Friday, September 9, 2011

Julie Nice on CLS v. Martinez, the First Amendment, and Equality

Julie nice The intersections of constitutional protections for liberty, equality, free speech, and free exercise of religion can make for convoluted and contentious cases.  Christian Legal Society (CLS) v. Martinez, decided by the Court in 2010, is a prime example, with the additional factual setting at a law school heightening the interest for legal scholars.

In How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), Professor Julie Nice, University of San Francisco School of Law, pictured left, argues that the case illuminates several different doctrinal and theoretical controversies, ultimately making liberty more robust because it refuses the conflation of identity and ideology.  

The article is further discussed as my selection for the Jotwell Equality section; it's the best essay I've read on constitutional equality in the last year.  It's essential reading for every ConLawProf.



September 9, 2011 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Profiles in Con Law Teaching, Religion, Scholarship, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)

Thursday, September 8, 2011

Fourth Circuit: Anti-Injunction Act Bars Health Reform Challenge

The same day that a unanimous three-judge panel ruled that the State of Virginia lacks standing to challenge the individual health insurance mandate in the Affordable Care Act, the same three-judge panel ruled by a vote of 2-1 in Liberty University v. Geithner that the Anti-Injunction Act bars individual plaintiffs from challenging the mandate as exceeding congressional taxation authority.  (The AIA bars preenforcement suits challenging "any tax."  The ACA imposes a tax penalty on anyone who doesn't obtain health insurance and on employers who get notice that an employee received a government subsidy for health insurance.)  The ruling means that the AIA bars the suit (the first ruling of this kind by a circuit court).  But it says nothing about the merits (although Judge Wynn in concurrence and Judge Davis in dissent both got to the merits--and both would have upheld the mandate).

Judge Motz wrote for herself and Judge Wynn on the AIA question.  She looked to the plain language of the ACA to determine that the mandate was a tax for AIA purposes, and therefore that the AIA barred a preenforcement challenge to it.  She rejected arguments that the ACA operated as a "penalty," not a "tax," that Congress intended it to operate as a penalty, and that it wasn't designed to raise revenue.  But because she ruled that the AIA barred the suit, she said nothing about the underlying issue--whether Congress had authority to enact the mandate under its taxing power under the General Welfare Clause.

The ruling was (oddly) a loss for both the plaintiffs and the government on this narrow AIA question.  The government previously argued that the AIA barred the suit, but it abandoned its previous position presumably to get a ruling on the merits.  It didn't get such a ruling from this panel.  But Judge Wynn, in addition to agreeing with Judge Motz that the AIA barred the suit, also wrote that Congress had authority to enact the health mandate under its taxation authority under the General Welfare Clause.  And while Judge Davis dissented on the AIA point, he wrote that Congress had authority to enact the mandate under the Commerce Clause.  

All this means that two judges on this Fourth Circuit panel would have ruled that the government had power to enact the mandate under some authority.  That's the real story of the case.


September 8, 2011 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Opinion Analysis, Standing, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit: Virginia Lacks Standing to Challenge Federal Health Reform

A unanimous three-judge panel of the Fourth Circuit ruled today in Virginia v. Sebelius that the State of Virginia lacked standing to challenge the individual health insurance mandate under the federal Affordable Care Act.  The pointed language in the ruling only underscored the fact that states can't simply manufacture standing by enacting declaratory law in opposition to a federal statute.

Virginia based its standing argument on its statute, the Virginia Health Care Freedom Act, which it enacted in the wake of the ACA and which purported to shield Commonwealth residents from the ACA's requirement that they obtain health insurance.  The VHCFA thus declares that "[n]o resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage."

The VHCFA was a transparent attempt to manufacture standing for a state that otherwise couldn't show a concrete, particularized harm to challenge the mandate.  But that didn't stop the lower court from ruling in the state's favor.

The Fourth Circuit saw through the gambit, though.  In a terse and sharp analysis, Judge Motz wrote that states can't manufacture standing simply by enacting legislation that objects to federal law.  Instead, states have standing only when federal law interferes with a state's power to enact and enforce its law.  But VHCFA was merely declaratory; there was nothing to enforce.  Because the State of Virginia wasn't harmed by any interference with its ability to enforce its law, it lacked standing on that basis.

It also lacked standing as protecting its citizens from employers and localities enforcing the ACA's individual mandate.  Judge Motz wrote that the individual mandate regulates individuals, not employers and localities, and so there was nothing to protect against.

Judge Motz wrote that Virginia's theory of standing runs up against citizenship and federalism considerations--that state's can't move to protect their citizens from the federal government:

[Virginia's] claim would run afoul of the prohibition against states suing the United States on behalf of their citizens.  This prohibition rests on the recognition that a state possesses no legitimate interest in protecting its citizens from the government of the United States.  With respect to the federal government's relationship to individual citizens, "it is the United States, and not the state, which represents [citizens] as parens patriae."  When a state brings a suit seeking to protect individuals from a federal statute, it usurps this sovereign prerogative of the federal government and threatens the "general supremacy of federal law."

Op. at 22-23 (citations omitted).  She also highlighted the Article III problems with allowing states to manufacture standing to challenge federal law:

To permit a state to litigate whenever it enacts a statute declaring its opposition to federal law, as Virginia has in the VHCFA, would convert the federal judiciary into a "forum" for the vindication of a state's "generalized grievances about the conduct of government."  Under Virginia's standing theory, a state could acquire standing to challenge any federal law merely by enacting a statute--even an utterly unenforceable one--purporting to prohibit the application of the federal law. . . .

Thus, if we were to adopt Virginia's standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state's power to litigate in federal court.

Op. at 29-30 (citations omitted).

The case is unlikely to go anywhere, especially since other circuits have now weighed in on the merits.  This "case" is--and always was--only Virginia's ill-conceived effort to showcase its political opposition to the individual mandate.  As the panel ruled, it never belonged in court.


September 8, 2011 in Cases and Case Materials, Congressional Authority, News, Opinion Analysis, Standing | Permalink | Comments (3) | TrackBack (0)

Wednesday, September 7, 2011

D.C. Circuit: Guantanamo Detainee Lawfully Detained

A three-judge panel of the D.C. Circuit ruled this week in Khan v. Obama that Guantanamo detainee Shawali Khan is lawfully detained under the Authorization for Use of Military Force.  The court upheld the lower court's denial of habeas relief for Khan based on its finding that "it is more likely than not that Khan was 'part of' HIG," Hezb-i-Islami Gulbuddin, an associated force of al Qaeda and the Taliban.

The government based its case on Army intelligence collectors' declarations based on their interviews with three Afghan informants and (scant) corroborating evidence, including heavily redacted intelligence reports.  (The lower court described one as "perhaps the most redacted report in history.")  The courts nevertheless rejected Khan's arguments that he was not part of HIG at the time of his capture in late 2002 and that HIG was not an associated force of al Qaeda or the Taliban at that time.  The lower court found, and the appeals court affirmed, that the preponderance of the evidence showed that Khan was "part of" HIG, and that HIG was an associated force of al Qaeda and the Taliban.

Khan has been held at Guantanamo since early 2003.  He filed his habeas case in federal court soon after the Supreme Court ruled in Boumediene v. Bush (2008) that the privilege of habeas extends to Guantanamo detainees.  He will presumably receive periodic review now under President Obama's March 2011 Executive Order establishing the periodic review process for Guantanamo detainees.  But the standard for period review is high: Khan will have to show, with little help and against the weight of the government, that his detention is not "necessary to protect against a significant threat to the security of the United States."  If he can't so show, he'll apparently be subject to detention as long as U.S. forces are fighting al Qaeda and the Taliban--potentially indefinitely.


September 7, 2011 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 6, 2011

Ninth Circuit: Arizona's Denial of Benefits to Same-Sex Partners of Public Employees Violates Equal Protection

In a relatively brief opinion today, a panel of the Ninth Circuit affirmed a district judge's finding that Arizona's denial of health care benefits to same-sex partners of public employees violated the Equal Protection Clause. 

 In Diaz v. Brewer, the Ninth Circuit panel considered a challenge by public employees, including several university faculty members, to "Section O," from House Bill 2013, which included a statutory provision, Ariz. Rev. Stat. § 38-651(O) that redefined “dependents” as “spouses,” and thus eliminate coverage for domestic partners allowed by a 2008 act.  

On appeal, the state argued that the district court improperly construed the complaint's allegations as true and that the district court "impermissibly recognized a constitutional right to healthcare."  The Ninth Circuit found both of these arguments rested on  a "misunderstanding" of the district judge's opinion.  The court stated:

The state is correct in asserting that state employees and their families are not constitutionally entitled to health benefits. But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular. The most instructive Supreme Court case involving arbitrary restriction of benefits for a particular group perceived as unpopular is U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).

The Ninth Circuit carefully discussed Moreno - - - the "hippie food stamp case" as many students refer to it - - - and then articulated an equally careful analogy: 

Here, as in Moreno, the legislature amended a benefits program in order to limit eligibility. Since in this case eligibility was limited to married couples, different-sex couples wishing to retain their current family health benefits could alter their status — marry — to do so. The Arizona Constitution, however, prohibits same-sex couples from doing so.

The Ninth Circuit was quite clear that it was applying rational basis scrutiny, as the district judge had also been, and held that Section O was based on a bare desire to harm a politically unpopular group. 

The "framers of the Constitution," the court stated, quoting Justice Robert Jackson in Railway Express Agency v. New York, "knew, and we should not forget today that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally."


September 6, 2011 in Equal Protection, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Prop 8 Goes Back to the California Supreme Court on Certified Question

On Justice Goodwin Liu's first day sitting as a justice on the California Supreme Court, the matter before the court was one the court has encountered several times before: same-sex marriage.  However, Liu is not the only new Justice; TaniCantilSakauye the Chief Justice, Tani Gorre Cantil-Sakauye, pictured right, assumed her post in January 2011.

The extended history of same-sex marriage and Proposition 8 before the California Supreme Court is complicated, but today's hearing also involves the federal litigation surrounding Proposition 8.  The California Supreme Court's task in Perry v. Brown (previously Perry v. Schwarzenegger) is to answer a question of state law certified to the court by the Ninth Circuit; a certification that the California Supreme Court accepted.

The question is this:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

The Ninth Circuit wants the question answered in order to assist it in determining whether the proponents, who seek to appeal the decision of federal district court judge Vaughn Walker, have Article III standing to invoke the power of the federal judiciary on appeal.

The general rule for Article III standing requires satisfaction of several elements.  First, the moving party must have "injury in fact" by suffering injury to a “legally cognizable interest," and the injury must be concrete and particularized as well as actual or imminent.  Secondly, there is a causation element: the injury in fact has to be fairly traceable to the challenged action of the opposing party.  Finally, there must be a substantial likelihood that the injury would be redressed if the party were awarded a favorable decision by the court.  This is not an examination of the merits, but requires a finding that the injury is capable of being redressed assuming the party prevailed.

California Supreme Court
The California Supreme Court is thus not determining the issue of federal court standing and its opinion will not be outcome determinative for the Ninth Circuit.  However, if the California Supreme Court holds that the proponents do not have a "particularized interest in the initiative's validity" and that the proponents do not have "authority to assert the State's interest in the initiative's validity" under state law, this would mean that the proponents will have great difficulty satisfying the "injury in fact" element of Article III standing.

From the oral argument webcast, there is little indication of the California Supreme Court's views.  Under state rules, the court must render its decision in 90 days.


UPDATE: Watch the full video of the oral argument:


September 6, 2011 in Current Affairs, Federalism, Standing | Permalink | Comments (3) | TrackBack (0)

Monday, September 5, 2011

Third Circuit: Prolonged Immigration Detention Unconstitutional

A three-judge panel of the Third Circuit ruled last week in Diop v. ICE that the government's nearly 3-year detention of a person who was removable from the country while his case worked its way through the immigration system violated the Due Process Clause.

The case involved the government's detention authority under 8 U.S.C. Sec. 1226(c), which permits the government to detain and hold an alien without bond when the alien "is deportable by reason of having committed," among other crimes, a crime "involving moral turpitude" or one "relating to a controlled substance."  This means that the federal government could hold a deportable alien indefinitely and without bond while the case is pending in the immigration and federal courts.  (In the ordinary case--one involving an alien who did not commit a crime that would make him or her deportable--an alien gets a bond hearing and may be released on bond while his or her case moves forward.)

Diop was detained under the provision, without a bond hearing, for nearly three years while his case worked through the immigration courts and the federal courts.  He was finally released after 1,072 days in detention--after four rulings by an immigration judge, three rulings by the Board of Immigration Appeals, a state court ruling on his 1995 conviction and a subsequent appeal to the state intermediate appellate court, a ruling by a federal district judge, and an appeal to the Third Circuit.

The Third Circuit said this violated due process.  It drew on Justice Kennedy's concurrence in Demore v. Kim:

Justice Kennedy's opinion provides helpful guidance on how to interpret the Demore opinion.  Under the Supreme Court's holding, Congress did not violate the Constitution when it authorized mandatory detention without a bond hearing for certain criminal aliens under Section 1226(c).  This means that the Executive Branch must detain an alien at the beginning of removal proceedings, without a bond hearing--and may do so consistent with the Due Process Clause--so long as the alien is given some sort of hearing when initially detained at which he may challenge the basis of the detention.  However, the constitutionality of this practice is a function of the length of detention.  At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of Section 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community.

Op. at 18.  In other words, Section 1226(c) is facially constitutional, but, as applied, detention under its authority might run up against the Due Process Clause when that detention fails to serve the purposes of the law.  And the courts owe the Executive little deference in determining that point: "courts reviewing petitions for writ of habeas corpus must exercise their independent judgment as to what is reasonable."  Op. at 21.

The court also ruled that Diop had standing, despite his release, because his detention was capable of repetition yet evading review.


September 5, 2011 in Cases and Case Materials, Due Process (Substantive), Executive Authority, Fundamental Rights, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)