January 15, 2011
West Virginia Weekend: When will there be an elected governor?
West Virginia continues to play host to numerous constitutional uncertainties initially sparked by the death of longtime U.S. Senator Robert C. Byrd and the special election of then-Governor Joe Manchin (D) to fill the senatorial vacancy.
This past Tuesday, West Virginia’s highest court, the Supreme Court of Appeals, heard oral arguments on a petition for writ of mandamus that seeks to force state leaders to schedule a special gubernatorial election to finish Manchin’s unexpired term. Petitioners sued the President of the Senate and Acting Governor Earl Ray Tomblin, Speaker of the House Rick Thompson, and Secretary of State Natalie Tennant. In addition to the parties, the Court heard from numerous amici, and all parties and amici apart from the current Acting Governor seek a judicially ordered special election this year. The court must interpret the West Virginia Constitution which provides:
Article VII, section16, "Vacancy in governorship, how filled":
In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.
As we previously discussed, the provision is ambiguous. But with fresh claims of unconstitutional action out of the State Senate over new senate rules, it’s beginning to appear as if most of the regular legislative session will be consumed by constitutional wrangling. To distance himself from the State Senate where he technically still presides as Senate President, the Acting Governor tacitly endorsed a rule change whereby the State Senate created the new position of Acting Senate President to preside in the absence of the Senate President. This position was created and ultimately filled by none other than Tomblin’s chief political foe and fellow Democrat, Senator Jeff Kessler. (Kessler, known as a more labor-friendly Democrat than Tomblin, announced for governor last year.) During the debate on the rules change, disaffected Democrats joined the small band of Senate Republicans to denounce Kessler’s ascendancy as an unwarranted political coup. One Republican who called the rules change “unprecedented, unconstitutional, and illegal,” blamed Kessler’s power play and Tomblin’s later submission as the result of senators who “signed in blood.” Despite the heated rhetoric, the new rules were adopted and Kessler promptly took control of the State Senate and replaced Tomblin’s committee chairs and caucus leaders with his own supporters.
Arguments labeling the new rules unconstitutional appear to rest with Article VI, Section 24 of the West Virginia Constitution: “The Senate shall choose, from its own body, a president. . . .” Because the State Senate chose Tomblin as Senate President, thus allowing him to remain Acting Governor, critics suggest that creating the additional position of “Acting Senate President” impermissibly treads on the above constitutional mandate that there be only one president. However, the same section further reads that “[e]ach house shall appoint its own officers, and remove them at pleasure.” Taken together with the usual reluctance of courts to involve themselves in disputes over the internal rules of a legislative body, the claims of unconstitutionality may go no further than the senate chamber.
An additional constitutional complication has the potential of bringing all lawmaking to a halt. It has been no secret that the Speaker of the House of Delegates opposes the new senate rules and rise of Kessler, as the Speaker, too, has gubernatorial aspirations. In recent days, Kessler’s critics have stated that the House of Delegates may not agree to joint rules that would recognize Kessler’s signature for senate-passed bills. As the argument goes, statue and convention provide that only the Senate President (in this case, the Acting Governor) and not the Acting Senate President may sign such bills before they go on to the House and/or the Governor. Naturally, the Senate President and Acting Governor hopes to avoid the sticky situation of signing a bill twice, representing both the executive and half of the legislative branches. Of course, this implicates the separation of powers provision in the state constitution, which we discussed in our earlier post.
Meanwhile, the Acting Governor has proposed a working group to study the idea of creating the separate constitutional office of lieutenant governor. West Virginia is one of the few states that does not have a lieutenant governor.
Considering the political turmoil caused by ambiguous and archaic constitutional provisions, it might be an understatement to suggest that West Virginia’s Constitution—ratified in 1872—is starting to show its age.
(with J. Zak Ritchie)
January 14, 2011
Davis and Kalb on Anti-International Law Initiatives
Profs. Martha Davis (Northeastern) and Johanna Kalb (Loyola New Orleans) recently released an American Constitution Society Issue Brief, Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives. We most recently posted on Oklahoma's vote to amend its constitution to ban the use of Sharia law in its courts here.
Davis and Kalb put Oklahoma's ballot initiative in a larger context of federal and state initiatives to ban the use of international or foreign law in U.S. courts and explore the legal and policy issues raised by these initiatives. Thus they argue that state anti-international law initiatives undermine federalism, interfere with federal protections for American citizens and businesses, and interfere with judicial independence.
From the Brief:
What the proponents of the amendment fail to acknowledge, however, is that it is impossible to bar judicial "consideration" of any source--particularly when, as described above, international law is relevant to the dispute. If anything, the amendment forces judges and justices to be less transparent in their reasoning or (if they try to abide by the strict letter of the provision) to reach incorrect decisions. And as unlikely as these provisions are to promote their intended goal, the consequences of these sorts of measures for Oklahoma and for the nation are severe. The federal government's capacity to protect American citizens and businesses on the international stage is directly related to its ability to guarantee our nation's reciprocal compliance. Oklahoma's action threatens our national commitment to honoring our international obligations and undermines the states' ability to work cooperatively with the federal government to implement them.
The Brief is good reminder that there are important legal and policy issues in these initiatives--beyond the First Amendment issues that most often catch our attention.
January 12, 2011
Arizona Passes Funeral Picketing Statute
Prompted by concerns over planned protests at the funerals of victims of Saturday's shootings, Arizona passed emergency legislation. Arizona SB1101 provides:
13-2930. Unlawful protest activities; classification; definition
A. A PERSON SHALL NOT PICKET OR ENGAGE IN OTHER PROTEST ACTIVITIES, AND AN ASSOCIATION OR CORPORATION SHALL NOT CAUSE PICKETING OR OTHER PROTEST ACTIVITIES TO OCCUR, WITHIN THREE HUNDRED FEET OF THE PROPERTY LINE OF ANY RESIDENCE, CEMETERY, FUNERAL HOME, CHURCH, SYNAGOGUE OR OTHER ESTABLISHMENT DURING OR WITHIN ONE HOUR BEFORE OR ONE HOUR AFTER THE CONDUCTING OF A FUNERAL OR BURIAL SERVICE AT THAT PLACE.
B. A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A CLASS 1 MISDEMEANOR.
C. FOR THE PURPOSES OF THIS SECTION, "OTHER PROTEST ACTIVITIES" MEANS ANY ACTION THAT IS DISRUPTIVE OR THAT IS UNDERTAKEN TO DISRUPT OR DISTURB A FUNERAL OR BURIAL SERVICE.
As the LA Times reports, "The [legislature's] actions were prompted by the Westboro Baptist Church, a publicity-seeking Kansas congregation known for demonstrating at the funerals of U.S. soldiers, arguing that their deaths are retribution by God for America's acceptance of homosexuality. The church announced it would protest [9-year-old shooting victim Christina] Green's funeral, scheduled for Thursday, because the family is Catholic." Church members also protested at the funeral of Vice-President Joe Biden's mother.
In signing the bill, Arizona Governor Jan Brewer stated that the law will prohibit "despicable acts of emotional terrorism" and "assure that the victims of Saturday’s tragic shooting in Tucson will be laid to rest in peace with the full dignity and respect that they deserve." Brewer's statement also noted that Arizona joined "46 other states in a brief at the United States Supreme Court filed in support of the right of grieving families to seek a civil remedy against those that choose to protest and disrupt the funerals of their loved ones."
The reference is to Snyder v. Phelps, argued before the United States Supreme Court in October. While Snyder v. Phelps involves an action for intentional infliction of emotion distress and does not directly involve a state or municipal regulation of protest activities, the First Amendment is a central defense of the church's protests.
An excellent constitutional analysis of the funeral protest statutes and regulations is Christina Wells' Privacy and Funeral Protests, 87 N.C. L. Rev. 151 (2008), available on ssrn. Professor Wells (pictured left), of University of Missouri School of Law, argues that funeral protest laws seek to protect a "civility-based privacy right" that is not doctrinally recognized rather than an "intrusion-based privacy right" which has been recognized.
Certainly Governor Brewer's statements support Wells' argument.
Wells ultimately concludes:
Litigation over the legitimacy of funeral protests, however, has the potential to make very bad law. The combination of an ill- defined interest, unclear doctrine, and controversial protests has “exercise[d] a kind of hydraulic pressure” that threatens to engulf our understanding of this issue. It has caused state officials and courts to respond out of emotion rather than with careful analysis of the Court’s precedents. The resulting law, if it remains, will have a lasting and detrimental impact on our free speech jurisprudence.
Wells' citations of the 41 states having funeral protest laws (fn 37) can now be amended to include Arizona.
January 11, 2011
Justice Thomas: Denial Nullifies Recent Commerce Clause Jurisprudence
Justice Thomas dissented yesterday (joined by Justice Scalia) in a denial of review of a case that the Court might have used to clarify the scope of the Commerce Clause. Instead, Justice Thomas argued, the Court in denying review "tacitly accepts the nullification of our recent Commerce Clause jurisprudence." Op. at 1.
While Justice Thomas overstates the significance of the denial of review, his dissent may give us some clues about the Court's most recent thinking on the Commerce Clause.
The case, Alderman v. U.S., involves 18 U.S.C. Sec. 931(a), the federal statute that outlaws body armor for anyone who has been convicted of a felony crime of violence and where the body armor was sold or offered for sale in interstate commerce. Alderman was charged with violating the statute and entered a conditional plea. He then appealed, arguing that the statute exceeded Congress's Commerce Clause authority.
A divided three-judge panel of the Ninth Circuit rejected the argument and upheld the statute. The panel looked to the Court's 1977 ruling in Scarborough v. United States, a case involving a federal prohibition on possession of firearms by felons. While Scarborough involved a different federal statute, it contained a similar "jurisdictional element"--a requirement that the regulated thing (there a firearm, here body armor) traveled in interstate commerce. Thus Scarborough "considered whether proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between possession of the firearm and commerce." Op. at 7 (quoting United States v. Cortes (9th Cir. 2002)). Scarborough did not directly address the constitutional question, but the Ninth Circuit ruled that it "implicitly assumed the constitutionality of the 'in commerce' requirement." Op. at 7. Thus, the Ninth Circuit ruled, Scarborough holds that a statute's jurisdictional element alone can put a statute within congressional power "[t]o regulate Commerce . . . among the several states . . . ." Art. I, Sec. 8, the Commerce Clause. Just as the jurisdictional element in Scarborough kept the federal firearm restriction within Congress's Commerce Clause authority, so too here the jurisdictional element keeps the federal body armor restriction within Congress's Commerce Clause authority.
The Ninth Circuit denied en banc review, and yesterday the Supreme Court denied review.
Justice Thomas (joined by Justice Scalia in all but a footnote referring to some of Justice Thomas's other writings on the scope of the Commerce Clause) wrote that the denial "nullified" more recent Commerce Clause jurisprudence, United States v. Lopez and United States v. Morrison. Those cases held that Congress can regulate activities that have a substantial effect on interstate commerce, as measured by four considerations: whether the activity is commercial, or has anything to do with commerce; whether the statute contains a jurisdictional element; whether the legislative history contains any findings as to the effect on interstate commerce; and whether the link between the activity and a substantial effect on interstate commerce is too attenuated.
Justice Thomas argues that the denial amounts to privileging the jurisdictional element above all else and ignoring the statute's encroachment on traditional state police powers. According to Justice Thomas, this approach knows no bounds and would allow Congress to regulate everything from stolen candy transported across state lines to french fries purchased in another state.
Justice Thomas overstates the denial's impact on Lopez and Morrison. A denial of review does not change the Supreme Court's jurisprudence, even implicitly. And there may be any number of non-merits reasons why the Court denied review.
On the other hand, the Court's denial and Justice Thomas's dissent may tell us something about the Court's thinking on the Commerce Clause. For one, the denial leaves the Ninth Circuit ruling in place, along with similar rulings in other circuits. With no circuit going the the other way (rejecting congressional authority), the Ninth Circuit is now just the latest in a growing line of rulings that a jurisdictional element alone can authorize congressional regulation under the Commerce Clause. This is significant: If the Court wanted to reverse this line and rein in the lower courts, as Justice Thomas argued, this seemed like the perfect case.
Thus the Court's denial could mean that it doesn't want to reverse this line. And that's plausible: The Ninth Circuit's approach isn't necessarily inconsistent with Lopez or Morrison; it's really a special case. Neither Lopez nor Morrison gave any indication how the Court would weigh the four considerations if there were a clear and well defined jurisdictional element limiting the statute to activities sufficiently linked to interstate commerce. Such an element--as here, as in Scarborough--may just be enough for the Court.
For another, Justice Thomas was joined only by Justice Scalia. That's not to say that others don't agree with the analysis--perhaps they do. But none felt strongly enough about it to sign on.
Still, we can't read too much, if anything, from a dissent to the Court's denial of review. Maybe the Court is inclined to take a look at this question, but this was just the wrong case at the wrong time. In any event, the denial and Justice Thomas's dissent give us no clues as to how the Court might rule on the Commerce Clause issue of the day--the individual health insurance mandate. The question there--whether the Commerce Clause authorizes Congress to require individuals to purchase insurance--is just too different from the question in Alderman.
Constitution Worship: Jill Lepore in The New Yorker
Worth reading is a commentary by critic Jill Lepore in the January 17 issue of The New Yorker entitled The Commandments: the Constitution and its worshippers.
Lepore (pictured right) puts the current highlighting of the Constitution, including its (edited) reading in the House of Representatives, in historical and critical perspective. Lepore writes:
If you haven’t read the Constitution lately, do. Chances are you’ll find that it doesn’t exactly explain itself. Consider Article III, Section 3: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” This is simply put—hats off to the committee of style—but what does it mean? A legal education helps. Lawyers won’t stumble over “attainder,” even if the rest of us will. Part of the problem might appear to be the distance between our locution and theirs. “Corruption of Blood”? The document’s learnedness and the changing meaning of words isn’t the whole problem, though, because the charge that the Constitution is too difficult for ordinary people to understand—not because of its vocabulary but because of the complexity of its ideas—was brought nearly the minute it was made public. Anti-Federalists charged that the Constitution was so difficult to read that it amounted to a conspiracy against the understanding of a plain man, that it was willfully incomprehensible. “The constitution of a wise and free people, ought to be as evident to simple reason, as the letters of our alphabet,” an Anti-Federalist wrote. “A constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man,” Patrick Henry argued. He believed that what was drafted in Philadelphia was “of such an intricate and complicated nature, that no man on this earth can know its real operation.”
This could be the basis for a great first assignment for the new semester's Constitutional Law class, in law school or as an undergraduate offering, as a way to open a discussion of the Constitutional text and its interpretations.
January 10, 2011
Judge John Roll
Judge John McCarthy Roll, Chief Judge of the United States District of Arizona, was killed by gunfire Saturday. Appointed by President Bush in 1991, Roll's Federal Judicial Center profile is here and his judgepedia profile is here. Extensive coverage of Roll's career and the circumstances of his death is available from The Wall Street Journal here.
The Press Release from the United States District Court for the District of Arizona provides:
January 8, 2011 -- The U.S. District Court for the District of Arizona has suffered a grievous loss today with the untimely death of Chief Judge John M. Roll, who was shot and killed when a gunman opened fire on a crowd at an event hosted by Congresswoman Gabrielle Giffords in Tucson, Arizona. Judge Roll was appointed to the federal bench in 1991, and served as chief judge of the district since 2006. The devoted husband, father of three, grandfather of five, and friend to all who knew him, will be greatly missed by his family and community. He was a warm, compassionate judge and inspirational leader in what is one of the busiest districts in the country. His death will leave a significant void in the District of Arizona and the entire federal judiciary, and we are all deeply saddened.
The court's website also features an entry for USA v. Jared Lee Loughner, with a copy of the criminal complaint, count 3 of which concerns Judge Roll, as an employee of the United States who was "engaged in performance of his official duties."
January 9, 2011
President Obama's Signing Statement on Guantanamo Restrictions
President Obama on Friday issued a signing statement upon signing HR 6523, the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, taking issue with the restrictions on his authority to transfer Guantanamo detainees. We most recently posted on this here.
The statement claims that the restrictions interfere with the President's Article II authority, but stop short of calling them unconstitutional. The statement ends with a line that the administration will work with Congress to repeal those provisions--an unlikely prospect in the new Congress--underscoring the relatively passive approach here.
This statement is in stark contrast to earlier signing statements raising constitutional objections. President Obama has previously declared some portions of legislation unconstitutional and flatly declined to enforce them. (President Obama wasn't the first to do this, or even the most aggressive. President George W. Bush issued a number of such statements, drawing heavy criticism for his unilateral, and questionable, determinations that some provisions were unconstitutional and for his resulting refusal to enforce them. President Obama moved to reform the practice soon into his administration.)
For comparison, consider the text of the signing statement issued on Friday:
Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our effort to protect the Nation and must be among the options avaiable to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.
With respect ot section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interferes with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict. We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries. The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities. Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers. Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.
Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act becuase of the importance of authorizing appropriations for, among other things, our military activities in 2011.
Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.
Compare that relatively timid statement with the President's much more aggressive signing statement on signing the Omnibus Appropriations Act of 2009; here's just a taste:
The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.
[As to restrictions on negotiations in foreign affairs] . . . I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.
[As to restrictions on UN Peacekeeping Missions] . . . [t]his provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.
[As to restrictions on pay of federal employees who interfere with communications between federal employees and Congress] . . . I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.
Why the difference in the two signing statements?
- One possiblity is that the Gutanamo restrictions touch a political nerve that the President would rather not aggrevate by declaring them outright unconstitutional and declining to enforce them. In other words, the administration judged that the constitutionally correct position (that the restrictions are unconstitutional) did not sufficiently outweigh the likely political backlash of fully endorsing and actualizing that position. This seems the most likely reason for the different tone on Friday. If true, it means that the politics drove the constitutional practice and, as the President wrote, set a very dangerous constitutional precedent. And because practice and precedent are important tools for constitutional interpretation (especially over Article II authority), the politics in some important ways changed the constitutional law. The President's language about the interference with Article II authority and setting a dangerous precedent do little, if anything, to preserve the constitutional objection the next time Congress seeks to interfere with executive authority in this way. Rather the restrictions set the precedent and practice: the restrictions in the legislation, not the timid signing statement, are what future congresses and presidents will look to in judging presidential authority in like situations.
- Another possibility is that the administration has come around to view the more aggressive variety of signing statements--those that declare a provision unconstitutional and decline to enforce it--are themselves undesirable (or even unconstitutional). This seems consistent with the administration's early reevaluation of signing statements, but it seems inconsistent with its own practice (as above). If this were the reason, we might have expected some additional signal from the administration that it's fundamentally changing its position on signing statements--even more than its earlier statements.
- A final possibility is that the administration will act as though this latest signing statement read the same way that the more aggressive style of signing statements read--that is, the administration will decline to enforce these provisions. There's a small hint that this may be the direction the administration intends to move: the phrase "will seek to mitigate their effects" in the last line. But it also seems utterly inconsistent with the administration's earlier position on signing statements and its more general commitment to transparency. This would also result in especially grave political fallout once President Obama started closing Guantanamo and transferring detainees in violation of the restrictions: not only would the President have ignored the restrictions; he also would have publicly misled about his intentions in the signing statement. This seems like the least likely reason for the difference in this most recent signing statement.
If ever there were a time for a signing statement with a strong constitutional objection, this would have been it. (A veto, with a constitutional message, would have been much better. But the timing and the politics wouldn't allow it here.) Instead, the weaker signing statement and enforcement of the restrictions (even "mitigated") sets the precedent the next time Congress wants to interfere with core Article II powers of prosecution and foreign affairs.