October 14, 2011
Alabama Immigration HB56: Additional Provisions Stayed by the Eleventh Circuit
With little substantive discussion in its 16 page Order today, a panel of the Eleventh Circuit Court of Appeals issued an injunction pending appeal on two sections of Alabama's highly controversial immigration law, HB 56.
Recall that on September 28, the district judge enjoined various sections of the statute in very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley.
Ruling on motions for injunction pending appeal, the Eleventh Circuit enjoined section 10 and section 28 of HB56:
Section 10(a) creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.
Section 28 requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.
H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.
H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.
H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.
H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.
Judge Barkett dissented as to sections 12 and 18.
October 13, 2011
Funeral Protests: The Saga Continues with a Circuit Split
The United States Supreme Court's decision in Snyder v. Phelps last term has not solved the issue of the constitutionality of laws prohibiting protests at or near funerals.
Such laws have become widespread in reaction to the activities of the same organization involved in Phelps with its penchant for protesting at funerals to express its views regarding "homosexuality," although the connection to sexuality is often tenuous at best.
However, while Snyder v. Phelps involved a damages award in favor of the father of the deceased for infliction of emotional distress, the circuit split involves enactments that seek to directly regulate funeral protests.
For example, a Manchester, Missouri ordinance prohibits "picketing or other protest activities . . .
within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place."
On the other hand, an Ohio statute provides that "no person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur, within three hundred feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one hour before or one hour after the conducting of an actual funeral or burial service at that place...."
One would assume that both of these enactments would share the same constitutional fate. They are identical in their essentials: time (one hour before and after an actual funeral) and place (300 feet within specified places).
Yet the Manchester, Missouri ordinance was declared unconstitutional earlier this month by the Eighth Circuit in Phelps-Roper v. City of Manchester.
The Sixth Circuit held the Ohio statute constitutional in Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008).
The Eighth Circuit's per curiam opinion is exceedingly cursory; the First Amendment analysis is two paragraphs. The first paragraph disagrees with the district court that the ordinance was a content based regulation. As for the second paragraph, it concludes that the district court was required to follow the Eighth Circuit precedent of Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008), another funeral protest statute case, this one involving the Missouri statute.
Judge Murphy's concurrence in the per curiam opinion - - - a concurrence that often reads like a dissent - - - makes clear how misguided it was for the panel to have been bound by the earlier Eighth Circuit case. Murphy writes that in Nixon, the earlier case, "a panel of our court analyzed a quite different funeral protest statute and concluded that Phelps-Roper was "likely to prove any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech.""
Indeed, the Missouri statute in Nixon did not have a "300 feet" provision, the kind of "zone" or "bubble" familiar in anti-abortion protest laws that have been upheld as constitutional. Moreover, the procedural posture in Nixon was that of a preliminary injunction; the panel specifically stated it did not reach the merits of the claim.
Judge Murphy "respectfully" suggests that the United States Supreme Court opinion in Snyder v. Phelps "provides the proper method of analysis for deciding whether the Manchester ordinance is constitutional."
It would certainly seem so. And it would certainly seem that the certiorari petition is likely, especially given that the US had filed an amicus brief in the Eighth Circuit on behalf of the City of Manchester.
[image: Phelps-Roper protest at funeral of Vice President Joe Biden's mother, via]
Occupy Switzerland?: European Court of Human Rights Finds A Violation of Free Association Rights of RHINO
RHINO - - - an acronym for two alternative French slogans, translated as “Vacant buildings inhabited again” and “Let’s carry on living in the buildings we occupy” - - - was an association established in Geneva, Switzerland in 1988.
After years of activities consistent with its slogans, including squatting in a building with its famous "red horn" (pictured left), legal action terminated not only the possession but the organization itself. Owners of the occupied properties sought a dissolution of the RHINO association "on the grounds that its aims were unlawful." The Swiss courts agreed to dissolve the association.
The European Court of Human Rights, however, has held that the dissolution violated Article 11, "freedom of association," of the European Convention on Human Rights. The dissolution of the association was not proportionate and necessary in a democratic society, and there was no showing that alternative less restrictive measures were available to prevent "disorder." The Court therefore ordered money damages (65,651 euros) and costs to be paid by Switzerland to RHINO.
There were also related eviction proceedings in the Swiss courts; these are also before the European Court of Human Rights.
Federalist Society National Lawyers Convention
Headliners include Justices Scalia and Thomas ("A Celebration of Service"), former U.S. Attorney General Michael Mukasey (Eleventh Annual Barbara K. Olson Memorial Lecture), former U.S. Solicitor General Paul Clement and Prof. Laurence Tribe (Annual Rosenkranz Debate on health care reform), and Utah Senator Mike Lee.
The Convention runs from Thursday, November 10, to Saturday, November 12, at the Mayflower Hotel.
October 12, 2011
Court Considers Constitutionality of Strip Searches for Arrestees
The Supreme Court heard oral arguments today in Florence v. Board of Chosen Freeholders (Burlington), asking whether arrestees can be strip-searched on admission to jail without reasonable suspicion.
The case grew out of Albert Florence's arrest and jailing on an outstanding warrant. The arresting officer took Florence to Burlington County Jail, where officers conducted a strip-search and a visual body-cavity search (including a shower) as part of the intake process. Florence was detained at Burlington for six days and was then transferred to Essex County Jail. Officers at Essex conducted similar searches, but this time required Florence to squat and cough to expel any contraband. Neither Burlington nor Essex officers had reasonable suspicion that Florence was concealing contraband.
Florence argued that his searches violated the Fourth Amendment, because officers lacked reasonable suspicion. Burlington and Essex, helped by the U.S. solicitor general as amicus, argued that prison officials could conduct blanket intake strip searches like these without reasonable suspicion.
As we might expect, oral arguments centered around the necessary line drawing in a case like this. Justices wondered whether Florence's reasonable suspicion standard should apply to all arrestees--those arrested for both serious and non-serious offenses, violent and non-violent, drug-related and not, etc. They wondered just how intrusive a search would trigger the reasonable suspicion standard--a search at 2 feet, or at 5 feet, or at 10 feet. They wondered whether reasonable suspicion would apply to all types of searches--those conducted for contraband, and those conducted for prison health purposes (as in, say, a lice check). And they wondered about both the administrability of a reasonable suspicion standard (for the prison) and the trade on personal dignity that might accompany searches based on individualized assessment (for the arrestees).
If the arguments today are any indication, nobody on the Court seems particularly enthuastic about drawing these lines.
And yet the parties' stronger positions--that reasonable suspicion should always apply (from Florence), and that it should never apply (from the jails)--also had their drawbacks. As several justices pointed out (led by Justice Breyer), there's scant empirical evidence that contraband works its way into jails under a reasonable suspicion standard. Moreover, as Justice Alito suggested, applying blanket, suspicionless strip searches to, say, people arrested for routine traffic citations seems wrong. And as Tom Goldstein argued (for Florence), nobody seems to seriously contest the administrability of a reasonable suspicion standard; in fact, it's the one applied by the federal Marshal Service and ICE to over 600,000 arrestees every year.
On the other side, there was some evidence in the record--testimony by a prison warden--that blanket suspicionless strip searches are necessary to protect the safety of all prisoners. And, as Carter Phillips argued for the jails, the Court has granted deference in the penal context; according to Phillips, deference here means no constitutional bar to suspicionless strip searches.
Because of the inevitable line-drawing problems with any intermediate position, look for the Court to lean toward a categorical rule--either that reasonable suspicion is always required, or that it is never required. This, in turn, will almost certainly depend on administratibility and effectiveness of a reasonable suspicion rule (or not)--the kinds of empirical questions over which several justices expressed concern. But still there may be a thumb on the Court's scale against a categorical rule for reasonable suspicion: as the arguments made clear, such a rule would necessarily introduce some line-drawing--say, as Chief Justice Roberts pointedly put it, between a search at 2 feet or a search at 5 feet--and it wasn't at all clear that a majority on the Court would be comfortable with this (much less in agreement over the line).
Here's a short video by the American Constitution Society and the National Constitution Center on the story behind the case:
We previously posted on the issue here, on Bame v. Dilland, a split decision by a three-judge panel of the D.C. Circuit that the officer enjoyed qualified immunity for a suspicionless strip search of a non-violent, non-drug-related arrestee.
October 11, 2011
Albion Tourgee´ Conference
Tourgee´ is best known, by ConLawProfs anyway, as the attorney for Homer Plessy in Plessy v. Ferguson. For years, I've used Peter Irons' discussion of Tourgee´when teaching the background and litigation of Plessy, including Tourgee´s daring arguments asking the Justices to imagine themselves Black.
The Center for the Study of the American South at UNC-Chapel Hill will be hosting what looks to be an exciting conference, “A Radical Notion of Democracy: Law, Race, and Albion Tourgée, 1865-1905,” that "recalls the legacies of Reconstruction to offer insight into ongoing policy debates."
The one day Public Law and Humanities Symposium is Friday November 5 in Raleigh, NC. Registration and program details here.
October 10, 2011
OLC: Congressional Restrictions on Collaboration with Chinese are Unconstitutional
The Office of Legal Counsel opined last month that a provision in an appropriations act that purported to prevent the Office of Science and Technology Policy from using appropriated funds to collaborate with the Chinese was unconstitutional.
Recall that President Obama issued a signing statement on the bill (taking issue with the restrictions on transfer of Guantanamo detainees and restrictions on appointment of presidential advisers), but he wrote nothing about the restrictions on collaborating with the Chinese. Nothing requires the President to preserve a constitutional objection in a signing statement; and failure to do so certainly doesn't constitute acquiescence to its constitutionality. Still, the OLC analysis came a little late. It seems that if Presidents are going to object to the constitutionality of a bill that they nevertheless sign, the better practice is to object early and publicly, in the signing statement, and not only later, through a comparatively less public OLC opinion.
The provision, Section 1340(a) of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, says that
None of the funds made available by this division may be used for . . . [the OSTP] to develop, design, plan, promulgate, implement, or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company unless such activities are specifically authorized by a law enacted after the date of enactment of this division.
The OLC wrote that this interferes with the President's exclusive authority to "conduct . . . negotiations with foreign governments." The memo said that Congress "possess significant Article I powers in the areas of foreign affairs," but that in foreign negotiations "it is imperative that the United States speak with one voice" and that "[t]he Constitution provides that that one voice is the President's." Op. at 4.
The OLC also wrote that Congress could use its power of the purse to defund OSTP. But once having appropriated funds, it can't "impair the President's conduct of foreign affairs by imposing restrictions on expenditures that serve diplomatic purposes." Op. at 6. The memo said, however, that some restrictions--those on activities "that are neither diplomatic in character nor otherwise within the exclusive constitutional authority of the President"--did not run into the President's Article II powers.
Columbus Day: The "Doctrine of Discovery"
The celebration of Columbus Day is controversial in many quarters. Professor Robert Williams' article, Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, 8 Ariz. J. Int'l & Comp. L. 51, available on ssrn, is an exploration of that controversy important to ConLaw perspectives.
Williams conects the three core principles of constitutional Indian Law - - - the Congressional Plenary Power doctrine, which holds that Congress exercises a plenary authority in Indian affairs; the Diminished Tribal Sovereignty doctrine, which holds that Indian tribes still retain those aspects of their inherent sovereignty not expressly divested by treaty or statute, or implicitly divested by virtue of their status; and the Trust doctrine, which holds that in exercising its broad discretionary authority in Indian affairs, Congress and the Executive are charged with the responsibilities of a guardian acting on behalf of its dependent Indian wards - - -to the medieval legal intellectual origins of these foundational doctrines that animated Columbus' ability to "claim" the "discovered" lands of the Americas for European sovereigns.
The article is an excellent exploration of these foundational doctrines. Williams discusses the first "Indian case," Johnson v. McIntosh, written by Justice Marshall in 1823, in which the Court considered a dispute of title between persons who had received their title from Indians and those who had received their title from the United States several decades later. Williams explains the outcome:
The Court held in Johnson that Indian tribes had no power to give title to lands to private individuals recognizable in a United States court. Marshall's opinion for the Court in Johnson relied exclusively and directly upon the medievally-derived legal tradition of European Christian Crusading conquest and denial of non-Christian infidel peoples' rights brought to the New World by Columbus. . . . Under this doctrine, recognized and enforced as part of the Law of Nations by the European colonizing nations, discovery of territory in the New World gave the discovering European nation, in Marshall's words, “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” England's title to North America, as Marshall recognized, was asserted under this Doctrine of Discovery, and therefore had devolved to the United States as a result of its victory in the Revolutionary War. Thus, Marshall reasoned that the non-Indian plaintiffs' purchases of lands directly from the Indian tribes, without the approval or sanction of either the original discovering European nation, England, or its successor in interest, the United States, could not be sustained as valid in a United States court of law.
Writing in the quincentennial year of the Columbus "discovery," Williams noted that it was important to confront this continuing legacy of legal doctrines such as "discovery" and their theoretical underpinnings in Christian dominance and racism in order to realize our "contemporary concerns of creating a multicultural society of equal law and justice for all peoples, regardless of their race, cultural or religious beliefs and practices."
Good reading for Columbus Day!
[image: "The Landing of Columbus, 1492, from Library of Congress, via]
October 9, 2011
Justifying Targeted Killing
Sources close to the process that resulted in a yet-to-be-disclosed OLC memo authorizing the targeted killing of Anwar al Awlaki have revealed more and more information about what's in that memo, between last week's story in WaPo and today's story in the NYT. And according to the source or sources, the legal justification seems pretty close to the justification that State Department Legal Adviser Harold Koh gave in his 2010 speech to the American Society of International Law, which we covered and analyzed in May 2010. Koh relied heavily on the right of self defense under international law and on the AUMF; he made only little mention of the assassination ban under long-standing executive order and the Due Process Clause. See our May 2010 analysis for more on those sources.
But if we have some little hint of the administration's legal justification, we don't yet have much information on the process, except this sentence in the NYT story today:
The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.
Now Members of Congress are calling on the Justice Department to release the memo, or at least non-classified portions of it, according to WaPo. The administration hasn't responded to congressional or media requests for information.