Constitutional Law Prof Blog

CALI Lessons for Constitutional Law

Finalizing your syllabus?  Don't forget to consider adding or mentioning CALI - - - the Center for Computer-Assisted Legal Instruction - - - lessons to your course. 

 

For example, one lesson that might be appropriate to kick-off the semester is Marbury v. Madison (full disclosure: I am the author), as well as many other topics to engage students in interactive learning throughout the course.  

CALI also has a new look, is compatible with ipad, and easier to use for students. There is a Constitutional Law section, but depending upon a particular syllabus, topics in Federal Courts might also be relevant.

RR
[image: portrait of Marbury via]

Ninth Circuit Says Plaintiffs Lack Standing to Challenge Individual Health Insurance Mandate

With all the to-do this week about the Eleventh Circuit's ruling in State of Florida v. HHS that the individual health insurance mandate in the Affordable Care Act exceeds congressional Commerce Clause power, it was easy to overlook the Ninth Circuit's ruling in Baldwin v. Sebelius last Friday that the plaintiffs lacked standing to challenge the mandate. 

The Ninth Circuit's ruling comes just a couple weeks after the Third Circuit denied standing in a similar  challenge.  But the plaintiff's case in the Ninth Circuit was even weaker.  The plaintiffs in Baldwin were an individual and the Pacific Justice Institute.  The individual, Baldwin, alleged only that he would have to research whether he'd be covered by the mandate--not that he currently lacks health insurance and would therefore have to purchase it, e.g.  The court said this wasn't enough to show a concrete injury in fact.

The court also ruled that the Pacific Justice Institute lacked standing.  The court said that the individual mandate doesn't apply to employers, that the Institute failed to allege that it had over 50 employees so as to fall within the employer shared responsibility provision, and that the Institute raised its associational standing claim too late in the game (only in its reply brief).

SDS

[Image: Frank Duveneck, Nude Standing, 1892, Wikimedia Commons]

Court Upholds Conviction of Former Airborne Infantryman Against Separation of Powers Challenge

A three-judge panel of the Sixth Circuit ruled Tuesday that a conviction against an Airborne infantryman under the Military Extraterritorial Jurisdiction Act did not violate separation of powers.  The conviction stands.

The case, U.S. v. Green, arises out of a gruesome and horrific multiple rape and multiple murder of Iraqi civilians committed by Green and two colleagues in Iraq.  The Army charged Green's colleagues under the UCMJ, but the Army discharged Green (for a personality disorder).  The government then charged and convicted him using the MEJA, a law that permits the government to prosecute former members of the military in Article III courts for crimes committed overseas while they were in the military.  (The MEJA thus closes a loophole for former military who commit crimes overseas: They can't be charged under the UCMJ, but they can't be charged under U.S. criminal law, either; MEJA allows the government to prosecute.  You might ask why the Iraqi authorities couldn't charge Green: Because Paul Bremer's Coalition Provisional Authority Order Number 17 says that coalition forces "shall be immune from the Iraqi legal process.")

Green argued that his conviction was unconstitutional, because MEJA violated the separation of powers and the nondelegation doctrine (among other things).  The Sixth Circuit disagreed.  It said that MEJA certainly expanded executive branch power, but not at the expense of any other branch.  MEJA is no different than, say, any new criminal law that Congress might enact.

The ruling is utterly unremarkable and unsurprising.  But the government's position contrasts starkly with its position in the Seventh Circuit's recent decision in Vance v. Rumsfeld.  In Vance, the Seventh Circuit ruled that a Bivens claim for overseas torture by U.S. citizens against Donald Rumsfeld can move forward, despite the government's vigorous arguments that separation-of-powers considerations prohibit a Bivens remedy, because courts have no business poking their noses around issues of national security, foreign policy, war-making, and the like.  As the Seventh Circuit noted, the government's extreme position in that case would also mean that someone like Green couldn't be on the receiving end of a Bivens claim (even if his victims were U.S. citizens). 

The separation-of-powers concern in Vance, of course, was different than in Green.  The government argued in Vance that the courts' involvement in such matters intruded upon executive authority.  The government had no such concern in Green, apparently: It ran to the courts, using MEJA, to prosecute Green, not at all worried that such a prosecution would inappropriately mire the courts in national security concerns (as in Vance).  A double standard?  You decide.  But it does seem that the government would have a hard time squaring its prosecution of Green with its position in Vance.

SDS

[Image: Francisco de Goya, Desastre de la Guerra, Wikimedia Commons]

What's Rational About Rational Basis Review?: Same-Sex Marriage Litigation in Perspective

This is from SCOTUSblog's  same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.

My contribution focuses on the rational basis standard of review:

The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.

There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation.  However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis.  Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.”   Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”

Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court.   Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications.   The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.

 

It’s most likely that the Supreme Court will use rationality review, or some form of it, when reviewing the exclusion of same-sex couples from marriage.   The classic formulation of the rational basis test is an ends/means test requiring that the government interest must be “legitimate” and the means chosen to effectuate that interest must be “reasonably” related to that interest.  This is the formulation for review under the equal protection and due process challenges at issue in same-sex marriage cases.  Rational basis is also operative when courts review challenges to laws based upon the First Amendment and the Fifth Amendment’s Takings Clause. A rational basis test is also used when the Court reviews whether Congress has exceeded its enumerated powers under the Commerce Clause (United States v. Lopez),  the Necessary and Proper Clause (United States v. Comstock), or the Copyright Clause (Eldred v. Ashcroft).

Even when there is agreement on the articulation of the rational basis test, which is not as consistent as one might hope, its application might be characterized as irrational.   In Ysursa v. Pocatello Educ. Ass’n, the Court deemed legitimate a state interest in avoiding the appearance of state involvement in partisan politics, and found that this interest was reasonably related to a prohibition of payroll deductions for union dues by public  – and by private – employers.   In Railway Express Agency, Inc. v. New York, the Court deemed legitimate a government interest in traffic safety, but held the city could reasonably believe that drivers would be less distracted by owner-advertising on vehicles and more distracted by the same advertising if the vehicle was owned by someone else.   In the 1896 case of Plessy v. Ferguson the Court held that the Louisiana legislature’s mandate of separation of the races on railways was “reasonable”; the approved purpose was conforming to the “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”

In the context of laws that limit legally recognized marriages to opposite-sex couples, the proffered legitimate goal telescopes into an interest in maintaining heterosexual hegemony.   For example, in seeking to “defend” marriage against attack by non-heterosexuals, Congress specifically articulated its purposes of encouraging responsible [heterosexual] procreation and child-bearing; defending and nurturing the institution of traditional heterosexual marriage; defending traditional [heterosexual] notions of morality, and preserving scarce resources [for heterosexuals].

Yet whether or not one considers these interests “legitimate” is not an inquiry solved by logic.  Instead, it rests upon whether one believes that heterosexuality is the preferred form of human sexuality ­and whether one believes the government, federal or state, should act to guarantee heterosexuality.   Moreover, these interests raise the specter that they are not legitimate because they are based on animus or the desire to harm a politically unpopular group of gay men and lesbians.  In United States Department of Agriculture v Moreno, the Court found a congressional definition of “household” was not legitimate because the legislative history indicated the purpose of the definition was to exclude “hippies” from receiving food stamps.

This purpose prong of the rational basis test applied to DOMA and Proposition 8 also raises the problem of the governmental entity itself.   Congress explicitly stated its interests in DOMA, although in Gill v. Office of Personnel Management the Obama Administration, then defending DOMA, sought to update the congressional interests.  As Judge Tauro noted, the United States was arguing that “the Constitution permitted Congress to enact DOMA as a means to preserve the ‘status quo,’ pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage.”  Judge Tauro rejected such an interest as legitimate given the federal government’s exceedingly limited role in matters of marriage and family law, a subject within the province of the states under the Tenth Amendment.   Judge Tauro might also have analogized to the gender classification case of United States v. Virginia (VMI) in which the Court repudiated governmental justifications that were “invented post hoc in response to litigation,” albeit under a higher standard than rational basis review.

Because Proposition 8 was a state-wide voter referendum, the government interests are not articulated with specificity.  If discerning legislative intent is difficult, certainly discovering intent of voters is even more difficult.  Moreover, because the state of California refused to defend Proposition 8 in the federal challenge, it was left to the proponents in Perry v. Schwarzenegger to articulate the interests of the “government.”  According to pleadings and quoted by Judge Walker, these interests were reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; proceeding with caution when implementing social changes; promoting opposite- sex parenting over same-sex parenting; protecting the freedom of those who oppose marriage for same-sex couples; treating same-sex couples differently from opposite-sex couples; and “any other conceivable interest.” Presenting only two witnesses, both experts, the proponents focused on the interest of heterosexual marriage as producing offspring who were biologically related to both partners in the marriage.

Assuming there is a legitimate interest, applications of the rational basis test proceed to determine whether the means chosen can be said to reasonably (or rationally) serve that interest. For example, if one accepts as a legitimate governmental goal the encouragement of heterosexual procreation and child-rearing, then the extension of marriage to opposite-sex couples who do not (or cannot) have children becomes subject to different notions of what is “reasonable.”  The denial of marriage to same-sex couples who do have children also becomes subject to different notions of reasonableness, especially as it connects to heterosexual procreation and marriage.  For Judge Walker in Perry v. Schwarzenegger, the logical link was non-existent: “Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.”  In other words, the denial of marriage to some people will not affect the actions of other people.

Yet another court found that that the inducement of marriage could rationally be reserved for opposite-sex couples because they needed it more.  In 2006, New York’s highest court in Hernandez v. Robles contended that because heterosexual relationships lead to children and that because “such relationships are all too often casual or temporary,” the legislature could “choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.”  The court reasoned that this inducement rationale “does not apply with comparable force to same-sex couples” who can become “parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.”  Thus, the New York Legislature “could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more.”  This past June, the New York Legislature apparently changed its sense of the inducement rationale and passed the Marriage Equality Act. The New York State Attorney General has filed an amicus brief in Windsor advocating the unconstitutionality of DOMA Section 3 because New York has “consistently expressed and implemented its commitment to equal treatment for same-sex couples.”  Interestingly, the brief does not mention Hernandez v. Robles.

The existence of a reasonable relationship (or any relationship at all) and the legitimacy of the purpose are not simple logical deductions accomplished at the level of proof theory mathematics.  The Proposition 8 proponents’ motion to vacate the judgment in Perry after Judge Walker revealed his sexual minority status expresses this reality.  In denying the motion, the new district judge assigned to the case now known as Perry v. Brown stated a judge could be impartial and was “capable of rising above any personal predisposition.”   However, there is also a larger problem.  If Judge Walker is disqualified for “bias,” then all judges must be.  While bias allegations are more likely to be leveled against minorities, including women, as the judge ruling upon the motion to vacate noted, no decision-maker is immune.  Indeed, the purposes and reasonable relationships argued by the proponents of Proposition 8 and the BLAG now defending DOMA implicate everyone.  If one is married or not married, if one is a parent or not, if one is a parent who is married or not, if one was a child of parents who were married to each other throughout one’s childhood or not, one has particular experiences and interpretations of those experiences that would influence one’s assessment of “rational basis.”

This does not mean that there is unbridled discretion and the absence of any standards.  However, it does mean that the interests one is willing to recognize as legitimate for governmental action and the inferences one is willing to make are not purely rational.  Marriage, family, and sexuality are not susceptible to scientific calculations.   Neither is law.

 

RR

The ERA as 28th Amendment: Ann Bartow on Constitutionalizing Women's Rights

Professor Ann Bartow (pictured) argues that the Constitution needs a 28th Amendment - - - the ERA. 

In an article almost as pithy as the ERA itself,  Bartow discusses the history of women's rights, the failed ERA, and why current constitutional law and statutory enactments fail to adequately secure gender equality.  She also invokes current 14th Amendment controversies including so-called "birthright citizenship."

Bartow concludes:

A commitment to equality across gender identification, gonads, chromosomes, or any other maker of sex that is specifically articulated in a Twenty-Eighth Amendment to the United States Constitution would productively cut off debates about the Fourteenth Amendment and ignite engagement in projects pitched at increasing substantive equality for all
persons.

Bartow's essay is part of a Constitutional Amendment Symposium by Tennessee Law Review (not yet available on the law review website) that promises some interesting constitutional interventions.

At nine pages, this would make an excellent first assignment for courses in Constitutional Law, Individual Rights, and Gender courses.

RR

South Africa Constitutional Court Controversy

Paragraph 174 of the South African Constitution allows the President "as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly" to  appoint the Chief Justice and the Deputy Chief Justice of the South African Constitutional Court.

Zuma previously suggested extending the term of Chief Justice Sandile Ngcobo, but the South African Constitution is clear regarding the twelve year limit for justices.

President Zuma's just announced choice, Justice Mogoeng Mogoeng, (pictured right) has been greeted with disbelief by many South African constitutional scholars and court-watchers.  Mogoeng is a justice of the Con Court, but one of its most junior members and one of its most conservatives ones.

Our South African colleague Pierre deVos of Constitutionally Speaking has an excellent reaction piece clarifying that Zuma's opinion may be unwise but is constitutionally permissible, although it might be that the more progressive members of the parties in the legislature will take their consultative responsibilities very seriously.

RR

Florida Supreme Court to Governor Rick Scott: Unconstitutional Executive Order Suspending Agency Actions

In an opinion today, Wiley v. Scott, the Florida Supreme Court dealt a blow to Governor Rick Scott's attempt to - - - as the Governor's website describes it - - - fulfill a campaign practice by "signing executive orders to freeze job-killing regulations."  In Executive Order 11-01 entitled "Suspending Rulemaking and Establishing the Office of Fiscal Accountability and Regulatory Reform" Scott established the office, known as OFARR, within the Executive Office of the Governor and directed the suspension of rulemaking except as approved by OFARR.   After a lawsuit was brought but before today's opinion, Scott superceded EO 11-01 with Executive Order-11-72, in which he no longer used the word "suspend." The Florida Supreme Court deemed this change more apparent than real, labeling it "nothing more than a sleight of hand."  

In Wiley, the Florida Supreme Court (pictured below) issued the extraordinary writ of quo warranto - - - a proper writ, according to a previous case, to  "challenge the 'power and authority' of a constitutional officer, such as the Governor."

Having agreed to consider the case, the per curiam opinion, over two dissents, forumulated its "precise task" as being  "to decide whether the Governor has overstepped his constitutional authority by issuing executive orders which contain certain limitations and suspensions upon agencies relating to their delegated legislative rulemaking authority and the requirements related thereto."

The Florida Supreme Court found that the Governor usurped the legislative role under the strong separation of powers principles in the Florida Constitution.   

Rulemaking is a derivative of lawmaking. An agency is empowered to adopt rules if two requirements are satisfied. First, there must be a statutory grant of rulemaking authority, and second, there must be a specific law to be implemented. 

After an extensive analysis, the court concluded that the Governor‘s executive orders, to the extent each suspends and terminates rulemaking by precluding notice publication and other compliance with the state administrative procedure act absent prior approval from OFARR, infringe upon the very process of rulemaking and encroach upon the Legislature‘s delegation of its rulemaking power.  The court noted that whether "the Governor exceeded his authority derived from state law does not turn upon the number of times the encroachment occurred or whether petitioner was personally affected by it."

Two Florida Supreme Court Justices dissented, joining each other's opinions but writing separately.  Justice Ricky Poston's dissent is longest, nearly as lengthy as the court's per curiam majority opinion.  Poston relies on Article IV, section 1(a) of the Florida Constitution that provides that the "supreme executive power shall be vested in a governor" and argues that the Governor has broad powers.  Polston also argues that because EO 11-01 has been superceded and OFARR is approving rulemaking, the Florida Supreme Court's opinion is merely advisory.

The opinion, however, relies upon state constitutional separation of powers provisions and principles to invalidate the acts of a controversial governor seeking to create a super-administrative agency within the Executive branch to control all other agencies.  As such, it might be read with interest by other state supreme courts, and perhaps other governors.

RR

 

The Limits of DeShaney: Fifth Circuit Finds Special Relationship

Over a vigorous dissent from Judge Carolyn Dineen King, the two other judges on the panel in Doe v. Covington County School District, found the special relationship test of DeShaney v. Winnebago County, 489 U.S. 189 (1989) was met.

In its opinion earlier this month, the Fifth Circuit recognized that DeShaney made clear that as a general matter, a State’s failure to protect an individual against private violence is not a violation of the Fourteenth Amendment's Due Process Clause, with the only exception being when the State has a "special relationship” with the person.  In DeShaney, the Court found that no such "special relationship existed even when state social workers investigated a case of child abuse, repeatedly, but returned the child to the father's custody and the father beat the child into a comatose state.

As the Fifth Circuit majority phrased the issue in Doe, it was considering whether there are "circumstances under which a compulsory-attendance, elementary public school has a “special relationship” with its nine year-old students such that it has a constitutional “duty to protect” their personal security."

The Fifth Circuit found that such circumstances do exist in the allegations of Doe's complaint, which the trial court had dismissed under DeShaney.   The fact that she was nine years old was indeed important to the court, for it "made Jane wholly dependent on the School for her safety," and the school, according to the court, "thus assumed the duty to protect her."

However, the other circumstances, as alleged in the complaint, also contributed to the court's finding of special circumstances.  The school allowed a man to "check out" Jane Doe from school and return her later in the day on six separate occassions, simply signing her out as her father, and once as her mother.  The man was not on the "permission list," was not related to Jane Doe, and the school employees did not ask for any idenitification or check the "permission list."  The man took Jane from school, sexually molested her, and then returned her to school.

On the majority's view, the school was not passive, but "affirmatively forced" Jane Doe into the sole custody of a man from whom she could not protect herself.  Thus, it distinguished Jane Doe's situation from the passivity of the caseworkers in DeShaney.

Judge King's dissent argues that Jane Doe's age is irrelevant and disputes the majority's characterization of Jane Doe being "forced" to leave with a "stranger."  While there may have been negilgence, Judge King notes, this does not rise to the level of a constitutional matter.

The "special relationship" requirement to escape DeShaney's harsh rule has generally only been extended to persons who are imprisoned or in foster care, based on the state's complete control over the person.  A majority of the Fifth Circuit has found that during the school day, under laws requiring complusory education, a school also has complete control - - - or sufficient control to not allow unauthorized persons to remove children from school during the school day.

RR
[image: "Schoolboy" by Albert Anker - Schulknabe, 1881, via]