The default question went to the Court of Federal Claims under de novo review, however.)
The argument didn't help answer these questions much. The parties' arguments were predictable and didn't seem to give the Court anything to work with to help it sort the questions out. This wasn't for the Court's lack of trying: the Justices seemed to ask around these questions in any way they could. Even when Justice Ginsburg asked Carter Phillips on rebuttal whether there was a "middle way," Phillips only restated his position: go back to the status quo ante, which means before the termination for default. (Of course, the government argued that the status quo ante was termination for default. The arguments only restated the questions.) (Justice Scalia called this the "go away" principle--assume a world where the courts weren't involved, or went away.)
But there were some other concerns that came out. For example, Justice Breyer pressed the contractors on why their proposed rule wouldn't "not just throw a monkey wrench into the gears of government contracting . . . but throw the whole monkey." Justice Breyer was concerned that sophisticated government contractors like these should have foreseen these problems, including the government's state secrets assertion, and should have contracted around them (or avoided the contract altogether). Adopting their rule would allow contractors terminated for default always to win simply by asserting a "superior knowledge" claim and forcing the government to raise the state secrets privilege (because under their rule this would change the termination for default to a termination for convenience).
But there was a similar concern on the other side. Thus Justice Kagan asked Acting Solicitor General Neal Katyal whether the government could also assert the state secrets privilege in proving its default claim--a claim in which the government looks more like the movant--and not only on its defense to the contractors' "superior knowledge" claim. Answer: Yes. This prompted Justice Kagan to ask for clarification, "because that really does sound like a tails you win, heads you win." (Justice Scalia similarly observed: "and you are never the moving party.") Clarification was not satisfying: General Katyal simply argued that the contractors should have contracted around the problem--playing on Justice Breyer's concern.
The extreme results illustrated in these exchanges may have prompted Justice Ginsburg to ask for a "middle way" on rebuttal. But Phillips's answer only got us back where we started: What was the status quo ante?
Whatever happens in the case, the ruling is likely to be quite narrow--on the application of the state secrets privilege in a civil case where both sides look a little like a moving party.
A week after hearing oral argument on the petition for writ of mandamus to order an election for Governor, the state's highest court has granted the petition with respect to the Acting Governor, Earl Ray Tomblin (picured right).
In the 25 page opinion, the Justices
direct Respondent Tomblin, in fulfilling his role to act as governor during the current vacancy, to forthwith issue a proclamation fixing a time for a new statewide election for governor consistent with W. Va. Const., art. VII, § 16 and W. Va. Code § 3-10-2 (1967).
The court's syllabus provides its outline of the opinion:
1. “The provisions of the Constitution, the organic and fundamental law of the land, stand upon a higher plane than statutes, and they will as a rule be held mandatory in prescribing the exact and exclusive methods of performing the acts permitted or required.”
2. “Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed.”
3. “Courts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is merely to carry out the provisions of the plain language stated in the constitution.”
4. “Words used in a state constitution, as distinguished from any other written law, should be taken in their general and ordinary sense.”
5. “As used in constitutional provisions, the word ‘shall’ is generally used in the imperative or mandatory sense.”
6. “The American constitutional system, under which West Virginia’s government is organized, W. Va. Const. art. 1, § 1, changed substantially the operative theory of sovereignty and identified the sovereign, whose will legitimizes authority, as the people.
7. Pursuant to W. Va. Const., art. VII, § 16, the period of time in which the duties of the governor shall be performed by a person who was not elected to the office of governor by the people in a statewide election shall not exceed one year.
8. Pursuant to W. Va. Const., art. VII, §16, whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new statewide election shall be held as soon as practicable and in compliance with the constitutional prescription that the office be assumed by an elected successor within one year of the date when the vacancy occurred.
9. The procedure established in the second paragraph of W. Va. Code § 3-10-2 regarding the holding of a new or special election to fill the vacancy in the office of governor is within the legislative prerogative and does not violate the State Constitution.
10. The Legislature may amend the procedure for providing for a new or special election if it deems it appropriate to do so; provided, however, any new procedure may not conflict with the Constitution which requires that all acts necessary to elect a governor shall be completed within one year of the vacancy in the office.
The West Virginia Supreme Court of Appeals' unanimous opinion was authored by Justice Brent Benjamin. Benjamin, of course, was the justice at the center of the controversy in Caperton v. Massey Coal Company, in which the United States Supreme Court decided that due process required Justice Benjamin to recuse himself from the appeal of the $50 million jury verdict although the CEO of the lead defendant had spent $3 million dollars (about 60% of the total contributions) supporting Benjamin's campaign for a seat on the WV court.
Tuesday, January 18, 2011
Recall: Judge Hudson ruled last month that the individual health insurance mandate in the federal health care reform legislation exceeded Congress's Commerce Clause authority because it required a positive act (and didn't merely prohibit action)--a popular position among those who argue against the mandate's constitutionality.
But Yung points out that Judge Hudson ruled just over a year earlier that a different federal requirement to act was well within Commerce Clause authority. That case, U.S. v. Dean, involved the federal Sex Offender Registration and Notification Act (SORNA) and its requirement that sex offenders registered with the comprehensive national registration system that SORNA created--whether or not they cross state lines. Yung:
In the case of health care reform, opponents have argued that Congress' power extends only to "activities" and that the so-called "mandate" actually punishes people for "inactivity"--failing to purchase health insurance. In the case of sex-offender registration, a similar "inactivity" is being regulated: failing to register with the government. Like Hudson, every federal appellate court that has reviewed the federal sex-offender-registration law has found it to be within Congress' powers.
Despite the similarities between the statutes, the more recent opinion by Hudson is radically different from when he reviewed the federal sex-offender-registration statute. In his opinion regarding the health care law, Judge Hudson wrote that in order to "survive a constitutional challenge, the subject matter must be economic in nature . . . and it must involve activity."
That clear statement of law simply cannot be reconciled with his prior opinion because a failure to register as a sex offender is neither economic nor activity.
Judge Hudson wrote this in Dean:
When evaluating the impact of an activity on interstate commerce, the [Fourth Circuit] commented that "the question is not simply whether one particular offense has a measurable impact upon interstate commerce, but whether the relevant class of acts has such an impact." With this principle in mind, the Fourth Circuit concluded that "even though the comprehensive federal registration system created by SORNA may implicate a sex offender who does not cross state lines, the potential for recidivism and flight across state lines of all sex offenders is sufficiently real and substantial to be taken as a serious and extensive part of the larger interstate problem, justifying the comprehensive regulation. The court found further support for its conclusion in the fact that Congress's regulatory scheme would be severely hampered unless all sex offenders were required to register.
As a result of the Fourth Circuit's analysis . . . this Court finds that the registration requirements detailed in [SORNA] are valid under the Commerce Clause. . . .
Dean, 670 F. Supp. 457, 460 (citations omitted, emphasis in original). (Judge Hudson's refers to the Fourth Circuit case of U.S. v. Gould, which upheld the federal criminal penalty for sex offenders who travel across state lines and fail to register, but which did not directly opine on the federal regulation to register in the first place. Again: this regulation applies whether or not a sex offender crosses state lines.)
Judge Hudson's analysis above seems to apply with even greater force to the individual mandate.
But more: Judge Hudson went on to write that the Necessary and Proper Clause provided additional support for this conclusion. And notably he cited no Fourth Circuit case for this part of his opinion, suggesting that he wasn't merely and begrudgingly following the Fourth Circuit's reasoning in Gould but (if there were any doubt) also using his own judgment, thus underscoring the inconsistency with his more recent health reform ruling.
Monday, January 17, 2011