Saturday, August 27, 2011

Hurricane Irene and the Constitutional Duty to Protect the Incarcerated

As New York City braces for Hurricane Irene, with the transit system being halted since noon today, and 300,000 people ordered to evacuate low-lying areas in the five boroughs, according to NYC Mayor Michael Bloomberg there are absolutely no plans to address the situation of inmates at the city's main detention center on Rikers Island. 

800px-Rikers_Island_from_the_air Rikers Island (pictured right) is indeed an island; it is located in the East River between Queens and the Bronx, due east of Manhattan. It practically touches the runways of LaGuardia airport, from which all flights have been suspended today and Sunday.

As Solitary Watch reported yesterday:

more than three-quarters of Rikers Island’s 400 acres are built on landfill–which is generally thought to be more vulnerable to natural disasters. Its ten jails have a capacity of close to 17,000 inmates, and normally house at least 12,000, including juveniles and large numbers of prisoners with mental illness–not to mention pre-trial detainees who have yet to be convicted of any crime. There are also hundreds of corrections officers at work on the island.

Today, the Center for Constitutional Rights (CCR) urged the City to act immediately to protect the prisoners. 

In Lessons from Hurricane Katrina: Prison Emergency Preparedness as a Constitutional Imperative, published in University of Michigan Journal of Law Reform and available on ssrn, Professor Ira Robbins considers the fate of the more than 8,000 residents of the Orleans Parish Prison (OPP) when Hurricane Katrina struck. Robbins notes that despite a "mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP. When the inmates were finally evacuated from OPP, they suffered further harm, waiting for days on a highway overpass before being placed in other correctional institutions, where prisoners withstood exposure to the late-summer Louisiana heat and beatings at the hands of guards and other inmates"

Robbins argues that the situation was not merely tragic, but was unconstitutional - - - violating the prisoners Sixth and Eighth Amendment rights, as well as international human rights standards.  He advocates that change should occur through a mix of litigation and legislation, including the establishment of emergency courts "to enable the administration of justice to resume promptly following serious natural or man-made disasters."  

In his 2008 article, Robbins urged government officials to "internalize the lessons of Hurricane Katrina, which demonstrated the consequences of inadequate preparation and planning for prisoners' safety during and after a major emergency."

New York City does not seem to be heeding Professor Robbins' advice.

[aerial photo of Rikers Island via]

August 27, 2011 in Current Affairs, Fundamental Rights, News, Sixth Amendment | Permalink | Comments (1) | TrackBack (0)

Friday, August 26, 2011

White House Publicizes Push-Back on Hold Ups of Judicial Nominees

The White House recently posted this info-graphic (below) on the administration's successes in judicial nominees and on congressional footdragging.  According to the stats, President Obama has seen only 62.6% of his nominees confirmed (compared with 86.8% for President George W. Bush, 84.2% for President Clinton, and 77.9% for President George H.W. Bush).  Obama circuit court nominees have waited on average 151 days between their vote in the Senate Judiciary Committee and confirmation (compared with 29 days for President Bush's nominees); district court nominees have waited on average 103 days (compared with 20 days for President Bush's nominees).  President Obama nominated 20 judges who passed the Judiciary Committee but have yet to receive a vote in the Senate.

As a result, one of ten federal judgeships is vacant, and the wait for civil trials is increasing.  According to Chief Justice Roberts (in his 2010 year-end report on the federal judiciary): "Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary."


Check out for more.


August 26, 2011 in Appointment and Removal Powers, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Paradox of Political Power: William Carter on Post-Racialism and Equality

The paradox is one that has almost become taken for granted.  As ConLawProf William Carter (pictured below) phrases it in his new essay, The Paradox of Political Power: Post-Racialism, Equal Protection, and Democracy, available on ssrn:

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system.

Carter_WebPhoto Carter argues that the Supreme Court has contributed to this paradox.  Importantly, Carter contends that electoral success has been "isolated," despite the election of President Obama, and that the Court has not uniformly supported legislative acts to increase electoral representation.  Additionally, Carter notes the "tension" between the "Court's conservatives' repeated calls for minorities to achieve their goals through the political process" and the ways in which the Court "severely constrains the circumstances" in which the political power of racial minorities can effectively be exercised.

In discussing Ricci v. DeStefano (2009), Carter concludes that the Court's majority opinion "showed deep suspicion of black political power."  Carter contends that the Court found that

successful black political advocacy that temporarily prevented the perpetuation of racial exclusion amounted to reverse discrimination against whites. It reached this conclusion despite the fact that no promotions were made at all and the fact that making the racially discriminatory promotions likely would have violated then-existing law. In essence, Ricci makes a racial minority group’s success in using ordinary politics to prevent its continued subordination and exclusion presumptively illegal.

Carter also analyzes Northwest Austin v. Holder, decided the same year as Ricci, involving  §5 of the federal Voting Rights Act.  He provides a different window on the opinion than the ones (such as our discussion) construing it as a narrow opinion that avoided declaring §5 unconstitutional.  For Carter, Justice Roberts "lengthy dicta" was a signal to Congress that several members of the Court believed §5 raised serious constitutional questions.  The opinion, Carter says, was "suffised with post-racialist assumptions about minority political power."   Carter sums up the paradox of voting rights legislation in a neat question: "If racial minorities are powerful enough to have such legislation enacted, then why do they need it?"

The major contribution of Carter's essay, however, is his suggestion for addressing these paradoxes.  In addition to theorizing our understandings of our Constitutional and Equal protection Clause narratives, Carter suggests

the addition of a preliminary step to the equal protection analysis. Prior to the application of
strict scrutiny in cases where racial minorities have used the political process to enact legislation directed toward remedying the effects of past discrimination or otherwise leveling the playing field, the courts should scrutinize the political process that led to the decision in question, not merely the end result.

Undoubtedly, Carter's essay is a noteworthy contribution to our scholarly understanding of recent "race-cases" from the Court.  It is also terrific teaching material.  Carter's relatively brief essay, 34 pages, would make an excellent assignment for students in traditional Constitutional Law courses as well as courses focusing on the Fourteenth Amendment, on Equality, or on Race.  It is sure to inspire discussion and student reaction papers.


August 26, 2011 in Affirmative Action, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Race, Scholarship, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 24, 2011

The Thomases and Health Care Reform

Justice Clarence Thomas and his activist spouse Virginia could deliver a one-two punch to the Affordable Care Act's individual health insurance mandate, Jeffery Toobin writes in his New Yorker article, Will Clarence and Virginia Thomas succeed in killing Obama's health-care plan? 

Toobin traces the couple's many conservative connections and argues that Virginia Thomas has worked tirelessly in her conservative policy circles against the measure just as Justice Thomas has all but called his own vote (against, if there were any doubt) when the mandate inevitably reaches the Court. 

Toobin points to Justice Thomas's concurrence in Printz v. U.S. as evidence that Thomas has led the Court's thinking on the Second Amendment--and that he might lead the Court's thinking on the individual health insurance mandate.  In that case, asking whether Congress had authority to require local law enforcement officers to temporarily conduct background checks on gun purchasers, Justice Thomas agreed with the majority that the law violated the Constitution, but added to the majority's reasoning.  Instead of ruling only that the law violated principles of dual sovereignty (as the majority did), Justice Thomas added (for himself alone) that the original meaning of the Second Amendment might also block the law--a view that presaged the Court's approach in D.C. v. Heller, eleven years later.

Justice Thomas wrote another concurrence, in U.S. v. Lopez, that would have read a more restricted Commerce Clause than the majority in that case.  If Thomas leads the Court's Commerce Clause jurisprudence as he led the Second Amendment jurisprudence, his Lopez concurrence could presage a Court ruling against the individual mandate, just as his Printz concurrence presaged the Court's approach in Heller.

But if Justice Thomas is sometimes a leader in the Court's jurisprudence, he's also sometimes completely out of step--as Toobin himself points out.  Toobin points to Justice Thomas's approach to the Eighth Amendment's prohibition on cruel and unusual punishment, where Thomas's rigid originalism, on full display in his concurrence in Baze v. Rees, would allow all but the most horrific punishments.

His cramped reading of the Commerce Clause in Lopez may be similarly out of step with this Court.  Remember that Chief Justice Rehnquist--no free-wheeler on the Commerce Clause--wrote the opinion of the Court in Lopez; Justice Thomas wrote separately to go him one better.  In terms of Thomas's approach (even if not the result), recall that Justice Scalia, the Court's other famous originalist, even if only "faint-hearted," joined Rehnquist, not Thomas. 

Justice Thomas's vote on the individual mandate may already be in.  But whatever the result in the case, it doesn't seem at all certain that the Court will follow his approach.


August 24, 2011 in Commerce Clause, Congressional Authority, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 23, 2011

Second Circuit Upholds "Protective" Measures Against Student

A three-judge panel of the Second Circuit ruled last week in Cox v. Warwick Valley Central School District that a school principal did not violate the First Amendment or substantive due process rights of a student or his parents when the principal sequestered the student and reported his parents to Child and Family Services after the student wrote a violent and disturbing essay as a class project.

The project required the student to write on what he would do if he only had 24 hours to live.  The student's essay, titled "Racing Time," described getting drunk, smoking, taking drugs, and breaking the law.  It ended with the student shooting himself in front of his friends.

452px-StateLibQld_1_113036_Cartoon_of_students_receiving_the_cane%2C_1888 The student's teacher reported the essay to Principal Kolesar, and Kolesar immediately removed the student from class and sequestered him in a separate room for the rest of the afternoon.  Kolesar released the student at the end of the school day, after he determined that the student did not pose a threat.  But Kolesar later reported his concern that the student's parents neglected him to CFS.  The student's parents brought a civil rights claim against the district for violating free speech and substantive due process.

The unanimous panel rejected the claims.  It said that Kolesar's sequestration of the student was "protective," not retaliation or punishment for the student's speech.  As such, the panel didn't even reach the question whether the student's essay constituted protected speech; instead, it simply ruled that Kolesar took no action to violate free speech. 

As to the parent's substantive due process claim (for interfering with their parental rights), the panel ruled that Kolesar's action--calling CFS--was similarly designed to protect, not to punish.  In fact, Kolesar had a legal duty to report suspected child neglect to CFS.  The panel noted that if it found CFS reports generally to be retaliatory, such a finding would seriously undermine school administrators' ability to protect the children in their charge.

Because the panel found no constitutional violation, the panel didn't rule on Kolesar's qualified immunity.


[Image: Cartoon of Students Receiving the Cane (for drawing "Old Mr. Kerr" on the chalkboard), wikimedia commons]

August 23, 2011 in Cases and Case Materials, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Protection Against Domestic Violence as a Constitutional (Human) Right

Castle Rock v. Gonzales, decided by the United States Supreme Court in 2005, stands for the proposition that one does not have a due process right to have a restraining order enforced by law enforcement.  In Castle Rock, Ms. Jessica Gonzalez had a restraining order against her husband, but despite the fact that he took their three children without permission and she contacted the police department three times and was essentially told to call back later each time, and Mr. Gonzalez murdered all three children without any police action, the Court found that she did not have any due process rights to have the order enforced.

Confronted with a case such as Castle Rock, students may ask whether there is anything else Ms. Gonzalez could do.  The usual answer for ConLawProfs would be no, given that the nation's highest court has rendered its opinion.  However, Ms. Gonzalez, now known as Jessica Lenahan, represented by American law professors and students at University of Miami's Human Rights Clinic took her case to an international forum - - - the Inter-American Commission on Human Rights.


The Commission has just made public its lengthy Report on the matter, finding that the restraining order was the only means available to Jessica Lenahan at the state level to protect herself and her children in a context ofdomestic violence, and the police did not effectively enforce it. The Commission concluded that these failures to protect Lenahan and her daughters constituted a form of discrimination in violation of the American Declaration, since they took place in a context where there has been a historical problem with the enforcement of protection orders; a problem that has disproportionately affected women sincethey constitute the majority of the restraining order holders.

Today, the UN Special Rapporteur on violence against women "urged the United States Government to reexamine its current policies on dealing with violence against women."  

The constitutional effect of such rulings and "urgings" may be limited, but the interrelationship between domestic constitutional law and international human rights is worth surfacing in ConLaw classes.


August 23, 2011 in Gender, International, Procedural Due Process, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, August 22, 2011

Serfs, Jesus, and the Establishment Clause in Advanced Placement History Class

The scene is an advanced history class in an Orange County school, in one of the tonier school districts in the United States, in which Dr. James Corbett has been teaching the AP European History course for the past 16 years with pedagogical goals including critical thinking and provocative engagement with current events. 

In its opinion in CF v. Capistrano Unified School District, a panel of the Ninth Circuit considered the claim by Chad Farnan, a student in the class who eventually withdrew, that Dr. Corbett violated the Establishment Clause by evincing his hostility to religions in general and Christianity in particular.  One of Dr. Corbett's objectionable statements - - - recorded by the student without the teacher's knowledge - - - was a discussion of Joseph II (pictured right).  Anton_von_Maron_006

Joseph II, according to the recording, was trying to end serfdom, but was opposed by the serfs, against their own economic interests, because Joseph II was also trying to reform religion.  Dr. Corbett then analogized this to the situation in "red states" in which people vote against their economic interests and in favor of the Republican party because when they put on their "Jesus glasses" they can't "see the truth."  

Dr. Corbett argued that many of the statements were taken out of context and inaccurate, as well as being the product of a surreptitious recording that violated state law, but the panel declined to discuss that issue.  The panel also declined to reach the ultimate question as to whether a school teacher could violate the Establishment clause by being hostile to religions in general or Christianity in particular.  Instead, the panel found that the defendants were entitled to qualified immunity because any right involved in Farnan's theory of the case was not "clearly established at the time of the alleged misconduct" as would be required.  As the court stated:

We have little trouble concluding that the law was not clearly established at the time of the events in question — there has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion.

In its summation, the panel opined that teachers must be

given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

However, the court did note that at some point a  "teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility."   In this context, the panel's earlier description of Dr. Corbett as "a Christian who regularly prays and attends church services," is a bit troublesome.  Is it relevant that Dr. Corbett is a Christian, or more precisely, not an atheist?

But to be clear, the panel reserved judgment on whether that point had been reached, holding that there was no clearly established law regarding the possibility of such a point.

[image Portrait of Joseph II, Holy Roman Emperor by Anton von Maron via]

Update: See Dr. Corbett's comments below

August 22, 2011 in Establishment Clause, First Amendment, History, Opinion Analysis | Permalink | Comments (2) | TrackBack (0)

It's not the Autopen, It's the Proxy Presence Requirement

Reconsidering President Obama's use of the autopen a few months ago to sign an extension of FISA, the Foreign Intelligence Surveillance Act, Professor Terry Turnipseed argues that

it is not the President’s use of the autopen that is problematic. Rather, the President’s absence during the proxy signing is, and it demands an examination of the very nature of the Constitution’s signature requirement.

In his essay, Turnipseed discusses the origins of proxy signatures, including the presence requirement for proxy signatures in the English Statute of Frauds and Statute of Wills.  He uses these as a lens to view the presentment clause of Art. I §7, requiring 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, with his Objections to that House in which it shall have originated . . ."  The remainder of the provision allows for a bill to become law by Congressional override of a veto, or by the President's failure to sign or veto a bill within 10 days while Congress is in session. 



For Turnipseed, the signature option is linked to a strong executive and the constitutional separation of powers in Constitutional Convention discussions.  Turnipseed attacks the Nielson Memorandum, on which Obama relied for the autopen signature, claiming that the Memo's "Achilles’ heel"  is found in footnote 11: “[T]he principle of signatures generally required the principal’s presence for his signature validly to be affixed to a document by another person otherwise lacking authority to act on the principal’s behalf …” 

On his view, the footnote is a "shoddily crafted" attempt to circumvent 350 years of history that addressed "the dangers of fraud and undue influence," issues that continue to be of concern today.   He concludes that the "safest method for avoiding fraud is the same today as hundreds of years ago: have the principal sign a document in pen or require that a proxy (whether human or autopen) do so in the presence of the principal."   

[image via]

August 22, 2011 in Executive Authority, History, Interpretation | Permalink | Comments (0) | TrackBack (0)

Sunday, August 21, 2011

President Orders Government-Wide Initiative to Promote Diversity and Inclusion

President Obama last week issued an executive order to establish a coordinated government-wide initiative to promote diversity and inclusion in the federal workplace.  The impetus:

To realize more fully the goal of using the talents of all segments of society, the Federal Government must continue to challenge itself to enhance its ability to recruit, hire, promote, and retain a more diverse workforce.  Further, the Federal Government must create a culture that encourages collaboration, flexibility, and fairness to enable individuals to participate to their full potential.

Among the highlights:

  • The President ordered the Director of the Office of Personnel Management and the Deputy Director for Management of the Office of Management and Budget, in coordination with the President's Management Council and the Chair of the Equal Employment Opportunity Commission to develop and issue a government-wide Diversity and Inclusion Strategic Plan, which will guide agencies in developing their own agency-specific plans;
  • The President ordered each agency to designate a new Chief Human Capital Officer to be responsible for enhancing employment and promotion opportunities within the agency.



August 21, 2011 in Executive Authority, News | Permalink | Comments (0) | TrackBack (0)