Friday, January 7, 2011

Challenge to Foreign National Campaign Contributions To Go Forward

Judge Ricardo Urbina (D.D.C.) today granted an application by two foreign nationals, plaintiffs in Bluman v. FEC, for a three-judge panel under the Bipartisan Campaign Reform Act of 2002 (BCRA) to challenge the Act's restriction on campaign contributions and expenditures by foreign nationals.

Section 303 of the BCRA makes it unlawful for a foreign national to make

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication[.]

2 U.S.C. Sec. 441e(a)(1).  The provision replaces the former, similar ban in the Federal Election Campaign Act (FECA).

Under the BCRA, a constitutional challenge against any section of the BCRA must go before a three-judge court.  That's just what plaintiffs applied for here.

But the FEC balked, arguing under McConnell v. FEC that a three-judge panel lacks authority to hear a constitutional challenge to Section 303 of the BCRA, because the activities it prohibits were already illegal under FECA.  (The FEC thus effectively challenged standing: plaintiffs lacked standing, they claimed, because any ruling by the three-judge panel that Section 303 was unconstitutional wouldn't redress their harm.  After all, they claimed, even if Section 303 were unconstitutional, FECA previously prohibited the same activity.  The ruling would only affect Section 303, not FECA, and the activity would therefore still be prohibited under FECA.  (FECA requires constitutional challenges to go before an en banc circuit court.))

Judge Urbina rejected the argument.  He ruled that Section 303 of the BCRA replaced the similar prohibition in the FECA, and therefore a ruling that Section 303 was unconstitutional would redress the plaintiffs' harms.  "Unlike McConnell, if a three-judge court were to strike down Section 303 as unconstitutional, then no other law (or at least none which the defendant has identified) would prohibit the plaintiffs from engaging in their desired conduct."  Op. at 5.

(Judge Urbina rejected the plaintiffs' request for a three-judge panel for their challenge to the FEC regulations implementing Section 303.  The BCRA authorizes the three-judge panel for constitutional challenges to the BCRA.  But here the regs are different than the BCRA.)

The ruling allows the plaintiffs' case challenging Section 303 to move forward before a three-judge panel of the district court. 


January 7, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, January 6, 2011

Reading of the Constitution in the U.S. House of Representatives

Just in case you missed it today:



January 6, 2011 in News | Permalink | Comments (0) | TrackBack (0)

State Lawmakers Take on Birthright Citizenship

A group of state lawmakers yesterday announced a coordinated multi-state initiative to tee up the Fourteenth Amendment Citizenship Clause for judicial review.  The NYT reports here; LAT here; NLJ here.

The Citizenship Clause in Section 1 of the Fourteenth Amendment (1868) reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The lawmakers, along with a group called State Legislators for Legal Immigration, proposed a model bill that would zero in on the phrase "subject to the jurisdiction thereof" in defining state citizenship.  They say that phrase means that at least one parent of a child born within the United States must owe no allegiance to any foreign sovereignty--that is, that they must be a U.S. citizen or national, a permanent "legal" immigrant, or a person without citizenship in another country, or that the child has no citizenship or nationality in another country.  (Model language is here.)

Proponents hope that the model statute would draw a judicial challenge, thus presenting the phrase for review by the courts, ultimately the Supreme Court.

They seem pretty confident in their interpretation, but there's good evidence against them.  Start with the congressional debates over the Fourteenth Amendment--a debate eerily similar to that today.  The debate in the 39th Congress focused on Chinese immigrants in California and Gypsies in Pennsylvania (among other groups), with opponents of birthright citizenship claiming that Chinese and Gypsies would take over those states.  Opponents of birthright citizenship in the Amendment (obviously) lost that debate in the 39th Congress.

Even before the Fourteenth Amendment--and before the Constitution had anything to say about birthright citizenship--the New York Court of Chancery ruled in Lynch v. Clarke in 1844 that a child of "alien parents, during their temporary sojourn in [New York]," was a citizen.  The court ruled that citizenship was a national, not state, responsibility; and the U.S. Constitution being silent on the matter, the common law rule that a child born "within the king's allegiance, became subjects, whatever were the situation of their parents" governed.  Thus: "It is therefore the law of the United States, that children born here, are citizens, without any regard to the political condition or allegiance of their parents."  (The Supreme Court seemed to assume, but did not squarely rule, in 1804 in Murray v. The Charming Betsy that those born within the United States were citizens.) The Citizenship Clause of the Fourteenth Amendment would seem only to affirm and constitutionalize (not qualify or reverse) this holding.

Post-Fourteenth Amendment, the Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that a child born to Chinese aliens was a U.S. citizen under the Citizenship Clause.  The parents were "subjects of the Emperor of China," but "domiciled residents of the United States."  After an exhaustive review of birthright citizenship, the Court wrote,

the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.  [Ed: The Court carved out this exception in Elk v. Wilkins (1884), based upon the unique place that Native Americans had in the Constitution.]  The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.  Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.  His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains wtihin our territory, is yet . . . "strong enough to make a natural subject . . . ."

Opponents of birthright citizenship distinguish and criticize Wong Kim Ark.  (Check out this 2006 piece at the Heritage Foundation for a flavor.)

For an excellent overview, putting this all in a larger context, but focusing on congressional legislation and proposed constitutional amendments from the 111th Congress, check out this Congressional Research Service report, Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents.


January 6, 2011 in Courts and Judging, Federalism, Fourteenth Amendment, Fundamental Rights, News, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 4, 2011

Do Prop 8 Proponents Have Standing to Appeal?

A three-judge panel of the Ninth Circuit today asked the California Supreme Court whether proponents of Proposition 8, the same-sex marraige ban, have standing to appeal the district court's ruling that Prop 8 is unconstitutional.  (The panel also upheld the district court's denial of a motion to intervene in the case by a County, its Board, and its Deputy Clerk.  We covered that ruling here.)

Plaintiffs in the case did not originally include Prop 8 proponents as defendants.  But the district court permitted them to intervene and file an answer.  The district court then ruled that Prop 8 was unconstitutional and enjoined its enforcement by the named defendants.  The proponents appealed, but the named defendants did not.  The Ninth Circuit asked the parties to brief the question whether proponents had standing to appeal, and, after briefing, now ask the California Supreme Court whether California law confers standing to appeal upon proponents of a proposition.  Here's the certified question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Op. at 2.

The Ninth Circuit is understandably gun shy on the question: they've false-started before.  The prior case involved Arizona's "English only" constitutional amendment (by ballot initiative).  As in this case, the district court in that case ruled the amendment unconstitutional, and state officials declined to appeal.  Supporters of the measure appealed, however, and the Ninth Circuit ruled that they had standing.  The Supreme Court in Arizonans for Official English v. Arizona "expressed grave doubts whether [ballot initiative supporters] have standing under Article III to pursue appellate review," but vacated on other grounds. 

Back to the Prop 8 case, the Ninth Circuit wrote in its certification to the California Supreme Court,

Having been granted intervention in the district court is not enough to establish standing to appeal; "an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III." . . .  States, however, "ha[ve] the power to create new interests, the invasion of which may confer standing."

Op. at 7-8 (quoting Diamond v. Charles). 

Thus ruling under Arizonans for Official English and Diamond v. Charles that the proponents' Article III interest could be established under state law--but also finding no definitive state authority that said proponents possessed a particularized interest--the Ninth Circuit certified the question to the California Supreme Court.

If proponents don't have a state-law interest (and therefore lack standing to appeal), the Ninth Circuit may lack jurisdiction to hear the case.  The district court ruled Prop 8 unconstitutional, and nobody with standing has yet come forward to appeal.  The Ninth Circuit stayed the district court injunction, and the parties predictably disagree about the legal status of Prop 8 if the Ninth Circuit ultimately has no jurisdiction to hear the appeal.


January 4, 2011 in Cases and Case Materials, Courts and Judging, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

County, Board, Deputy Clerk Lack Standing to Intervene in Prop 8 Appeal

A three-judge panel of the Ninth Circuit ruled today that the County of Imperial, its Board of Supervisors, and a Deputy Clerk for the County lacked standing to appeal on the merits the district court order holding Proposition 8, the same-sex marriage ban, to be unconstitutional.  We most recently posted on the case here; our post on the district court ruling is here

The ruling leaves open whether the Ninth Circuit can hear the appeal on the merits: It's not clear that there is anyone with standing who will defend Prop. 8 on appeal.  (The Ninth Circuit panel asked the California Supreme Court in a separate Order Certifying a Question whether Prop. 8 proponents have standing to appeal.  We'll cover that in a separate post.)

The panel ruled today that the County, Board, and Deputy Clerk did not satisfy the standards for intervention as of right or permissive intervention.

As to intervention as of right under Federal Rule of Civil Procedure 24(a)(2) (requiring a district court to permit intervention for anyone who, among other things, "claims an interest relating to the property or transaction that is the subject of the action"), the court ruled that none had a "significant protectable interest" at stake.  The Deputy Clerk had no interest, because she did not have the powers and duties of the Clerk's office.  (Those belonged to the Clerk, not the Deputy Clerk.)  Her claimed interest in the case, its effect on the Clerk's performance of her legal duties, was therefore not the Deputy Clerk's interest; it was the Clerk's interest.  The Board had no interest, because it "plays no role with regard to marriage."  Op. at 10.  (Marriage is a state concern, not a "municipal affair."  Id.)  The County's "direct financial interest" was waived, Op. at 11, because the County failed to raise it at the district court.

As to permissive intervention under Federal Rule of Civil Procedure 24(b)(1)(B) (permitting, but not requiring, a district court to grant intervention by a litigant who has "a claim or defense that shares with the main action a common question of law or fact"), the Ninth Circuit deferred to the district court's judgment denying intervention.  The Ninth Circuit ruled that the County, the Board, and the Deputy Clerk would introduce no new evidence or arguments into the case, and that their "only expressed interest in the case--ensuring appellate review of the constitutional claims--was one that they could not fulfill because they would lack standing to appeal [the district court's judgment]."  Op. at 13.  (The court ruled that the movants' particular interest here would require them to have Article III standing to appeal the merits of the constitutional holding below.  That they did not have: the court ruled on intervention as of right that they lacked any significant protectable interest; and they therefore lacked Article III standing.)

Judge Reinhardt issued a separate concurrence, explaining the significance of the ruling and putting it in a larger context.  Judge Reinhardt concurrence is well worth a read for its plain-spoken explanation of the court's ruling today.  He also takes issue with the trend toward technicalization and proceduralism of federal litigation (with the resulting limits on access to the federal courts) and the way the plaintiffs litigated the case.  (He argues that the plaintiffs could have avoided the whole standing mess by suing a broader set of defendants.)  He also questions why the movants couldn't find a Clerk, not a Deputy Clerk, to move to intervene; the result may have been different.

(Judge Reinhardt also issued his more lengthy explanation of why he declined to recuse himself.  Recall that Prop. 8 proponent moved for recusal based on Judge Reinhardt's spouse's views and positions as ED of the ACLU/SC.  Judge Reinhardt explained that his "wife's views, public or private, as to any issue that may come before this court, constitutional or otherwise, are of no consequence.  She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa).  I share that view . . . ."  Op. at 3.)


January 4, 2011 in Cases and Case Materials, Courts and Judging, Equal Protection, Fourteenth Amendment, Fundamental Rights, Gender, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Standing | Permalink | Comments (0) | TrackBack (0)

Filibuster Reform

As the 112th Congress prepares to convene tomorrow, there's talk once again of filibuster reform in the Senate. 

In recent practice, the Senate rules allow a single Senator to force a 60-vote majority to end debate on any matter.  Senate Rule XXII reads:

at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer . . . shall . . . submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?"  And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative votes shall be two-thirds of the Senators present and voting--then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Democrats argue that Republicans have abused the rule and held up all manner of Senate business, without transparency and without cost to the objecting Senator.  Indeed, filibusters have skyrocketed in the last two Congresses, at least temporarily stopping Senate action on the matter at issue and slowing Senate action on all other business.  Professor Josh Chavetz (Cornell) in his recently posted piece, The Unconstitutionality of the Filibuster, goes so far as to argue that the practice--allowing a single Senator to force a 60-vote majority to end debate on anything--violates the structure of the Constitution.

Senator Jeff Merkley gave a sense of reform proposals on the table in his November 16 Thoughts on the Reform of Senate Procedures.  Senator Merkley's sensible and practical Thoughts retain the filibuster, but limit its use, require transparency in its use, and impose costs (in time and effort) on those who filibuster. 

The problem is that Senate Rule XXII itself requires a two-thirds majority vote to change the Senate rules (including the cloture rule).  (The late Senator Kennedy called this double-bind to the cloture rule a "Catch-XXII.")

The work-around is simple, though, and widely accepted.  As we explained here, the "constitutional option" would allow a change to Senate rules on the first day of a new Session.  Here's how it works.  Article I, Section 5 of the Constitution allows each House to determine its own rules (by a simple majority).  (Senate Rule V, which says that the Senate rules--including Rule XXII--"shall continue from one Congress to the next Congress unless they are changed as provided in these rules" (and thus taking us back to where we started) itself violates Article I, Section 5 in that it binds the new Senate to old rules and prevents the new Senate from determining its own rules.)  Thus at the beginning of each Congress--before the Senate has had a change to (re)enact its rules--general parliamentary law, including the simple majority rule, applies.  Under general parliamentary law, the new Senate can enact its own new rules by a simple majority.



January 4, 2011 in Congressional Authority, News | Permalink | Comments (1) | TrackBack (0)

Monday, January 3, 2011

White House Reaction to Congressional Limits on G-mo Closing

ProPublica's Dafna Linzer wrote today on the Huffington Post that the Obama administration is considering how to react to congressional limits on transferring Guantanamo detainees to the United States (even for Article III trials) and on closing the detention facility.  We posted on the limits here.

Among the options under consideration: a signing statement registering the administration's opinion that those restrictions are unconstitutional.

The Obama administration early on signalled its aversion to signing statements (but then issued its first signing statement just days later).

Congressional restrictions on transferring detainees and closing the facility seem to call out for a constitutional objection by the White House.  The only question is this:  Is a signing statement appropriate here (or ever)? 

Under the administration's standards, it probably is.  President Obama issued a memo early in his presidency that he would "act with caution and restraint, based only on interpretations of the Constitution that are well-founded."  Congressional restrictions here intrude into areas reserved to the executive (prosecuting the law) and violate separation of powers, satisfying this standard.


January 3, 2011 in Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)