Saturday, September 17, 2011
It's Constitution Day - September 17 - and federal law mandates that
Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution
Department of Education regulations provide that the law
requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week.
Today (or next week) might be a good time to discuss the relationship of the Constitution's text and its interpretation, especially given the popular rhetoric concerning "strict constructionism." A possible prompt might be the Eleventh Amendment:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
In divided opinions, the Court has repeatedly stated it will not engage in "blind reliance" upon the text of the Constitution regarding the Amendment, see e.g., Alden v. Maine (1999).
[image: Eleventh Amendment via National Archives]
Friday, September 16, 2011
The en banc Ninth Circuit ruled today in Comite De Jornaleros De Redondo Beach v. City of Redondo Beach that a city ordinance that bans solicitation for employment violates day laborers' First Amendment speech rights on its face. The ruling reverses a June 2010 ruling by a three-judge panel upholding the ordinance.
The ordinance reads:
(a) It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle. For purposes of this section, "street or highway" shall mean all of that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, medians, alleys, sidewalks, curbs, and public ways.
(b) It shall be unlawful for any person to stop, park or stand a motor vehicle on a street or highway from which any occupant attempts to hire or hires for employment another person or persons.
The court ruled that this was an impermissible "time, place, manner" regulation on speech, because it regulated too much protected speech in too many locations in a way that wouldn't serve the City's interests in keeping traffic moving and safety on the roadways. In other words, it was overinclusive. Example: Its plain language would prohibit children from setting up a lemonade stand on a neighborhood sidewalk.
The court rejected the City's narrowing interpretation--that the ordinance would only apply to solicitations that clogged traffic. It wrote that the ordinance wasn't susceptible on its face to such narrowing. On this point, the court overruled language in ACORN v. City of Phoenix, the 1986 Ninth Circuit case upholding a virtually identical ordinance designed to prohibit ACORN members from soliciting donations from stopped drivers. The three-judge panel relied heavily on ACORN in its earlier ruling.
The ruling means that the Rendondo Beach ordinance is unenforceable against anyone. It also means that the Ninth Circuit doesn't accept the government's limiting interpretation of ordinances like this; instead, it rules them overbroad and unconstitutional.
Three judges on the Ninth Circuit specially concurred but went yet farther. They said that the ordinance was a content-based restriction on speech (not merely a content-neutral, "time, place, manner" regulation) and that it failed strict scrutiny. They also said it didn't leave open ample alternative channels of communication.
But Chief Judge Kozinski and Judge Bea sharply dissented. Chief Judge Kozinski started his opinion with this: "This is folly." He wrote that "[t]he majority is demonstrably, egregiously, recklessly wrong." And: "If I could dissent twice, I would." (He noted that Judge Bea would have dissented twice, too.)
Chief Judge Kozinski wrote that any overinclusivity was based on wild hypotheticals, and that the ordinance was perfectly susceptible to a reasonable limiting interpretation, especially in light of the City's history of not enforcing the ordinance against, say, children selling lemonade on the sidewalk. He also emphasized the extent of the problem and said that the City had been laboring for years to address it, to no avail.
[Image: Waldmuller, The Daylaborer with His Son, Wikimedia]
The White House released a status report today on its various open government initiatives. Highlights include the following:
- FOIA. The White House reports that its efforts to increase responses to FOIA requests, improve proactive FOIA disclosures, and develop a better FOIA infrastructure have been successful and are continuing.
- Open Government Initiative. The report gives an update on the administration's Open Government Initiative, which includes the Open Government Directive and agency Open Government plans.
- Data.gov. The White House reports that Data.gov, it's two-year-old effort to put various agency data sets in one accessible location and on a single platform, has been successful and has yielded some innovative private initiatives to share information.
- Transparency in Spending. The report updates on administration efforts to increase transparency in how it spends taxes.
- Classified Information. The White House reports that it has revamped the process for classifying and declassifying government information, resulting in less unnecessary classifications and greater disclosure.
- White House Information. The report updates on greater transparency in White House information, e.g., publicizing the daily schedule, tax returns, financial disclosure forms, and visitor logs, among other information.
Thursday, September 15, 2011
The name of the Florida Law is "An act relating to the privacy of firearm owners": it prohibits medical care providers from asking their patients about gun ownership and recording such information. The Act, passed in 2011 and signed by controversial Florida Governor Rick Scott, was touted as preventing doctors from asking questions about a constitutional right and therefore protecting that right.
Judge Cooke rejected the relevancy of the Second Amendment argument of the State of Florida: "The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State's insistence that the right to "keep arms" is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights."
Instead, Judge Cooke analyzed the law under the First Amendment. The statute, Judge Cooke observed, curtails medical practitioners' ability to inquire about whether patients own firearms and burdens their ability to deliver a firearm safety message to patients, under certain circumstances, and thus implicates practitioners' First Amendment rights of free speech. She also observed that the statute also implicates patients' freedom to receive information about firearm safety, which the First Amendment protects."
Judge Cooke analyzed the standing issues, quickly and accurately determining the plaintiffs had standing, rejecting the State's argument that the statute was merely horatory. She then discussed the First Amendment arguments, situated within the discussion of the likelihood of success on the merits in the preliminary injunction standard.
At the center of Cooke's analysis was the Court's decision last term in Sorrell v. IMS, in which the Court held unconstitutional a state statute seeking to regulate datamining of prescription information. However, Cooke clearly viewed the Florida statute as meriting strict scrutiny, holding that it directly targets speech based on its content. Judge Cooke also analogized to the "hate speech" case of R.A.V. v. City of St. Paul (1992), noting that Florida has prohibited "harassment and discrimination" by doctors only on the subject of firearm ownership.
As for satisfying the compelling interest prong of the strict scrutiny test, Judge Cooke wrote that the State "provides no case law indicating that preventing practitioners from harassing or discriminating against a patient based on firearm ownership constitutes a compelling government interest. Further, the State "fails to provide any specific evidence, beyond anecdotal information, that such "harassment" and "discrimination" is widespread or pervasive. It is unlikely that a concern for some patients who may be offended or uncomfortable by questions regarding firearm ownership could justify this law."
As for the "least restrictive means" prong, the Judge held that the State does not explain why the extant state and federal laws protecting patient privacy are insufficient to protect the privacy interests, and discussed various other suggestions by the health practitioners.
Judge Cooke explicitly refused to "speak to the wisdom of the legislation now before me," given her judicial role. And indeed, her opinion is a fine exemplar of judicial craft. At 22 pages, it is succinct yet sufficient, well-written and well-organized. Sure to be appealed, it is likely to be upheld, if the Eleventh Circuit Judges exercise good judgment.
[image: The Doctor's Visit by Jane Steen, circa 1714, via, with antique gun overlay].
Wednesday, September 14, 2011
A unanimous three-judge panel of the Ninth Circuit ruled yesterday in Johnson v. Poway Unified School District that the District did not violate a teacher's First Amendment rights when officials ordered him to remove banners from his classroom reading "In God We Trust," "One Nation Under God," "God Bless America," "God Shed His Grace On Thee," and "All Men Are Created Equal; They Are Endowed By Their CREATOR."
Teacher Johnson argued that the district violated his rights under the Speech and Establishment Clauses when officials ordered him to remove the banners. He argued that other district teachers displayed religious symbols in their classrooms--including Tibetan prayer flags, a John Lennon poster with the "Imagine" lyrics, a Mahatma Gandhi poster, a Dalai Lama poster, and the like--and that he was treated unfairly. The district court ruled in his favor, saying that the district created a public forum and engaged in viewpoint discrimination by requiring Johnson, but not these others, to remove his banners.
The Ninth Circuit reversed. It ruled that the district court erroneously applied public forum analysis, when it should have applied public employee doctrine under Pickering. Applying Pickering, the court ruled that Johnson spoke in his capacity as a public school teacher, not as a private citizen, and that his speech was therefore not protected. (The court said that Johnson displayed his banners in his room, under a time-honored policy in the district allowing teachers to decorate their own classrooms. Thus his display was part of his job as a teacher, not his independent speech as a citizen.)
The court further ruled that the district's act in requiring Johnson to remove his banners did not violate the Establishment Clause. Applying the Lemon test, the court ruled that the district had a secular purpose (because it ordered the removal as part of its vigilant efforts to avoid Establishment Clause problems) and that the district's order had a religion-neutral, sect-neutral effect (because in context the other displays that it allowed to remain--the Tibetan prayer flags, the Lennon poster, the Gandhi poster--all had a primarily secular meanings).
The result isn't a particular surprise; the court itself began its opinion with the line, "The answer is clear."
Anita Hill 20 Years Later: Sex, Truth, and Power, a conference, will be held on Saturday, October 15, 2011 at Hunter College, City University of New York, NYC.
Speakers include Devon Carbado, Lani Guinier, Judith Resnik, Charles Ogletree, Patricia J. Williams, and many others, with a Keynote by Anita Hill.
Registration Information here.
Tuesday, September 13, 2011
Judge Christopher C. Conner (M.D. Penn.) ruled today in Goudy-Bachman v. Sebelius that the so-called individual health insurance mandate in the Affordable Care Act exceeds Congress's authority under the Commerce Clause and the Necessary and Proper Clause. Judge Conner also ruled that the mandate is severable from the rest of the ACA, except the guarantee issue and preexisting conditions provisions (which require insurers to take all comers) because the mandate partially funds those provisions. Thus according to the ruling, all three provisions--the individual mandate, the guarantee issue, and the preexisting conditions--are unconstitutional.
Judge Conner wrote that he didn't find particularly helpful the familiar distinction (and favorite among opponents) between regulating "action" and regulating "inaction." He said that the Court had previously adopted--and later abandoned--similarly unhelpful distinctions. He didn't want to go down that road here.
But yet his own analysis then turned on exactly this kind of distinction--between an "anticipatory" regulation, and a regulation of ongoing behavior. Judge Conner wrote that the principal problem with the individual mandate is that it required insurance before the purchaser enters the market for insurance or the market for health care. He wrote that this kind of "anticipatory" requirement is unprecedented and exceeds congressional authority, but he didn't well explain why his distinction is any more helpful or determinate than the action/inaction distinction. (In fact, it seems nearly exactly the same as the action/inaction distinction: all "action" is non-anticipatory, by definition, and vice versa. Similarly, "anticipatory" is necessarily "inaction." It's not at all clear why Judge Connor's new language helps untie this knot.)
Judge Conner also expressed concern that the government's theory of authority knows no bounds and would lead to a generalized federal police power.
The ruling comes just a week after the Fourth Circuit ruled in Virginia v. Sebelius that Virginia lacked standing to sue. (Virginia's theory of standing--that the individual mandate interfered with its sovereign right to protect its own citizens from such a mandate--was very different than the plaintiffs' theory of standing here.)
The CDCR - - - California Department of Corrections and Rehabilitation - - -has anounced its plan "aimed at reuniting low-level offenders with their families and providing inmates with rehabilitative services within the community."
As the LA Times notes, the plan is not simply motivated by rehabilitative motives. The United States Supreme Court last May in Brown v. Plata upheld the court-ordered release of prisoners to remedy unconstitutional conditions at California prisons.
SB 1266, signed by then-Governor Schwarzenegger, as originally drafted was applicable only to female inmates. However, as the LA Times noted, this "could not be done because of a constitutional ban against gender-based discrimination. So the phrase "primary caregiver" was added to the bill." The law establishes:
a program under which female inmates, pregnant inmates, or inmates who, immediately prior to incarceration, were primary caregivers of dependent children, as defined, who are committed to state prison may be allowed to participate in a voluntary alternative custody program in lieu of confinement in state prison.
Yet the current policy of the CDCR, as announced, reinstates the gender classification:
"Initially, the program will be offered to qualifying female inmates.
Participation may be offered at a later date to male inmates,
at the discretion of the Secretary of CDCR."
Moreover, the "primary caregivers of dependent children" may render the law gender-neutral, but it may impact upon other equal protection concerns. Preferring parents or primary caregivers over those who are not warrants rational basis scrutiny. There may also be due process concerns. Pregnancy, likewise, might raise constitutional concerns.
For ConLawProfs, this could be an excellent equal protection in-class problem, discussion, extra assignment, or even an examination.
For California, this could mean more litigation.
[image: The Prisoner by Evelyn deMorgan via]
Hosted by SALT, the Society of American Law Teachers, the Journal of Civil Rights and Economic Development at St. John's University School of Law is seeking articles and essays.
The call for papers specifically mentions:
"How the U.S. News and World Report could incorporate diversity into its law school rankings methodology in a fair and meaningful way;
Studies on special issues present when advising college students of color about law school admissions;
Model practices for pre-law advisement of students of color."
However the topic is certainly sufficiently broad to encompass ConLaw discussions and scholarship.
From the editors:
If you would like to contribute a paper for consideration,
please submit an abstract of 250 words or less through our online abstract submission form or by email to AaronBarhamJCRED@gmail.com. The abstract submission deadline is October 1, 2011. Selected authors must submit their finished papers to the Journal no later than January 15, 2012.
Monday, September 12, 2011
The American Constitution Society just released an issue brief by Geoffrey Stone (Chicago) and William Marshall (UNC) titled The Framers' Constitution: Toward a Theory of Principled Constitutionalism. Stone and Marshall write that constitutional interpretation according to the Framers' Constitution has two essential elements: First, courts should generally defer to the will of the majority; but second, courts should depart from this deference to "protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers."
Stone and Marshall argue that this approach "reflects the fundamental values and aspirations of those who framed the American Constitution over the course of more than two centuries and strikes the proper balance between judicial restraint and judicial activism by focusing on the circumstances in which judicial review is necessary to preserve our constitutional liberties and limitations."
But values and aspirations aren't all they look to:
In the end, of course, constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text; history; precedent; values; changing social, economic, technological, and cultural conditions; and the practical realities of the times. Above all, it must be grounded in an understanding of the judiciary's unique strengths and weaknesses and in a proper appreciation of the most fundamental reasons for judicial review. Courts must have the authority to invalidate acts of the elected branches of government, not so they can pursue conservative or liberal agendas, but so they can serve as an essential check on the dangers of majoritarian dysfunction. This understanding of constitutional interpretation was central to much of the work of the Warren Court and it has long been central to the progressive understanding of constitutional law.