Saturday, July 9, 2011

Candidate Has Standing to Challenge Section 5

A three-judge panel of the D.C. Circuit ruled on Friday that a political candidate has standing to lodge a facial challenge against Congress's authority to reauthorize Section 5 of the Voting Rights Act--the preclearance requirement that has become a target in litigation since Congress reauthorized it in 2006.

The case, LaRoque v. Holder, grows out of a citizen referendum in Kinston, North Carolina, that changed city elections from partisan to nonpartisan.  Kinston lies within a jurisdiction covered by Section 5 of the VRA, so the city council had to gain Justice Department preclearance before implementing the referendum.  DOJ declined to preclear, concluding that "[r]emoving the partisan cue in municipal elections [would], in all likelihood, eleminate the single factor that allows black candidates to be elected to office."  The city council declined to seek de novo review of the referendum by a three-judge district court, thereby effectively nullifying it.

Several Kinston residents, including John Nix, a resident who declared his candidacy for city council in the 2011 elections, sued, lodging a facial challenge against Congress's authority under the Fourteenth and Fifteenth Amendments to reauthorize Section 5. 

Nix, the subject of the court's standing analysis, is a registered Republican, but prefers to run in the referendum-approved nonpartisan election, because, he says, it'll make it cheaper and easier for him to run, and he's more likely to win.  The district court dismissed for lack of standing.

The D.C. Circuit reversed.  It ruled that Nix alleged sufficiently concrete and particularized injuries (that the partisan election will make it tougher for him to get on the ballot and less likely that he'll win), sufficient causation (because the city council's decision not to implement the referendum was the result of DOJ's enforcement of Section 5), and sufficient redressability (because a ruling that Section 5 exceeds congressional authority would allow the city council to implement the referendum).

The court also ruled that Nix had prudential standing, citing the Supreme Court's recent decision Bond v. United States and ruling that Nix isn't precluded from suing just because he "challenge[d] a law that he claims 'upset[s] the constitutional balance between the National Government and the States.'"  Op. at 24.

The court remanded the case to the district court to consider the merits of Nix's claim--whether reauthorization of Section 5 exceeds congressional authority, an issue the Supreme Court dodged in its 2009 ruling, Northwest Austin Municipal Utility District Number One v. Holder, but has remained an issue in litigation since.


July 9, 2011 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, July 8, 2011

Alabama HB56: Constitutional Challenge to Alabama Immigration Law

Alabama's HB56, signed into law in June, and being touted as the "nations' toughest immigration law," has been challenged in federal court. 

Alabama Map

The Alabama statute, slated to become effective September 1, joins other state statutes such as Arizona's SB1070, partially enjoined with the injunction upheld on appealIndiana's statute enjoined last month; and Georgia's statute also enjoined last month.

Alabama's statute shares many of the constitutional problems of the Arizona, Indiana, and Georgia statutes.

One of the more controversial requirements includes "record-keeping" by public schools: 

Every public elementary and secondary school in this state, at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program.

Other provisions criminalize harboring or transporting an "alien," a provision that could criminalize citizens assisting non-citizen family members, mandatory use of E-verify by employers, and criminal solicitation provisions.

The 118 page complaint in  Hispanic Interest Coalition of Alabama v. Bentley, filed on behalf of several organizations, represented by organizations including the Southern Poverty Law Center, has eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First amendment claims including speech, assembly, and petition clauses, and the Contracts Clause.  The Complaint also includes two interesting Sixth Amendment claims:

HB 56 violates the Confrontation Clause because a defendant would be prohibited from confronting the witness who prepared the federal government verification, and the state court is prohibited from considering any evidence except for the federal government verification.

HB 56’s criminal provisions violate the Compulsory Process Clause (as well as the Due Process Clause) because a defendant would be prohibited from presenting a defense on the issue of whether he or she possesses lawful immigration status.

Whether or not the Alabama statute is enjoined as similar statutes have been, the issue of the ability of states to pass immigration measures - - - and the scope of any measures - - - is sure to reach the United States Supreme Court, yet again.

[image: flag map of Alabama via]


July 8, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Elections and Voting, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, News, Preemption, Race, Speech, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Government will not appeal bankruptcy judges' decision that DOMA Unconstitutional

Last month 20 bankruptcy judges in California signed an opinion that concluded that section 3 of DOMA - - - the Defense of Marriage Act - - -was unconstitutional.  Thus, a same-sex married couple (under state law) could proceed with their bankruptcy action as a married couple (under federal law).

While the bankruptcy trustee initially appealed the order, today the trustee moved to withdraw the appeal.


In a pleading filed today, the trustee represented that not only will the Department of Justice not defend the constitutionality of DOMA, but that

The Department of Justice has advised the House Bipartisan Legal Advisory Group (the "BLAG") of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA.  The BLAG is actively participating in litigation in several other courts . . .

Thus, the trustee "has determined that it is not a necessary or appropriate expenditure" of resources to continue to litigate the appeal.

The bankruptcy judges' opinion, unappealed, is yet another rupture in the constitutional status of DOMA.


July 8, 2011 in Cases and Case Materials, Congressional Authority, Current Affairs, Equal Protection, Family, Gender, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 7, 2011

Independence Day for Southern Sudan

The Republic of South Sudan celebrates its independence this month, with a ceremony on July 9, the new nation's independence day, in the capital Juba.  Southern Sudanese voted overwhelmingly for independence in February.  The United States immediately recognized the new country and will send a delegation to Juba for the ceremony.

The Republic of Southern Sudan has been operating under an interim constitution since the comprehensive peace agreement with Sudan.  The government formed a constitutional review committee chaired by Minister of Legal Affairs and Constitutional Development John Luk Jok to review and revise the interim constitution. has a concise analysis of the opportunities and challenges the country now faces; more information and links are available on Government of Southern Sudan--USA.



July 7, 2011 in Comparative Constitutionalism, International, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

DADT Enjoined by Ninth Circuit: Military Cannot Enforce Don't Ask, Don't Tell

In a brief order today, the Ninth Circuit lifted its previous stay of District Judge Virginia Phillips injunction against the enforcement of the military's don't ask, don't tell policy with regard to sexual orientation.   Recall that the policy codified at 10 U.S.C. § 654 requires that a member of the Armed Forces "shall be separated" from military service under one or more of the following circumstances.  

  • First, a servicemember shall be discharged if he or she "has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts." 
  • Second, a servicemember shall be discharged if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . .
  • Finally, a servicemember shall be discharged if he or she has married or attempted to marry a person "known to be of the same biological sex."

In Log Cabin Republicans v. United States, Judge Phillips found not only that the government's articulated interest in military readiness and unit cohesion was not served by the policy, but that the policy actually undermined the government interests.  Thereafter, the Ninth Circuit granted the DOJ Motion and stayed the district court's injunction (and refusal to stay the injunction) of the military's "don't ask don't tell" policy which the judge had declared unconstitutional.

Repeal DADT Training

Today, the three judge panel (Kozinski, Wardlaw, and Paez) of the Ninth Circuit lifted its stay because the "balance of hardships have changed," interestingly citing DOMA developments:

In their briefs, appellants/cross-appellees do not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.

Thus, the don't ask, don't tell policy of the military is enjoined as unconstitutional.

Oral argument is set for the week of August 29, 2011.

(thanks Jen Hogg)
[image:  May 2011, Don't Ask Don't Tell (DADT) Repeal training for enlisted, officer and civilian staff via]


July 6, 2011 in Cases and Case Materials, Current Affairs, Equal Protection, Fundamental Rights, News, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Second Circuit Rules "Prostitution Pledge" Unconstitutional

The Second Circuit today in a 2-1 opinion held unconstitutional the so-called prostitution pledge for government AIDS/HIV funding unconstitutional in Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction v.   United States Agency for International Development.

The prostitution pledge - - - actually an anti-prostitution pledge - - - is in Section 7631(f) of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. providing that no funds “made available to carry out this Act . . . may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution.”   The Act also has a provision, unchallenged in this case, that prohibits funds made available to carry out the Act being used to “promote or advocate the legalization or practice of prostitution or sex trafficking.”   The case was returning to the Second Circuit after being remanded to the district court judge, and the Circuit opinion affirmed the district judge’s finding that Section 7631(f) was an unconstitutional condition on the receipt of funding.  The panel easily found that the plaintiffs had standing.

The panel concluded that the provision, as construed and implemented by the Defendant/Appellant agencies, falls well beyond what the Supreme Court and this Court have upheld as permissible conditions on the receipt of government funds.  The panel reasoned that Section 7631(f) does not merely require recipients of Leadership Act funds to refrain from certain conduct, “but goes substantially further and compels recipients to espouse the government’s viewpoint.” 

 The panel rejected the government agencies’ expansive argument that all government funding requirements are insulated from constitutional constraints.  Instead, the panel carefully considered Regan v. Taxation With Representation, 461 U.S. 540 (1983), FCC v. League of Women Voters of California, 468 U.S. 364 (1984); Rust v. Sullivan, 500 U.S. 173 (1991) and Services Corp. v. Velazquez, 531 U.S. 533 (2001), as well as the Second Circuit Velazquez and LSC-funding cases.  In distinguishing these cases, the panel stated:

 the Policy Requirement does not merely restrict recipients from engaging in certain expression (such as lobbying (Regan), editorializing (League of Women Voters), abortion-related speech (Rust), or welfare reform litigation (the LSC cases), but pushes considerably further and mandates that recipients affirmatively say something—that they are “opposed to the practice of prostitution,” 45 C.F.R. § 89.1. The Policy Requirement is viewpoint-based, and it compels recipients, as a condition of funding, to espouse the government’s position.

The panel further distinguished Rust by stating that "the Rust Court expressly observed that “[n]othing in [the challenged regulations] requires a doctor to represent as his own any opinion that he does not in fact hold.”"  Rather," the grantee’s staff could remain “silen[t] with regard to abortion,” and, if asked about abortion, was “free to make clear that advice regarding abortion is simply beyond the scope of the program.”Unlike under these regulations where the plaintiffs "must represent as their own an opinion—that they affirmatively oppose prostitution—that they might not categorically hold."

Judicial conclusions of unconstitutional conditions that violate the First Amendment have become relatively rare.  The panel clarified that its holding is narrow:

We do not mean to imply that the government may never require affirmative, viewpoint specific speech as a condition of participating in a federal program. To use an example supplied by Defendants, if the government were to fund a campaign urging children to “Just Say No” to drugs, we do not doubt that it could require grantees to state that they oppose drug use by children. But in that scenario, the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.

The panel also noted that the mandated viewpoint was not universal: "the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate," in which "the differences are both real and substantive."  By requiring the espousal of the government's position, the program prohibited important political speech.

[image:Title page and frontispiece of Harris's List of Covent Garden Ladies (1757 – 1795) - a directory of prostitutes in Georgian London, via]


July 6, 2011 in First Amendment, Opinion Analysis, Sexuality, Speech, Spending Clause, Standing | Permalink | Comments (0) | TrackBack (0)

Caylee's Law Proposal for Federal Statute: Constitutional Power?

The acquittal of Casey Anthony on all felony charges connected to the death of her daughter, Caylee Anthony, has sparked a movement for a federal law that would make the mother's failure to report her daughter missing a felony.

The petition letter proposes: 

          Casey anthony that a new law be put into effect making it a felony for a parent, legal guardian, or caretaker to not notify law enforcement of the death of their child, accidental or otherwise, within 1 hour of said death being discovered. This way there will be no more cases like Casey Anthony's in the courts, and no more innocent children will have to go without justice.

Also, make it a felony for a parent, legal guardian, or caretaker to not notify law enforcement of the disappearance of a child within 24 hours, so proper steps can be taken to find that child before it's too late.

The case of Caylee Anthony was tragic, and there is no reason for another case like this one to hit the courts. Let's do what is necessary to prevent another case like this from happening.

The petition does not state a constitutional ground for Congress to exercise the power of enacting a general law.  As Constitutional Law students know, Congress must have a specific and enumerated power in order to enact legislation.  Generally, criminal laws are within the province of the states.  However, Congress does enact many criminal laws under the commerce clause power of the Constitution, Article I, section 8, clause 3.  

In United States v. Lopez, 514 US 549 (1995), a case involving the criminalization of gun possession in "school zones," the Court declared that the commerce clause power was limited to:

  • the channels of interstate commerce,
  • the instrumentalities of interstate commerce, or persons or things in interstate commerce, or
  • activities that substantially affect or substantially relate to interstate commerce

The Court found that the federal statute in Lopez was certainly not within the first two possibilities (there was no jurisdictional requirement, for example, that the gun had traveled in interstate commerce) and moreover did not include an activity that "substantially affected" interstate commerce.

If possession of an article of commerce such as a gun was insufficient to support a commerce clause power in Lopez, it is difficult to see how a parent's failure to report a missing child to local police authories would "substantially affect" commerce.  

A "jurisdictional hook," such as crossing state lines, would not have encompassed the actions of Florida resident Casey Anthony (pictured above via).



July 6, 2011 in Commerce Clause, Congressional Authority, Criminal Procedure, Current Affairs, Family | Permalink | Comments (4) | TrackBack (0)

Sunday, July 3, 2011

July 4: Declaration of Independence in the Supreme Court Term 2010-2011

The signing of the Declaration of Independence on July 4, 1776, is the genesis of the "Fourth of July" holiday.

Drafted by Thomas Jefferson, the document itself (or what we have come to consider the document but is actually a 1823 transcription) is on view at The National Archives, which has extended hours this weekend. The text is also available on the National Archives website.



This past term, the Declaration of Independence figured in two United States Supreme Court opinions, both decided late in the term and both in the opinion for the Court.

In Stern v. Marshall, discussing the bankruptcy courts, Justice Roberts writing for the Court included a reference to the Declaration:

Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges. The colonists had been subjected to judicial abuses at the hand of the Crown, and the Framers knew the main reasons why: because the King of Great Britain “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” The Declaration of Independence ¶ 11. The Framers undertook in Article III to protect citizens subject to the judicial power of the new Federal Government from a repeat of those abuses.

The Court concluded that the bankruptcy court - - - a federal but non-Article III court - - - lacked constitutional power to adjudicate a final order on a state law claim.

In Borough of Duryea, Pa. v. Guanieri, regarding the First Amendment right to petition, Justice Kennedy, writing for the Court, also referred to the Declaration.  After discussing the Magna Carta, the Petition of Right (1628), and practices in England, the opinion noted:

The Declaration of Independence of 1776 arose in the same tradition. After listing other specific grievances and wrongs, it complained, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” The Declaration of Independence ¶ 30.

Nevertheless, the Court rejected the right to petition under the First Amendment as the basis of a claim for relief for the original plaintiff.



July 3, 2011 in Cases and Case Materials, Courts and Judging, Current Affairs, History, Interpretation, Jurisdiction of Federal Courts, Recent Cases, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Senate Approves Executive Appointment Streamlining

The Senate voted 79-20 in favor of legislation last week that would streamline the appointment process for 170 of the 1,200 executive branch positions that currently require Senate confirmation.  The measure also would establish a Working Group on Streamlining Paperwork for Executive Nominations, which would, well, make recommendations for how to streamline paperwork for executive nominations.  We first reported on the legislation, S. 679, here.

The bill passed overwhelmingly in the Senate, but still faced vocal opposition.  We reported on David Addington's objections here; he argued that the measure shifts power from the Senate to the President and curtails one of Congress's key oversight tools.  Other opponents took a different tack, represented by a Washington Examiner editorial, and argued that the bill only addresses a symptom of a ballooning federal bureaucracy--a larger problem that goes unaddressed by the legislation. 

On the other side, Brookings Institute scholars E.J. Dionne, Jr., and William Galston took a look at the politics of the problem--and possible solutions--in their December 2010 report, A Half-Empty Government Can't Govern: Why Everyone Wants to Fix the Appointments Process, Why it Never Happens, and How We Can Get It Done.

As we wrote here, the positions exempted from Senate confirmation under the legislation are "inferior officers" (or even in some cases presidential advisors or employees).  The Appointments Clause says that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."  Article II, Section 2.  The inferior officers covered in S. 679 were tagged for Senate confirmation by law, but not by the Constitution; and so S. 679 only removed them from the constitutionally unnecessary, but practically burdensome, requirement of Senate confirmation in order to enhance the efficiency of the appointment process overall.  (The Constitution contains no formal requirements for appointment of presidential advisors or employees that are neither officers nor inferior officers.)  In other words, the bill only takes a set of positions that never needed Senate confirmation out of the class of positions that do need it.

The bill still needs House approval, but it's not clear how it will be received there.


July 3, 2011 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)