April 16, 2011
President Obama's Signing Statement on Spending Bill
President Obama issued a signing statement yesterday on H.R. 1473, the FY 2011 budget bill recently negotiated between the White House and Congress that avoided a shut-down and will keep government operating through the fiscal year.
President Obama took issue with two provisions in the bill: the restriction on use of funds to transfer Guantanamo detainees to the U.S. (thus preventing trials in Article III tribunals); and the restriction on use of funds to pay salaries of presidential advisors, the so-called "czars."
The former restriction isn't new, and the administration previously registered its constitutional objections to the restriction. In short, the administration says (correctly) that Congress can't interfere with its ability to execute the law by trying detainees for violation of U.S. law in regular U.S. courts. President Obama's statement yesterday reiterates the core objection to the restriction on transfers and says that the administration will work to change it (while respecting it in the meantime).
The latter restriction--the restriction on use of funds to pay for presidential advisors--is new. Section 2262 of the bill reads as follows:
None of the funds made available by this division may be used to pay the salaries and expenses of the following positions:
(1) Director, White House Office of Health Reform.
(2) Assistant to the President for Energy and Climate Change.
(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.
(4) White House Director of Urban Affairs.
The restriction raises serious separation-of-powers concerns. On the one hand, opponents claim that these positions are "officers" that require Senate advice and consent (confirmation) under the Appointments Clause. Without Senate confirmation, appointments to these positions are unconstitutional. On the other hand, many argue that these positions are merely presidential advisors that do not require Senate confirmation, and that congressional restrictions on the President's authority to make these appointments violates core Article II functions. In between these two poles: The positions may be "inferior officers," and then the debate is whether Congress has properly vested authority to appoint them under the Appointments Clause.
We explored these questions with regard to the so-called "Pay Czar" here, here, here, and here (this last post linking to the Federalist Society on-line debate in which I joined Martin Flaherty and Michael McConnell).
President Obama's signing statement raises and explains his constitutional objections in some detail, consistent with his commitment to issue such statements only sparingly, and to explain them well when he does it. He also points out that his statements on this legislation are necessary because of the nature of the bill: It had to get his signature on Friday to keep the government in business. A veto would have shut the government down until the White House and Congress could have worked these issues out. (President Obama has used constitutional signing statements much less frequently, and much less aggressively, than his predecessor. But he's still used them.)
The Bill's urgency and the President's transparency don't mitigate the core separation-of-powers problem in constitutional signing statements themselves. When the President signs legislation, but declines to abide by pieces of it on constitutional grounds, that looks an awful lot like a line-item veto. If so, the signing statement itself runs up against the constitutional requirements for bicameralism and presentment--that the same piece of legislation has to pass both houses and receive the President's signature--no matter how necessary or well explained it is.
Footnote of the Day: Plurality Footnote on Habeas for State Prisoners
Article I, section 9, of the United States Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." However, Congress has often restricted habeas corpus, especially for state prisoners. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, (AEDPA), placing a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners. In 28 U.S.C. § 2254(d)(1) Congress prohibited a federal court from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.''
In Williams v. Taylor, 529 U.S. 362 (2000), the Court considered an ineffective assistance of counsel claim under Strickland v. Washington in the penalty phase of a capital case tried in Virginia. The trial court granted the state post-conviction relief, the state Supreme Court reversed, and in subsequent federal habeas proceeding, the district judge granted habeas relief and the Fourth Circuit reversed.
With such a history, it is perhaps no surprise that the United States Supreme Court opinions were fractured. Justice Stevens delivered the Opinion for the Court, except for Part II of his Opinion.
Justice O'Connor delivered the Opinion of the Court in Part II, except for "the footnote," with which Justice Scalia disagreed. The cause of the disagreement between Justices Scalia and O'Connor seems a bit anticlimactic:
The legislative history of § 2254(d)(1) also supports this interpretation. See, e.g., 142 Cong. Rec. 7799 (1996) (remarks of Sen. Specter) (``[U]nder the bill deference will be owed to State courts' decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court's decision applying the law to the facts will be upheld''); 141 Cong. Rec. 14666 (1995) (remarks of Sen. Hatch) (``[W]e allow a Federal court to overturn a State court decision only if it is contrary to clearly established Federal law or if it involves an `unreasonable application' of clearly established Federal law to the facts'').
The "interpretation" being supported is "Indeed, we used the almost identical phrase ``application of law'' to describe a state court's application of law to fact in the certiorari question we posed to the parties in Wright [v. West, 505 U.S. 277(1992)]."*
While this may not seem worthy of a disagreement, this is not the first time Justices Scalia and O'Connor could not reach an accord over a footnote. In the next segment of "footnote of the day," April 17, a more substantive disagreement between the Justices.
April 15, 2011
Voting Restricted to Males for Leadership in Religious Council that Receives State Funding: Constitutional?
Religious communities? Gender? Voting rights? State action?
A host of constitutional law problems are raised by the following:
According to the bylaws of the Crown Heights Jewish Community Council, a social service agency and community pillar that has received millions of dollars in government grants over the years, only those who meet the following requirements can vote for its leadership:
- Jewish and religiously observant residents of Crown Heights
- Married, previously married or at least 30 years old
Now Eliyahu Federman, a Crown Heights resident and recent law school graduate [of CUNY School of Law], is challenging that last requirement, saying he believes it to be unconstitutional.
The rest of today's NYT story is here.
For ConLawProfs still looking for a challenging exam question, this might be a good place to start.
RR [image: Suffrage Parade in New York City, 1912, via]
Footnote of the Day: Taxes and Numbers
Tax day, usually April 15 but this year with a filing extension until Monday, remains a suitable day to appreciate numeracy and try to maintain a sense of humor. The law review article, The Law of Prime Numbers, 68 NYU Law Review 185 (1993), authored by 19 authors, attempts to do both.
Slight on text, the article's footnotes are appreciations of individual prime numbers. Footnote “l” of the article highlights the prime number “37” with a discussion of a famous tax footnote, a more loosely linked interpretative question, and an even more tangentially related, but exceedingly important, constitutional criminal procedure case:
37 was the footnote number in Crane v. Commissioner, 331 U.S. 1, 14 (1947), in which the Supreme Court set forth a proposition that would bedevil tax practitioners and scholars for decades. In what has come to be acknowledged as the most famous footnote in tax history, see Boris I. Bittker, Tax Shelters, Nonrecourse Debt and the Crane Case, 33 Tax L.Rev. 277 (1978), the Court suggested that the inclusion in income occurring on the relief of a liability for which the taxpayer had no personal liability should be limited to the fair market value of the property securing the debt, rather than the full amount of the debt. It was not until the Court revisited the issue in 1983, in Commissioner v. Tufts, 461 U.S. 300, 307 (1983), that footnote 37 was repudiated, laying the issue to rest (we think). In the intervening period, however, much effort was consumed in the pursuit of the true meaning of this cryptic footnote. See, e.g., Christian C. Day, Commissioner v. Tufts: The Fall of Footnote 37; The Confirmation of the Functional Relationship, 45 U.Pitt.L.Rev. 803, 804 n. 3 (1984) (“If footnote 37 did not launch a thousand ships, it certainly killed more than its share of trees in its day and still continues to do so.”).
37 dollars was the price per 100 pounds of chicken established in the contract at the heart of Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F.Supp. 116, 117 (S.D.N.Y.1960). A dispute arose between the buyer (plaintiff) and seller (defendant) as to whether the chickens that were delivered met the specifications of the contract. Judge Friendly faced the difficult hermeneutical issue of just what, exactly, is a “chicken”:
Plaintiff says “chicken” means a young chicken, suitable for broiling and frying. Defendant says “chicken” means any bird of that genus that meets contract specifications on weight and quality, including what it calls “stewing chicken” and plaintiff pejoratively terms “fowl.” Dictionaries give both meanings, as well as some others not relevant here. To support it, plaintiff sends a number of volleys over the net; defendant essays to return them and adds a few serves of its own. Assuming that both parties were acting in good faith, the case nicely illustrates Holmes' remark “that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not on the parties' having meant the same thing but on their having said the same thing.” I have concluded that plaintiff has not sustained its burden of persuasion that the contract used “chicken” in the narrower sense.
Id. (citation omitted). Upon learning of the court's decision, the plaintiff undoubtedly clucked “FOWL.”
37 was the age of the detective who arrested Clarence Earl Gideon when he testified at Gideon's retrial. Gideon had secured a retrial by successfully arguing to the U.S. Supreme Court that, as an indigent, he had a constitutional right to representation by counsel. See Anthony Lewis, Gideon's Trumpet 233 (1966). In Gideon v. Wainwright, 372 U.S. 335, 345 (1963), the Warren Court established the right of indigent defendants to the appointment of counsel in both federal and state prosecutions. The Court generously referred to members of the legal profession in this instance as “necessities, not luxuries.” Id. at 344.
[image: Arabic numerals via]
April 14, 2011
The President's Authority to use Military Force in Libya
The Office of Legal Counsel last week released a memorandum advising that the President has constitutional authority to authorize military operations in Libya. (This obviously isn't a surprise, but it may be worth a look.)
The memo, dated April 1 but released last week, first analyzes the President's constitutional authority to direct the use of military force in Libya and then analyzes whether congressional approval was constitutionally required.
As to the first question, the OLC concluded that the President's authority to direct military force in Libya derived from his Article II authorities as commander in chief and chief executive, his constitutional authority over foreign affairs, and the President's historical exercise of authority without prior congressional approval. The OLC wrote that Congress recognized this authority in the War Powers Resolution (even if the WPR doesn't provide affirmative statutory authority for military operations), which provides for short-term use of force by the President without prior congressional approval.
The OLC wrote that the President could exercise this authority in order to protect sufficiently important national interests. Here, those interests were preserving regional stability and supporting the credibility of the United Nations Security Council (through its Resolution 1973, which imposed a no-fly zone and authorized the use of military force to protect civilians).
As to the second question--congressional power to declare war, the "one possible constitutionally-based limit on this presidential authority to employ military force in defense of important national interests," op. at 8--the OLC concluded that the military commitment here did not amount to a "war" for the purpose of the Declaration of War Clause. It noted that President Obama's commitment of force was limited to airstrikes and associated support missions, with no ground troops, and that the "limited mission" did not "aim at the conquest or occupation of territory." (Quoting Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. OLC at 333.)
Seventh Circuit Rules No Standing to Challenge Presidential National Day of Prayer Proclamation
In a succinct Opinion authored by Chief Judge Easterbrook in Freedom From Religion Foundation v. Obama, the Seventh Circuit has held that the organization does not have standing to challenge the Presidential Proclamation of a National Day of Prayer. The Opinion's appendix notably includes Obama's Proclamation as Appendix B and a Proclamation by George Washington as Appendix A.
As we discussed, last year District Judge Barbara Crabb declared the proclamation of a national day of prayer unconstitutional: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."
Reversing the lower court, the Seventh Circuit did not find sufficient injury to confer standing:
Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles. It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome. Here again is the proclamation’s only sentence that explicitly requests citizens to pray: “I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, grace, and protection as we meet the challenges before us.” But let us suppose that plaintiffs nonetheless feel slighted. Still, hurt feelings differ from legal injury. The “value interests of concerned bystanders” (United States v. SCRAP, 412 U.S. 669, 687 (1973)) do not support standing to sue.
Further, the Seventh Circuit noted:
If this means that no one has standing, that does not change the outcome.
Judge Williams wrote separately to concur but express some concerns with the "majority's reasoning and the uncertainty of the Supreme Court's precedent." Specifically, Judge Williams rejects the majority's reliance on Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), a challenge to the "under God" phrase in the Pledge of Allegiance, by a noncustodial father. As Williams notes, it was Newdow's custodial status and not the "feelings of exclusion" that foreclosed Newdow's standing. Additionally, Williams contends:
The Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases. As the Ninth Circuit recently noted, the Court has
decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government, including cases involving a creche in a county courthouse, a creche in a public park, the Ten Commandments displayed on the grounds of a state capitol, the Ten Commandments displayed at a courthouse, a cross displayed in a national park, prayer in a football game, school prayer, a moment of silence at school, Bible reading at a public school, and a religious invocation at graduation. [citation omitted]. In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs. “To ignore the import of those cases for the standing analysis, one would have to believe the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial cases unnecessarily and inappropriately.
Judge Williams continues by noting that "as recently as last week, the Court stated in Arizona Christian School Tuition Organization v. Winn that even though it had decided a number of Establishment Clause cases on the merits that appeared to be in tension with its decision to find no standing in the case before it, those cases were not dispositive because they did not address the threshold standing question."
In Hein v. Freedom from Religion Foundation decided in 2007 by the Supreme Court, the organization was similarly denied standing in its suit against faith-based funding.
[image: Old Woman in Prayer by Nicholas Maes circa 1656 via]
CFP: Race and Criminal Justice in the West
RACE AND CRIMINAL JUSTICE IN THE WEST
Gonzaga University School of Law
Friday-Saturday, September 23-24, 2011
Gonzaga University School of Law
The Task Force on Race and the Criminal Justice System
deadline for submission of proposals June 6, 2011
From the conference organizers: "This conference seeks to examine the topic of race and the criminal justice system in the Western states. Racial minorities continue to be overrepresented in our criminal justice system; yet too often concerns about the high arrest and incarceration rates are dismissed as simply the result of a high rate of criminality. This conference will explore the role of bias, both conscious and unconscious, to ask whether race still matters in our criminal justice system. While the emphasis will be on the West, we welcome papers and presentations focusing on other areas of the country, particularly ones that engage in comparative analyses."
Proposals must contain the following information:
Name, Address, Phone, and e-mail
Title of Presentation and whether the paper will be submitted for publication
A statement of up to 300 words explaining topic
The organizers welcome suggestions for full or partial panels. The deadline for submission of proposals is June 6, 2011. Please submit proposals via e-mail to Professor Jason Gillmer of Gonzaga Law. Those submitting can expect to receive a response by July 1, 2011. Final drafts of papers will be due October 24, 2011. Publication decisions for papers will be made by the Gonzaga Law Review.
Footnote of the Day: Baseball Poem
In acknowledgement of both baseball season and poem in your pocket day, Justice Harry Blackmun provides a pair of suitable footnotes.
Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:
I knew a cove who'd never heard of Washington and Lee,
Of Caesar and Napoleon from the ancient jamboree,
But, bli'me, there are queerer things than anything like that,
For here's a cove who never heard of ‘Casey at the Bat’!
‘Ten million never heard of Keats, or Shelley, Burns or Poe;
But they know ‘the air was shattered by the force of Casey's blow’;
They never heard of Shakespeare, nor of Dickens, like as not,
But they know the somber drama from old Mudville's haunted lot.
‘He never heard of Casey! Am I dreaming? Is it true?
Is fame but windblown ashes when the summer day is through?
Does greatness fade so quickly and is grandeur doomed to die
That bloomed in early morning, ere the dusk rides down the sky
‘He Never Heard of Casey’ Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.
‘These are the saddest of possible words,
‘Tinker to Evers to Chance.’
Trio of bear cubs, and fleeter than birds,
‘Tinker to Evers to Chance.’
Ruthlessly pricking our gonfalon bubble,
Making a Giant hit into a double-
Words that are weighty with nothing but trouble:
‘Tinker to Evers to Chance.“
Franklin Pierce Adams, Baseball's Sad Lexicon.
The case is Flood v. Kuhn, 407 U.S. 258, 296 (1972), the baseball antitrust case, in which Justice Blackmun quotes the poems in his footnotes to capture America’s fondness for baseball. Later in the opinion which included more about the history of baseball, Blackmun wrote: ""In view of all this," it was appropriate to say that "professional baseball is a business and engaged in interstate commerce," although it is an "exception and an anomaly" and thus exempt from anti-trust laws, even as "football, boxing, basketball, and, presumably, hockey and golf are not so exempt."
There are footnotes for "hockey" and "golf" but they contain case citations, not poems.
with J. Zak Ritchie
[image: statute of Casey at the Bat, via]
April 13, 2011
Senate Judiciary Hearing on Fair Elections Now Act
The Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights yesterday held a hearing titled, "The Fair Elections Now Act: A Comprehensive Response to Citizens United."
The Subcommittee considered S. 750, the Fair Elections Now Act, which creates a public financing system for congressional elections. The system would encourage campaigns based on small donations (under $100) from in-state contributors: candidates would need a certain number of such donations to qualify for public financing; and the system would match small donations up to five times the donation. The Act would also cap the rates for television ads for participating candidates at 80 percent of the lowest charge during periods before the election and provide advertising vouchers for participating candidates.
According to Monica Youn of the Brennan Center, who testified yesterday, participants in public financing systems can compete in a post-Citizens United world, provided that the system offers candidates sufficient funds:
But the experiences of jurisdictions with public financing demonstrates that, as long as such systems offer candidates sufficient funds to run viable campaigns, publicly financed candidates can run competitive and successful races even in the face of high levels of hostile independent spending.
Under the Fair Elections Now Act, participating Senate candidates would get $1.25 million, plus another $250,000 per congressional district in their state, split 40 percent for the primary and 60 percent for the general. But they would also qualify for matching funds at five times the contribution for each contribution of $100 or less from in-state contributors, up to three times the initial allocation for the primary, and again for the general. And they would benefit from the television ad cap plus vouchers (worth $100,000 for each congressional district in their state).
The Brookings Institution estimates that the average cost of a Senate seat in 2008 was $7,500,052.
CFP: Constitutional Law Colloquium at Loyola Chicago
Conference Announcement and Call for Papers
The Loyola Second Annual Constitutional Law Colloquium
October 21 & 22, 2011
The submission deadline for abstracts is May 31, 2011.
Loyola University Chicago School of Law is organizing the Second Annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, October 21 and end midday on Saturday, October 22, 2011.
This is the second annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. We hope to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.
The organizers invite abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics. Again, the submission deadline for abstracts is May 31, 2011.
Topics, abstracts, papers, questions, and comments should be submitted to: Program Administrator Carrie Bird, email@example.com.
Note from the organizers: "Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night. There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago’s Magnificent Mile."
Footnote of the Day: Bill of Rights Provisions Incorporated Against the States
In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause?
The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.
As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12:
With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).
With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).
With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).
With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).
With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).
In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:
the Sixth Amendment right to a unanimous jury verdict;
the Third Amendment’s protection against quartering of soldiers;
the Fifth Amendment’s grand jury indictment requirement;
the Seventh Amendment right to a jury trial in civil cases;
the Eighth Amendment’s prohibition on excessive fines
In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.
April 13, 2011 in Cases and Case Materials, Due Process (Substantive), Establishment Clause, Federalism, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Games, History, Interpretation, Second Amendment, Sixth Amendment | Permalink | Comments (0) | TrackBack
April 12, 2011
Eleventh Circuit En Banc Upholds Orlando Ordinance Prohibition of Feeding in Public Parks
The en banc Eleventh Circuit has agreed with the panel that an Orlando, Florida ordinance prohibiting the provision of food to large groups is constitutional. The panel opinion, which we discussed here, reversed the district judge, over a vigorous dissent by Judge Rosemary Barkett.
The en banc Eleventh Circuit's relatively brief (15 page) opinion - - - joined by Judge Barkett and without dissent - - - sidestepped the issue of "expressive conduct":
The resolution of this appeal does not require us to determine whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct entitled to protection under the First Amendment. We will assume, without deciding, that this conduct is expressive and entitled to some protection under the First Amendment. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). But even when we assume that the feeding of homeless persons by Orlando Food Not Bombs is expressive conduct, we cannot conclude that the ordinance that regulates that conduct violates the Free Speech Clause of the First Amendment.
The en banc court ruled that it would "uphold the ordinance of the City of Orlando both as a
reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct." It easily concluded that the test of United States v. O’Brien, 391 U.S. 367 (1968) was satisfied:
The ordinance is a valid regulation of expressive conduct that satisfies all four requirements of O’Brien. First, Orlando Food Not Bombs does not contest that it is within the power of the City to enact ordinances that regulate park usage. Second, the City has a substantial interest in managing park property and spreading the burden of large group feedings throughout a greater area and those interests are plainly served by the ordinance. Third, the interest of the City in managing parks and spreading large group feedings to a larger number of parks is unrelated to the suppression of speech. Fourth, the incidental restriction of alleged freedoms under the First Amendment is not greater than necessary to further the interest of the City.
Footnote of the Day: Separation of Powers and Military Commissions in Hamdan
Writing for the Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Justice Stevens included footnote 23:
Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.
In his article, Congress, the Commander-In-Chief, and the Separation of Powers After Hamdan, 16 Transnational Law & Contemporary Problems 933 (2007), draft available on ssrn, Professor Stephen Vladeck argues - - - in a footnote - - - that "To say that “[t]he Government does not argue otherwise” is entirely misleading, for the government’s entire theory of the case was that the UCMJ procedures were not exhaustive." Id. at 959 n. 141.
Vladeck later expands on the relevance of the footnote in Hamdan and its relationship to the famous concurrence of Justice Robert Jackson (pictured right) in Youngstown:
In the crucial footnote 23, the only part of the majority opinion where Justice Stevens even attempted to recognize the existence of a significant constitutional question in Hamdan, the sole citation is to Justice Jackson’s Youngstown concurrence, and to page 637—where Jackson outlines all of the second category and the beginnings of the third. It is an odd choice, though, given that even in category three cases, where the President’s power was to be at its “lowest ebb,” there remained a residual question about “disabling” Congress, the very question raised by the Commander-in-Chief override.
Indeed, through the lens of Justice Jackson’s Youngstown concurrence, the logic of Hamdan grows only more obfuscated. Was the majority disavowing any and all claims to inherent executive power in the field of trying enemy combatants by military commission? If so, was it overruling a series of cases upholding such tribunals even where congressional authorization was questionable? Was it reading the UCMJ as manifesting clear (and valid) congressional intent to oust independent executive regulation? Suffice it to say, if Justice Stevens meant to decide Hamdan on the strength of Justice Jackson’s Youngstown concurrence, he skipped a few steps, for he did not even attempt to undertake the question (to which Jackson had devoted over a dozen pages) of whether the President’s inherent constitutional authority might trump congressional restrictions in such a case.
Id. at 960.
[image: Justice Robert Jackson, circa 1945, via]
April 11, 2011
Ninth Circuit Upholds Injunction Against Arizona SB1070
In its opinion issued today in United States v. Arizona, a panel of the Ninth Circuit affirmed the district court's preliminary injunction against the enforcement of four sections of the Arizona immigration statute passed a year ago and commonly known as SB 1070. The Ninth Circuit held that the US had a likelihood of success on its federal preemption argument against these four sections based on the federal government's claim of preemption under the Supremacy Clause, Article VI.
In the panel opinion, Judge Paez set out the applicable standards before turning to each section. The discussions in each section, however, also analyzed different standards and facets of the complexity that is preemption doctrine.
As to section 2(B), Judge Paez rejected Arizona's argument that state law enforcement officers are only required to verify the immigration status of an arrested person before release if reasonable suspicion exists that the person lacks proper documentation:
On its face, the text does not support Arizona’s reading of Section 2(B). The second sentence is unambiguous: “Any person who is arrested shall have the person’s immigration status
determined before the person is released.” Ariz. Rev. Stat. Ann. § 11-1051(B) (2010) (emphasis added). The all encompassing “any person,” the mandatory “shall,” and the definite “determined,” make this provision incompatible with the first sentence’s qualified “reasonable attempt . . . when practicable,” and qualified “reasonable suspicion.”
This - as well as other language in the statute - conflicted with INA, the federal law: "8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General."
As to section 3, Judge Paez found that Arizona's state criminal provision that "a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation" of federal law, is not authorized by federal statutes and "plainly stands in opposition to the Supreme Court's direction" regarding field preemption.
Section 5(c), the "work" provision which makes criminal an "unauthorized alien" knowingly applying for work soliciting work in a public place, or performing work, Judge Paez stressed the Congressional rejection of work penalties in the INA, as well as Ninth Circuit precedent on this issue, and concluded that federal law "likely preempts SB1070 Section 5(C) since the state law conflicts" with Congressional intent.
Finally, in addressing Section 6 which provides that a "peace officer, without a warrant, may arrest a person if the officer has probable cause to believe" that the "person to be arrested has committed any public offense that makes the person removable from the United States," Judge Paez found that states do not have inherent authority to enforce the civil provisions of federal immigration law. Moreover, this section "interferes with the federal government's prerogative to make removability determinations and set priorities."
Concurring, Judge Noonan wrote separately "to emphasize the intent of the statute and its compatibility with federal foreign policy."
Judge Bea concurred as to Sections 3 and 5(C), but dissenting as to the other two sections, stressing that the enforcement mechanisms and the necessity of considering Congressional - - - and not Executive - - - intent.
Footnote of the Day: Co-Ed Sports and VMI
Should there be co-ed football? Must there be?
Justice Scalia, dissenting in United States v. Virginia (VMI), 515 U.S. 515 (1996), objected to the Court's "sweeping" rejection of single-sex programs and argued that it seems there can not be any possible exceptions to the Court's broad rule. In footnote 8, he explained:
In this regard, I note that the Court--which I concede is under no obligation to do so--provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the Court's theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so.
This would be a great class exercise for law schools at public universities with a large proportion of football devotees. For baseball afficiandos, there will be a footnote later this week.
Suggested by Professor Jessica Silbey
[Image from the Cleveland Plain Dealer, May 1, 2009 via]