June 4, 2011
CFP: FedCourts Section AALS on War, Terrorism, and Federal Courts
CFP for January 2012 AALS Conference, deadline August 29, 2011
The AALS Section on Federal Courts is pleased to announce a call for papers in conjunction with the 2012 Annual Meeting of the Association of American Law Schools, to be held January 4–8, 2012, in Washington, D.C.
The topic of the section program at the 2012 Annual Meeting (Saturday, January 7, 1:30–3:15 p.m.) is “War, Terrorism, and the Federal Courts Ten Years After 9/11.” To that end, the panel will focus on the unique issues that federal courts have confronted during (and relating to) the conflict against al Qaeda and related terrorist groups, and how that body of jurisprudence has—and may yet—affect the role of the federal courts more generally going forward. Papers submitted in connection with the call should focus on this topic, or any specific aspect thereof, and should be between 15,000 and 30,000 words, including footnotes.
One paper will be selected from the call, and will be published in Volume 61 of the American University Law Review, alongside contributions from the invited panelists—including Curtis Bradley (Duke), Judith Resnik (Yale), Steve Vladeck (American), and the Honorable Brett Kavanaugh (U.S. Court of Appeals for the D.C. Circuit). In addition, the author of the selected paper will be invited to participate in the Federal Courts section panel at the 2012 Annual Meeting.
To be considered, papers must be submitted via e-mail to Steve Vladeck, American University Washington College of Law (email@example.com). All full-time faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible to submit.
The deadline for submission is 11:59 p.m. (EDT) on Monday, August 29, 2011. Papers will be selected after review by an ad hoc committee composed of members of the Executive Committee of the AALS Section on Federal Courts. The selected author will be notified by Monday, October 3, 2011, and will be responsible for paying their annual meeting registration fee and travel expenses.
June 3, 2011
House Resolution on Libya
The U.S. House of Representatives on Friday passed a resolution (268-145) introduced by Speaker Boehner purporting to limit the use of ground troops in Libya and to require the President to provide justification for and information about U.S. involvement in Libya. We posted on other congressional efforts related to U.S. involvement in Libya and the War Powers Resolution here; we posted on OLC's opinion that the President had authority to order operations in Libya here.
The House resolution says that "[t]he President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya unless the purpose of the presence is to rescue a member of the Armed Forces from imminent danger." It also "directs" members of the administration to transmit "copies of any official document, record, memo, correspondence, or other communication" relating to communications with Congress or the WPR and Libya. It further directs the President to submit detailed information to the House on a variety of often very specific questions. (Reporting directions have a 14-day deadline.) Finally, it reminds us that Congress has the power of the purse.
Speaker Boehner explained yesterday on the House floor:
This resolution puts the President on notice. He has a chance to get this right. If he doesn't, Congress will exercise its constitutional authority to make it right.
The House adopted Speaker Boehner's resolution over Representative Kucinich's much more aggressive resolution (which would have required U.S. withdrawal from supporting NATO allies in Libya).
Here's the White House response, through a press Q&A with Principal Deputy Press Secretary Josh Earnest:
Q: Josh, clearly--in the House of Representatives there's a vote today. Clearly in both sides of the aisle now there's growing concern about mission creep in Libya, the lack of official notification in accordance with existing American law. What is the President's thought about this vote today and is he concerned about a lack of support of Congress?
A: Well, as you remember, Mike, congressional--the administration believes strongly in the concept of consulting with leaders of Congress. That's why the President himself consulted with congressional leaders before military action in Libya even began. And as this operation has continued, as we've shifted control of this operation to our NATO partners--or the lead of this NATO operation to our partners, we've continued to consult with Congress all along. In fact, in just the last week, there have been three separate congressional briefings that have been convened by this administration's national security team for leaders in Congress to keep them apprised of the progress and the situation there. So clearly--
Q: --not in accordance with the War Powers Act, in terms of official notifications and the 60-day expiration, which happened two weeks ago.
A: It is the view of this administration that we've acted in accordance with the War Powers Act because of this regulation consultation. We've been engaged in that consultation all along--as I mentioned, three separate briefings have been held just this week for members of Congress. We're committed to that moving forward. But in terms of the resolutions that you asked about in your first question, the President--that continued consultation demonstrates why these resolutions are unnecessary and unhelpful.
June 2, 2011
June is LGBT Pride Month: The White House Perspective
President Obama has issued a Presidential Proclamation declaring "June 2011 as Lesbian, Gay, Bisexual, and Transgender Pride Month" and calling "upon the people of the United States to eliminate prejudice everywhere it exists, and to celebrate the great diversity of the American people." Here's the opening:
The story of America's Lesbian, Gay, Bisexual, and Transgender (LGBT) community is the story of our fathers and sons, our mothers and daughters, and our friends and neighbors who continue the task of making our country a more perfect Union. It is a story about the struggle to realize the great American promise that all people can live with dignity and fairness under the law. Each June, we commemorate the courageous individuals who have fought to achieve this promise for LGBT Americans, and we rededicate ourselves to the pursuit of equal rights for all, regardless of sexual orientation or gender identity.
In the area of LGBT families, DOMA is noticeably absent, but it appears under the last section, "Supporting LGBT Progress":
- President Obama has called for the Congressional repeal of the discriminatory “Defense of Marriage Act” and has announced that in his view, Section 3 of DOMA is unconstitutional
- President Obama also continues to support legislation that would directly impact the LGBT community, including an inclusive ENDA and the Domestic Partners Benefits and Obligations Act
- President Obama believes that all students should be safe and healthy and learn in environments free from discrimination, bullying and harassment; that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation; and that Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country
June 1, 2011
Electronic Presentment and Return OK'd by OLC
The Office of Legal Counsel last month issued a memorandum opining that presentment and return of bills in electronic form, and not on paper, satisfies Article I, Section 7. The memo is hardly a surprise in light of the Office's 2005 memo concluding that the President may sign legislation using an autopen--an opinion upon which President Obama recently relied in signing the Patriot Act extension. But still it's a good case study in constitutional interpretation.
Article I, Section 7 reads, in relevant part:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.
The question was whether the terms "presented" and "return" require presentment and return in paper form, or whether they allow electronic form.
The OLC concluded that the terms are not terms of art, drawn from the common law. It therefore looked at their meanings in ordinary usage, consulting two dictionaries that define terms at the time of, and before, the Constitution's adoption, and contemporary dictionaries. (No matter how pliable the terms were, nobody in the founding generation could have intended or understood them to include electronic transmissions. But the definitions do not rule this out.) The OLC also looked at the purposes of the presentment and return requirements, historical practice, and legal precedent (though sparse)--all common sources for the OLC.
In this memo and in the 2005 memo, the OLC emphasized a practical approach to Section 7 in light of changing technology. In particular, the OLC recognized that the political branches adapted to changing technology in signing, presenting, and returning. Use of an electronic medium is only an extension, for practical reasons, of that practice.
May 31, 2011
Ashcroft Gets Qualified Immunity in Fourth Amendment Arrest and Detention Case
The Supreme Court ruled today in Ashcroft v. Al-Kidd that former AG John Ashcroft enjoyed qualified immunity from a civil rights suit against him for an arrest and detention under the federal material witness statute. The ruling means that Abdullah Al-Kidd's Fourth Amendment case against Ashcroft is dismissed--and that such arrests and detentions pursuant to a valid material witness warrant do not violate the Fourth Amendment. But the ruling also puts the validity of material witness warrants in cases like this on shaky ground.
Al-Kidd sued Ashcroft for his arrest and detention pursuant to the material witness statute, 18 U.S.C. Sec. 3144. (The statute authorizes judges to "order the arrest of [a] person" whose testimony "is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena." But material witnesses must be released if their testimony "can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.") Al-Kidd argued that Ashcroft never intended to use him (and never in fact used him) as a material witness; instead, he was detained for 16 days at three different facilities, kept in high-security cells lit 24 hours a day, strip-searched and body-cavity searched more than once, and handcuffed and shackled about his wrists, legs, and waist.
The district court and Ninth Circuit both ruled for Al-Kidd, denying Ashcroft qualified immunity.
The Court today reversed. All eight participating justices agreed that Ashcroft did not violate a "clearly established" Fourth Amendment right at the time of Al-Kidd's arrest and detention pursuant to the material witness statute. (Justice Kagan recused herself from the case.) Under Harlow v. Fitzgerald, an official gets qualified immunity unless (1) the official violated a statutory or constitutional right (the constitutional question) and (2) the right was "clearly established" at the time of the conduct. Thus the Court's ruling on the "clearly established" prong alone means that Ashcroft gets qualified immunity.
But the Justices divided sharply on the constitutional question. Justice Scalia (again writing for five) wrote that Al-Kidd's arrest and detention did not violate the Fourth Amendment. He wrote that the Court generally does not probe intent in determining the validity of warrants. Here, Al-Kidd's objectively reasonable arrest and detention pursuant to a validly obtained warrant cannot be challenged as unconstitutional simply because the arresting authority had an improper motive (i.e., not to use Al-Kidd as a material witness, but rather simply to detain him).
Four Justices expressed varying degrees of reservation on the broader question of the use of material witness warrants for general detention. Justice Kennedy, who signed on to Scalia's opinion in full, wrote separately (joined by Justice Ginsburg, Breyer, and Sotomayor) to say that the Court left open the question whether the government's use of the material witness statute was lawful. Justice Kennedy wrote that material witness warrants might not even be "warrants" for Fourth Amendment purposes, and therefore material witness arrests might be subject to the Fourth Amendment reasonableness standard. He emphasized that the parties did not argue, and the Court did not address, this question. (Justice Kennedy also expressed his views on the "clearly established" standard as applied to a national official like Ashcroft. No other Justice joined this part of his opinion.)
Justice Ginsburg (writing for herself and Justices Breyer and Sotomayor) challenged the validity of the warrant, principally because it was based on false and misleading allegations. Justice Sotomayor (writing for herself and Justices Ginsburg and Breyer) challenged the "subjective intent" rule here, in a case involving prolonged detention of an individual without probable cause to believe had he committed a crime.
Between the opinions, all eight participating Justices agree that Ashcroft did not violate a "clearly established" right. Five Justices agree that Ashcroft did not violate the Fourth Amendment. But one of those, Justice Kennedy, and three others suggested that the validity of a material witness warrant used merely for detention is an open question, at best.
Note that Justice Scalia wrote, and Justices Kennedy and Thomas joined, the Court's opinion on the constitutional question, when all three last week criticized the practice among lower courts (and authorized by the Supreme Court) of ruling on the constitutional question. The difference: Here it's the Supreme Court, not a lower court, ruling on the constitutional question.
May 30, 2011
Originalism and the Autopen: Obama's "Signing" of Patriot Act Extension Constitutional
Article I, Section 7 of the Constitution provides that:
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it. . . .
What does "sign" mean? Or, more precisely, does "sign" include signature by an autopen?
That is the question raised by President Obama's "signing" the Patriot Act extension, S. 990, the “PATRIOT Sunsets Extension Act of 2011, by autopen. The Presidential autopen signature of legislation is an apparent first. According to the NYT, with President Obama in Europe and the Patriot Act provisions "set to expire at midnight Thursday, the White House concluded that a mechanical signature would have to do."
Often the President signs a bill into law in a public ceremony (at right, Obama signing the Lily Lebetter Fair Pay Act). The usual practice when the President is not available, again according to the NYT, is that "White House staff members fly, unsigned legislation in hand, to wherever the president happens to be," but the Obama Administration decided to resort to the autopen, "a machine that reproduces signatures and is ubiquitous in government and business for routine transactions — letters, photos, promotional materials — into the ultimate stand-in." Recall that autopen signatures are also at issue in foreclosure actions across the US.
Representative Tom Graves (R-Ga.) has sent a public letter to President Obama questioning both the presentment criteria and the signature requirement.
The autopen issue was the subject of an extensive Memoradum Opinion by the Office of Legal Counsel in 2005. The Memorandum made clear that the issue was not whether the President could delegate the decision, but that once having made the decision, he could "direct a subordinate" to affix the signature. The Memorandum's "roadmap" paragraph outlines the analysis and conclusion:
Our analysis proceeds as follows: In Part I, we examine the legal understanding of the word “sign” at the time the Constitution was drafted and ratified and during the early years of the Republic. We find that, pursuant to this understanding, a person may sign a document by directing that his signature be affixed to it by another. We then review opinions of the Attorney General and the Department of Justice and find the same understanding reflected in opinions addressing statutory signing requirements in a variety of contexts. Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7. In Part II, we consider the settled interpretation of the related provisions of the same section of the Constitution that require that bills be presented to the President and that the President return to Congress bills he disapproves, and find that this interpretation confirms our view of Article I, Section 7’s signing requirement. In Part III, we consider practice and precedent relating to the constitutional signing requirement and show that they do not foreclose our conclusion.
Supporting its conclusion that Presidential autopen signatures are constitutional signatures under an originalist interpretation, the Memorandum states
At the time the Constitution was drafted and ratified, and continuing thereafter, courts in England and the United States applied the rule that “when a document is required by the common law or by statute to be ‘signed’ by a person, a signature of his name in his own proper or personal handwriting is not required.” Finnegan v. Lucy, 157 Mass. 439, 440 (1892) (noting that this rule “was and still is very generally held”; collecting early English and American authorities) . . . . Although the precise origins of the principle of signatures are not clear, they appear to trace back at least as far as Lord Lovelace’s Case, 82 Eng. Rep. 140, Sir Wm. Jones Rep. 268 (J. Seate 1632) . . . .
The Memorandum then discusses other pre-Revolutionary War English cases, the original Statute of Frauds (1677), and the applicability of such private law principles to public law, to ultimately conclude, "Thus, it was well settled at common law that one could sign a legally binding document without personally affixing his signature to it. Rather, under the principle of signatures, one could sign a document by authorizing or directing another to place one’s signature on it."
Although President Bush never relied upon the Memorandum issued in 2005, and the use of the autopen has provoked satire ("Despite possible constitutional challenges, the Supreme Court is expected to uphold the practice given that opposing it would likely offend Justice Scalia's autopen, Clarence Thomas"), it seems that while Obama's resort to the autopen may be a first, it is not unconstitutional, even under an originalist interpretation.
[image: Obama signing the Lily Lebetter Fair Pay Act, via]