July 16, 2011
The Warren Appointment
Two days after Elizabeth Warren, the interim Consumer Financial Protection Bureau chief, appeared before the House Oversight and Governmental Reform Committee in a testy hearing on the CFPB, the White House has apparently decided against nominating Warren to lead the CFPB, according to WaPo.
Recall that congressional Republicans most recently demanded dramatic changes to the CFPB before they would confirm any nominee, leaving President Obama with a handful of options, including a recess appointment. But with the CFPB set to gain its full powers next week, under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 that established it, the lack of a permanent leader, and the ongoing disputes about the structure and leadership of the CFPB, will hamper its efforts.
Schwinn on the Constitutionality of Health Care Reform
Plaintiffs in this and other cases, and other opponents in the public debates, have all made novel Tenth Amendment and federalism arguments as part of their challenges to the individual mandate. These have not received the same attention afforded to the Commerce Clause argument, but they are every bit as important, and they are every bit as novel—without basis in text, history, or jurisprudence. The cases challenging the individual mandate have thus invited the courts to give new shape to the Tenth Amendment and federalism principles—a shape that reflects the opponents' radical and ahistorical view that the Constitution enshrines libertarianism and creates a government of limited and constrained powers. The Sixth Circuit, by largely not addressing these claims, properly declined this invitation.
July 15, 2011
Court Upholds TSA's Use of Body Scanners
A three-judge panel of the D.C. Circuit today rejected arguments in Electronic Privacy Information Center v. U.S. DHS that the Transportation Security Administration's use of advanced imaging technology (instead of magnetometers) violated the Fourth Amendment (and various federal statutes). The court also ruled that the TSA failed to use notice-and-comment rulemaking in adopting the scanner; but the court declined to vacate the rule, opting instead to remand to the TSA for further proceedings. (The court declined to say whether the TSA might invoke the Administrative Procedure Act's "good cause" exception to notice-and-comment rulemaking, so it's not clear that the agency will use notice-and-comment rulemaking.) The ruling validates the TSA's use of body scanners at airports, but it also requires the TSA to take a second look at the issue--at least to determine whether use of the scanners meets the APA's good cause exception.
As to the Fourth Amendment, the court ruled that TSA airport screenings are "administrative searches," subject to a balancing test under the Fourth Amendment between the degree to which the screening intrudes upon an individual's privacy and the degree to which it's needed for a legitimate government interest. Here's what the court said about that balance:
[It] clearly favors the Government here. The need to search airline passengers "to ensure public safety can be particularly acute," and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.
[Image: Millimeter Wave Technology Image, from TSA: How it Works]
July 14, 2011
A good day to review the current French Constitution.
[image: Proclamation de la Constitution, place du Marché des Innocens, le 14 septembre 1791." Plate from "Collection complète des tableaux historiques de la Révolution française", Auber, Paris, 1804, via].
July 13, 2011
Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional
Standing seems easily established. Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired.
The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage. Indeed, Corey Brown, the sole male, is legally married to only one of the women. This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly:
(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
Section 2 of the statute provides that bigamy is a felony of the third degree.
The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.
Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause. For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along."
Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation.
One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002). Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.
Gordon discusses the history behind the case of Reynolds v. United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated. But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."
On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.
As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.
July 13, 2011 in Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Privacy, Religion, Sexuality, Standing, Television | Permalink | Comments (2) | TrackBack
Federal Judge Enjoins NYC Local Law 17 Regulating Deceptive "Pregnancy Service Centers"
New York City passed Local Law 17 earlier this year, set to become effective tomorrow, July 14, 2011, based on its finding that some so-called
pregnancy services centers in New York City engage in deceptive practices, which include misleading consumers about the types of goods and services they provide on-site, misleading consumers about the types of goods and services for which they will provide referrals to third parties, and misleading consumers about the availability of licensed medical providers that provide or oversee services on-site. Such deceptive practices are used in advertisements for pregnancy services centers, which are misleading as to the services the centers do or do not provide.
Plaintiffs, a group of pregnancy services center that oppose abortion and emergency contraception, sought a preliminary injunction based upon Local Law 17's infringement of their First Amendment rights. In a 32 page opinion today, District Judge William Pauley enjoined Local Law 17 in Evergreen Association (d/b/a EMC Frontline Pregnancy Centers) v. City of New York.
There was disagreement over the type of speech regulated by Local Law 17, and thus the level of scrutiny the court should apply. The City argued that Local Law 17 regulated commercial speech, and moreover the law was aimed only at preventing deception and requiring purely factual disclosures. The City characterized the pregnancy centers speech as commercial because (1) they advertise goods and services—e.g., diapers, clothing, counseling, pregnancy testing, and ultrasounds—that have commercial value; and (2) they receive something of value in return for those goods and services, namely, “the opportunity to advocate against abortion and either delay or prevent the decision to terminate a pregnancy.”
The judge found neither argument persuasive. The judge reasoned that the pregnancy services centers do not act out of commercial motives, instead, their "missions and by extension their charitable work—are grounded in their opposition to abortion and emergency contraception," and while it may be true that increase their “fundraising prowess” by attracting clients, as the City suggested, they do not advertise “solely” for that purpose. Rather, their "speech on reproductive rights concerns an issue prevalent in the public discourse," citing Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011).
The judge therefore aplied strict scrutiny. As to a compelling governmental interest, the judge essentially found this prong of the analysis unneccesary because of his conclusion regarding the lack of narrow tailoring. However, the judge did write that he
recognizes that the prevention of deception related to reproductive health care is of paramount importance. Lack of transparency and delay in prenatal care can gravely impact a woman’s health. [citation omitted]. Unlicensed ultrasound technicians operating in pseudo-medical settings can spawn significant harms to pregnant, at-risk women who believe they are receiving medical care. Plaintiffs’ categorical denial of the existence of any such deception—and refusal to acknowledge the potential misleading nature of certain conduct—feigns ignorance of the obvious.
The judge found that the disclosure requirements were "over-inclusive": the advertisement need not be deceptive for Local Law 17 to apply, any advertisement offering pregnancy related services had to include disclosures regarding the (non)availaibility of medical personnel. The judge also noted that the City had other avenues to achieve its purpose other than mandating disclosure by the pregnancy centers themselves: the City controls the right-of-way and could erect a sign on public property outside each pregnancy service center encouraging pregnant women to consult with a licensed medical provider; the City is also perfectly capable of conveying its message through a public service advertising campaign; the City could prosecute those centers that have engaged in deceptive practices. Additionally,
this Court notes that the City could impose licensing requirements on ultrasound technicians (or lobby the New York State legislature to impose state licensing requirements). Of all of the services provided by Plaintiffs, ultrasounds are the most potentially deceptive: a woman visiting a facility that perfonns and/or interprets ultrasounds could reasonably form the impression that she has received medical treatment. However, by permitting ultrasound examinations to be performed only by licensed professionals, the City could regulate the manner in which those examinations are conducted and curb any manipulative use. Such licensing schemes are not unprecedented; two states already require ultrasounds to be performed by a licensed professional. N.M. Stat, Anno. §S 61-14E-l to 14E-12; Or. Rev. Stat. § 688.405, 688.415.
Indeed, the fact that the persons who staff the pregnancy service centers are not "professionals," led the judge to conclude that their speech is not "professional speech" that could be more easily regulated.
Finally, Local Law 17's definition of a “pregnancy services center” that has the “appearance of a licensed medical facility” (and would therefore have to disclose it was not), was unconstitutionally vague. While Local Law enumerates factors, the "fundamental flaw is that its enumerated factors are only “among” those to be considered by the Commissioner in determining whether a facility has the appearanceof a licensed medical center." This is especially problematic for the judge given "the fact that Local Law 17 relates to the provision of emergency contraception and abortion—among the most controversial issues in our public discourse—the risk of discriminatory enforcement is high."
(H/T Jen Hogg)
(image: ultasound machine via)
Conference on the Constitutional Convention
Fix Congress First is hosting a Conference on the Constitutional Convention September 24 and 25, 2011, at Harvard University. The Conference is co-chaired by Lawrence Lessig and Mark McKinnon; Lessig and McKinnon make their case for an Article V convention, and frame some of the issues for the Conference, here.
According to the Conference web-site:
On September 24th, people from across America and across the political spectrum will convene at Harvard University to discuss the advisability and feasibility of organizing towards a Constitutional Convention. While the conference's lead organizers are proponents of a convention--and are particularly passionate about the need to reduce the influence of private money in politics--we actively encourage the participation of those who support a convention for other reasons, and those who oppose holding a convention at all.
[Image: Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy, East Stairway, U.S. House of Representatives, U.S. Capitol Building.]
Parental Fourteenth Amendment Right Overrides Claims of CoParent's Child Custody
Relying on the "constitutionally protected due process right" of parents to "make decisions concerning the care, custody, and control of their children" and the principle that the "parents’ right to custody of their children is paramount to any custodial interest in the children asserted by nonparents," citing Troxel v. Granville, 530 U.S. 57, 66 (2000), as well as Ohio cases, the Ohio Supreme Court grappled witha lesbian co-parenting issue in its opinion in In re Mullen, decided July 12. (h/t How Appealing).
In a closely divided 4-3 opinion, the majority nevertheless recognized that "a parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-custody agreement." Yet proving the existence of the terms of such an agreement, even when there are written documents, seems execeedingly difficult. There was contradictory evidence, but the court affirmed the lower courts' conclusions that there was no agreement for shared custody. The court rejected the argument that “coparent," as used in documents, equaled “shared legal custody” and rejceted the claim "that because the parties’ statements and various documents used the “coparent” terminology, the parties therefore clearly agreed to “shared legal custody.”
“Coparenting” is not synonymous with an agreement by the biological parent to permanently relinquish sole custody in favor of shared legal parenting. “Coparenting” can have many different meanings and can refer to many different arrangements and degrees of permanency. The parties’ use ofthe term, together with other evidence, however, may indicate that the parties shared the same understanding of its meaning and may be considered by the trial court in weighing all the evidence.
The dissent cited In re Custody of H.S.K.-H. (Holtzman v. Knott), 533 N.W.2d 419 (WI. 1995). The court in Holtzman had articulated the influential four part functional coparenting test sufficient to overcome an absolutist version of the biological parent's Fourteenth Amendment right: 1) the legal parent fostered and consented to development of a parent-like relationship between the petitioner and the child; 2) the petitioner and child lived together in the same household; 3) the petitioner assumed the obligations of parenthood by taking responsibility for the child’s care, education, and development, including but not limited to financial contribution, and did not expect financial compensation; 4) the petitioner has been in a parent-like relationship a sufficient amount of time to have a bonded relationship.
In New York, the court in Alison D. v. Virginia M., 572 N.E.2d 27, 29 (N.Y. 1991), held that a co-parent is a non-legal “parent” and no “parent” with any claim to visitation or shared custody under state law: the biological parent's Fourteenth Amendment right is inviolate. New York's same-sex marriage statute, which goes into effect later this month, will certainly have an effect on Alison D.
[image: The Cholmondeley sisters and their swaddled babies, circa 1600, via]
July 12, 2011
Same-Sex Marriage in NY & the Religious Exemption: Town Clerk News
As we've previously discussed, the religious exemption in the NY same-sex marriage statute does not apply to public employees, including town clerks who issue marriage licenses. One town clerk at first said she would not issue licenses.
Today's news has a different town clerk resigning: "I have been in contact with Jason McGuire from New Yorkers for Constitutional Freedoms, our Town Attorney, Richard Lewis, and a Constitutional Lawyer regarding the Marriage Equality Act that was passed June 24, 2011. There was no protection provided in the legislation for Town Clerks who are unable to sign these marriage licenses due to personal religious convictions, even though our US Constitution supports freedom of religion." The letter therafter includes Bible passages.
July 11, 2011
White House Moves to Streamline Independent Agencies' Regs
President Obama issued an Executive Order today designed to "streamlin[e], improv[e], and eliminat[e] regulations" of independent regulatory agencies, including the Consumer Product Safety Commission, the Federal Trade Commission, the Federal Communications Commission, and the Securities and Exchange Commission. The EO is directed to get independent agencies on board with regulatory reforms that the administration required in its earlier EO, issued in January. (OIRA Chief Cass Sunstein told the House Energy and Commerce Committee in June that no independent agencies had submitted a plan under the earlier EO.)
The EO says that each independent regulatory agency within 120 days
should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
The White House touts the EO as an "historic initiative" that will stimulate job creation and promote economic growth.
Like the January EO, the new EO leaves plenty of wiggle room ("consistent with law and reflecting its resources and regulatory priorities") and leaves the review and plan to the agencies themselves. But in contrast to the mandatory language in the January EO, the new EO, aimed exclusively at independent agencies, appropriately uses hortatory language ("should develop and release to the public a plan"), stepping back from directing the independents.
For a very recent argument that the President lacks directive authority even for non-independent agencies, check out Prof. Bob Percival's (U. Md.) forthcoming piece in the Fordham Law Review, Who's in Charge? Does the President Have Direct Authority Over Regulatory Decisions?
[Image: Man Controlling Trade, Model, Federal Trade Commission Building, Smithsonian Institution]
Ninth Circuit to Federal Government: State Your Intentions Regarding Defending the Constitutionality of DADT
In a brief order today from the Clerk of the Court of the Ninth Circuit in Log Cabin Republicans v. United States, the Ninth Circuit essentially asks the federal government to state its intentions.
Just last week the Ninth Circuit lifted the stay of the district judge's injunction against the enforcement of the military's "don't ask, don't tell" policy relating to sexual orientation.
Today's order provides that after "reviewing the briefs filed by the parties, it appears to the merits panel
that the United States is not prepared to defend the constitutionality" of the don't ask, don't tell statute, 10 U.S.C. § 654. The order continues:
The Government, of course, may refrain from defending the constitutionality of “any provision of any Federal statute.” 28 U.S.C § 530D(a)(1)(B)(ii) (providing that the Attorney General shall submit a report to Congress outlining his decision to refrain from defending a Federal statute); see e.g., Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011), filed as Attachment A to the Motion of Appellee / Cross-Appellant Log Cabin Republicans to Vacate Stay of Injunction, Dkt. No. 107, (May 10, 2011). If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae to participate in oral argument in support of constitutionality pursuant to Federal Rule of Appellate Procedure 29(g).
The parties have ten days to respond by letter (not more than 10 pages or 2800 words!) as follows:
(1) the Government is hereby ordered to advise the court whether it intends to submit a report to Congress under § 530D(a)(1)(B)(ii) outlining its decision to refrain from defending § 654;
(2) the Government is further ordered, if such report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding, as provided in § 530D(b)(2);
(3) the parties are ordered to show cause why this case should not be dismissed as moot, either immediately or upon such time as the President certifies that all conditions for the repeal of § 654 set forth in the Don’t Ask, Don’t Tell Repeal Act have been satisfied.
July 10, 2011
Congress May Extend FBI Director's Term
The Office of Legal Counsel released an opinion last month that concluded that congressional extension of the term for FBI Director Robert S. Mueller III does not violate the Constitution.
Director Mueller was nominated by President Bush and unanimously confirmed by the Senate. He was sworn in on September 4, 2001. But the Director position only has a ten-year life; Mueller's appointment would thus expire on September 4, 2010. President Obama proposed extending the term by two years in May; Senator Leahy introduced legislation (now pending in the Senate) that would do just that.
The OLC opined that Congress has authority to enact Leahy's bill under Article I, Section 8, Clause 18, which authorizes Congress to establish offices and fix their terms:
To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensation--all except as otherwise provided by the Constitution.
According to the OLC, the extension is just an extension of Mueller's original appointment by President Bush; it's not a new congressional appointment--an action that would surely unconstitutionally interfere with the President's authority under the Appointments Clause. (The Appointments Clause vests the President with authority to nominate officers and, with the advice and consent of the Senate, to appoint them.)
The OLC for one brief, seven-year period (1987 to 1994) did hold the view that congressional extensions for incumbent officers were new appointments, thus violating the Appointments Clause. But in 1994 the Office re-adopted the traditional view, "that Congress, by extending an incumbent officer's term, does not displace and take over the President's appointment authority, as long as the President remains free to remove the officer at will and make another appointment." Op. at 2. But under the traditional view, Congress may not extend the term of those offices with protection above at-will employment, because such an extension would mean that the President couldn't replace the incumbent with a nominee of his or her choice. (The courts do not seem to distinguish by tenure-protection and have upheld congressional extensions even of protected offices, such as bankruptcy judges. See, e.g., In re Benny, 812 F.2d 1133, 1141 (9th Cir. 1987).)
The OLC interprets the FBI Director's appointment not to restrict the President's authority to fire the incumbent, and therefore a congressional extension does not violate the Appointments Clause. (It of course wouldn't violate the Appointments Clause under the Ninth Circuit's approach in In re Benny either.)
CFPs: Opportunities to Expand Constitutional Scholarship
Writing about Race? Justice? Translation?
Here are three CFPs that might be of interest, especially for work that is interdisciplinary.
The interdisciplinary journal, University of Florida Journal of Law and Public Policy, is accepting submissions for December 2011 special edition on race, deadline August 28. "Our goal is to inform discussions of race in the public policy arena by highlighting key legal challenges facing ethnic and racial minorities. We are seeking original works that provide thought provoking commentary on issues of race and awaken the consciousness of readers." Submissions to EIC Yvette Sturkes, ysturkes AT ufl.edu.
The third annual Law & Literature Conference at John Jay, CUNY, scheduled for March 2012 is soliciting submissions. The theme is The Idea of Justice, after Amartya Sen's book of the same name and Nobel Prize in Economics winner Sen will be the keynote speaker. Abstract deadline is January 2012. Conference website here, updates forthcoming. Other law and literature CFPs are available from the wonderful Christine Corcos over at Law & Humanities Blog.
The annual meeting of philoSOPHIA, known for its new journal of the same name, will be in April 2012 at Miami University in Ohio. The conference "will have as its theme ‘Translation,’ broadly conceived, taking the work of translation to include translating across disciplines, genres, traditions, texts, historical epochs, and languages." Submissions of abstracts deadline is December 1, 2010. More information here.
[image: desk of former Florida governors via]