Saturday, November 12, 2011

White House Turns Over Some Solyndra E-Mails

The White House on Friday turned over some, but not all, of the e-mails sought by the House Energy and Commerce Committee through its subpoenas issued earlier this month.  We posted most recently here.

Recall that the White House argued that the subpoenas were too broad and failed to balance the interests of the executive branch with the legitimate oversight interests of the Committee.

The Committee says that it's reviewing the e-mails now.  While Committee leaders acknowledged the White House's effort, they also said that the documents are "limited" and "self-selected."  According to the White House, it already gave the Committee over 85,000 pages of documents, and the Committee is releasing them "in a way that presented a misleading and inaccurate account to the public."


November 12, 2011 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, November 10, 2011

District Court Denies Preclearance in Texas Redistricting

A three-judge court of the Federal District Court for the District of Columbia this week denied preclearance under the Voting Rights Act to Texas's redistricting plans for the U.S. House of Representatives, the Texas House of Representatives, and the Texas State Senate.  The court issued a brief order, with a memorandum to follow, simply saying that

Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice and that there are material issues of fact in dispute that prevent this Court from entertaining declaratory judgment that the three redistricting plans meet hte requirements of Section 5 of the Voting Rights Act.

The ruling sends the case to the District Court for the Western District of Texas to designate a substitute interim plan for the 2012 elections.


November 10, 2011 in Cases and Case Materials, Congressional Authority, Elections and Voting, News | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit: No Civil Rights Claim for Death at Group Home

A divided three-judge panel of the Ninth Circuit ruled earlier this week in Campbell v. State of Washington Dep't of Soc. and Health Serv. that the mother of a 33-year-old developmentally disabled adult who drowned while in a state-operated assisted-living home did not present a genuine issue of material fact as to her civil rights claim against home employees, because she did not proffer evidence that the state owned her daughter an affirmative duty of care.

The case arose out of Justine Booth's drowning in a bathtub while in the care of the Washington State Operated Living Alternative program, or SOLA.  Justine drowned after SOLA employees ordered her to take a bath, but failed to monitor her.

The majority, citing DeShaney v. Winnebago County Dep't of Soc. Serv. throughout, concluded that Campbell, Justine's mom, did not present a genuine issue of material fact as to her 42 U.S.C. Sec. 1983 claim, because she did not proffer evidence that the state owned Justine an affirmative duty of care.  The majority said that Justine had no special relationship with SOLA, because her admission into the program was voluntary.  Op. at 20033, quoting DeShaney (the "special relationship exception" is created when "the State takes a person into its custody and holds him there against his will") (emphasis added).  And the majority wrote that the SOLA employees did not create the danger, because "none of them acted affirmatively to place Justine in the way of danger they had created."  Op. at 20041.  The majority noted that taking a long bath was one of Justine's favorite activities.

Judge Fletcher dissented, arguing that Campbell raised at least triable allegations on the special relationship and the creation of danger.  As to the special relationship, Judge Fletcher argued that the right question is whether at the time of the events in question the individual was free to leave state custody.  As to creation of danger, Judge Fletcher argued that the state only has to increase the plaintiff's risks to dangers already present.  Under these standards, Campbell alleged sufficient facts to move to trial.


November 10, 2011 in Cases and Case Materials, Due Process (Substantive), Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Speaking of United States v. Nixon . . . . More Watergate Material Just Made Available

As we just noted, before Clinton v. Jones, there was United States v. Nixon.



And now there are the Richard Nixon grand jury documents available on GPO:

In May 1975, the Watergate Special Prosecution Force (WSPF) decided that it was necessary to question former President Richard M. Nixon in connection with various investigations being conducted by the WSPF. Mr. Nixon was questioned over the period of two days, June 23 and June 24, 1975, and the testimony was taken as part of various investigations being conducted by the January 7, 1974, Grand Jury for the District of Columbia (the third Watergate Grand Jury). Chief Judge George Hart signed an order authorizing that the sworn deposition of Mr. Nixon be taken at the Coast Guard Station in San Mateo, California with two members of the grand jury present.

Included is much discussion of the 18 and a half minute gap in the tapes.


November 10, 2011 in Executive Authority, Executive Privilege, History | Permalink | Comments (0) | TrackBack (0)

Justice Stevens on Clinton v. Jones

The Court's unanimous opinion in Clinton v. Jones (1997), involving the postponement of the civil case by Paula Jones against then-President Clinton, is excerpted in most Constitutional Law casebooks, usually right after United States v. Nixon (1974), involving the subpoena duces tecum seeking Watergate material from then-President Richard Nixon.

_407332_paula_bill300The statement in the Clinton v. Jones opinion, authored by Justice Stevens, that the Jones litigation was "highly unlikely to occupy any substantial amount of petitioner’s time,"  seemed to have been proven false by subsequent events.  In his new book, Five Chiefs, Justice Stevens, defends his statement:

[T]he Court had been confronted with the question whether either the Constitution or respect for the office of the president required a federal district court to defer the trial of a damages claim against President Clinton until after the end of his term.  In a unanimous opinion that Bill [Rehnquist] assigned to me, we upheld the decisions of the lower courts denying the request for a stay of the trial.  Among the arguments that we rejected was a claim that permitting the trial to proceed would violate the doctrine of separation of powers.

While I am not aware of any significant scholarly criticism of the legal analysis in my opinion, numerous commentators have rather enthusiastically suggested that only the village idiot could have authored one statement that I made.  In my response to the argument that the burdens of the litigation would impair the president’s ability to discharge his official duties, I declare: "If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.  As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.”  Clinton later gave deposition testimony that triggered his impeachment, which, in turn, obviously occupied a huge amount of his time.  These events, it is argued, proved my comments to have been ludicrous.

That appraisal depends on a failure to recognize both the difference between the trial proceedings and the unforeseen impeachment.  A postponement of the trial would not necessarily have justified a postponement of the president’s deposition.  Indeed, as the president’s lawyers stated at oral argument, a delay in the trial would have increased the need for depositions because of the risk that key witnesses’ memories might fade.  Given that case (Clinton v. Jones [1997]) was settled, we will never know just how much time a trial would have consumed.  We did know that our ruling did not give rise to the predicted avalanche of litigation.  And the impeachment proceedings were certainly not a part of “the case at hand” referred to in our opinion. 

Still the reaction to my words illustrates that an author is seldom the best judge of how readers will react to his work. 

 (emphasis added). 

Note however that Court did not simply uphold "the decisions of the lower courts denying the request for a stay of the trial," as Stevens states.  Instead, as Stevens' opinion for the Court stated:

we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The complaint was filed within the statutory limitations period--albeit near the end of that period--and delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.

Here's a quick overview of the case and developments from WaPo.

[image via]

November 10, 2011 in Books, Executive Authority, Executive Privilege, Gender, History, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Federalist Society's 2011 National Lawyers Convention

Starts today at the Mayflower Hotel in DC. 

20110906_Capitol1835The theme is "The Constitution of Small Government?"  Speakers include Justices Scalia and Thomas, United States Senators Jeff Sessions and Marc Rubio, and Law Profs John Yoo and Richard Epstein.

More information here.



November 10, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 9, 2011

Prosecutorial Duties and Constitutional Remedies Redux

Yesterday's oral argument at the United States Supreme Court in Smith v. Cain posed - - - as SCOTUSBlog Lyle Denniston phrased it - - - a "heavy burden" for a lawyer from that "oft-criticized office" of the New Orleans District Attorney's Office "to mount any defense of its prosecution." 

Yet criticism or not, it is important to recall that last year's 5-4 decision in Connick v. Thompson about prosecutorial misconduct, again on Brady violation, set aside a civil damages verdict for a person who was wrongly convicted and spent the last 18 years incarcerated of which 14 years were on death row.

Rejecting the jury verdict and the Fifth Circuit, Justice Thomas writing for the majority stated that Connick's office had no need to provide training of its prosecutors in complying with the constitutional requirements of Brady: "all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority of jurisdictions must do both," and most jurisdictions "require attorneys to satisfy continuing-education requirements."

The vigorous dissent in Connick v. Thompson was echoed in some of the questions from the bench in the Smith v. Cain argument.  Smith is seeking to have his criminal conviction reversed; perhaps he will be more successful than Mr. Thompson whose $14 million damage award was reversed.


November 9, 2011 in Criminal Procedure, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 8, 2011

D.C. Circuit Upholds Individual Health Insurance Mandate

A three-judge panel of the D.C. Circuit ruled today in Seven-Sky v. Holder that the so-called individual mandate in the federal Affordable Care Act is constitutional.

Judge Silberman and Judge Edwards agreed that the Commerce Clause authorizes Congress to enact the provision.  Judge Kavanaugh, dissenting, argued that the Anti-Injunction Act barred consideration of the claim.

Pieter_Huys_A_surgeon_extracting_the_stone_of_follyJudge Silberman wrote a notably concise and straightforward opinion for the court that dispelled the plaintiff's theory, which he called "novel," that Congress can't regulate inactivity.  Here's the gist:

To be sure, a number of the Supreme Court's Commerce Clause cases have used the word "activity" to describe behavior that was either regarded as within or without Congress's authority.  But those cases did not purport to limit Congress to reach only existing activities.  They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question--presented here--of whether "inactivity" can also be regulated.  In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .

Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity."  For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future.  And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance.

Op. at 30-31 (emphasis in orginal; citations omitted).

The court similarly summarily dismissed the plaintiff's claims about federalism, intrusion into areas of traditional state concern, and the like.  Judge Silberman wrote that the idea that health care and health insurance are enclaves of traditional state concern is implausible, given the ubiquity of federal regulation in these areas.

Judge Silberman also mentioned something that we don't always see in these cases: Congressional acts are presumed constitutional.  He says that "this may be our most important consideration."


[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]

November 8, 2011 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Nebraska and the Keystone XL Pipeline: State Bills May Have Preemption and Dormant Commerce Clause Issues

Nebraska's location in the "heartland" of the continent makes it an attractive - - - and some would say necessary - - - crossing of the controversial Keystone XL Pipeline transporting crude oil from the Athabasca Oil Sands of Canada's Alberta Province to the refineries of Oklahoma and the Gulf of Mexico states in the US. 

Pipeline-map1Nebraskans, however, may not be so keen to have the pipeline crossing their state.  At the moment, there are no less than 5 bills in the Nebraska legislature that seek to regulate some aspects of the pipeline.  The first, LB1, introduced on Nov 1, was the subject of hearings on November 7. It would create the Major Oil Pipeline Siting Act, defining a major oil pipeline as one greater than six inches in inside diameter and establishing an application process for the routing of a major oil pipeline including public hearings regarding siting proposals and evaluating and approving applications before a company was granted eminent domain rights to build the pipeline.   LB 3 and LB4 as well as LB5 and LB6  also regulate aspects of the pipeline, although somewhat less expansively.  For example, LB6 would require the carrier to file proof of an indemnity bond of $500 million with the Nebraska secretary of state.

Any state law could be preempted by the Pipeline Safety Act, 49 U.S.C. § 60101 et seq., concerning safety of interstate pipeline construction.  However, as the LA Times reports, amid mounting criticism of the federal government's approval of the pipeline, the State "Department’s inspector general's office announced Monday that it was opening an investigation to determine whether the department had complied with federal laws in evaluating the $7-billion project," and that this is "in response to charges by pipeline opponents that builder TransCanada Corp. has improperly influenced what is supposed to be an independent assessment of whether the pipeline is in the national interest and meets U.S. environmental standards."  SEE UPDATE BELOW.

Additionally, any state law could run afoul of the dormant commerce clause.  Nebraska's bills do not seem protectionist per se and seem to be for the legitimate and non-economic purpose of protecting the local environment.  The most applicable case is most likely Kassel v. Consol. Freightways Corp., 450 U.S. 662 (1981), a case populating many constitutional law casebooks and involving Iowa's regulation of the length of tractor trailers.  In Kassel, any discussion of the Iowa regulation's burden on interstate commerce is inextricably tied to Iowa's location and the choices of other surrounding states; recall that Iowa's safety choice appeared less "renegade" when compared to similar regulations in New England as Rehnquist argued in dissent.

Any effort by Nebraska to regulate the XL Pipeline is sure to engender litigation.  The TransCanada Corporation has already made available legal memoranda arguing against the constitutionality of Nebraska regulation.  And arguing for the constitutionality of possible acts by Nebraska, legal memoranda are posted on the site of Bold Nebraska.

UPDATE: 10 November 2011: The State Department has put the XL Pipeline on hold with approval from the White House.


November 8, 2011 in Current Affairs, Dormant Commerce Clause, Federalism, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Separation of Powers and Passports, Foreign Affairs

The Supreme Court heard oral arguments yesterday in MBZ (Zivotofsky) v. Clinton, the case testing whether Congress or the President or both have the power to designate (or not) the place of birth on a U.S. passport.  We previewed the argument here.

The separation-of-power issue in the case is obvious: When Congress enacts a law in direct opposition to the President's practice (which, in turn, is driven by the President's foreign policy), who wins?  But the case may turn on a more basic question: Separation of powers about what?

The plaintiffs in the case argued that the case is merely about passports, and not foreign policy.  They said that the case can be decided easily under Justice Jackson's three-part framework in the steel-seizure case, Youngstown Sheet & Tube Co. v. Sawyer: When Congress acts pursuant to its own authority, as here, the President's power is at its lowest ebb.  The plaintiffs translated this as a kind of congressional veto over executive power--that when Congress and the President clash, Congress wins.

But more: The plaintiffs seemed to argue that even if the passport power implicates foreign affairs, Congress has a "shared" power with the President over foreign affairs.  This leaves little exclusive power to the President over foreign affairs--an approach to executive authority over foreign affairs that Justice Kennedy called "crabbed."  Others on the bench also signalled difficulties with this position; for example, Justice Sotomayor showed how it would "hobbl[] the President with respect to situations that occur frequently [in foreign affairs]," like changes in governments and changes in sovereignty.  Justice Scalia put perhaps the finest point on all this:

Mr. Lewin, you're--it seems to me you are not arguing for a co-equal congressional power, you are arguing for a superior congressional power.  You are saying whatever Congress says, the President has to comply with.  Now, that's quite different from saying that they both have authority in the field. 

Transcript, 10-11.

There was an even more basic problem with the plaintiff's approach, though.  That is: What exactly is Congress's authority over passports, and where does it come from?  The plaintiffs didn't have a great answer for that question (from Justice Kagan).

But even with these problems with the plaintiffs' approach--its all-or-nothing nature, its rigidity, and its lack of textual support--the argument was by no means one-sided.  The government similarly dug in its heels on its position on executive authority in foreign affairs: The President has exclusive authority, leaving no room for Congress.  But it's not obvious that such expansive authority here derives from the text--the government only has the reception clause (its power to receive ambassadors) and its historical gloss on that power.  And the government's theory didn't adequately address how it squares with Congress's power of the purse, its advice-and-consent power over appointments, and its oversight authority--whether those quite clear congressional authorities could in effect override the President's execution of the foreign affairs power.  (The government said that a congressional act defunding a foreign affairs policy might raise constitutional problems, but it didn't say why.  This is exactly what the government faced with congressional defunding of transportation of Guantanamo detainees to the mainland for criminal trials in Article III courts.  The Obama administration balked, but only a little, and basically acquiesced in that act of congressional control over a foreign affairs matter.)

Moreover, the Court was quick to recognize that the government's aggressive position on the political question doctrine--that the issue here is textually delegated to the President alone, and therefore the courts shouldn't intervene--answers the underlying merits question.  That is, to decide that the Constitution gives the power to the President  for the purpose of the political question doctrine is also to decide that the Constitution gives the power to the President for the purpose of actualizing the power.  This didn't seem to sit well.

Some on the bench floated intermediate positions.  On the merits, both Congress and the President probably have some power over place-of-birth designation on passports, but that that power might be very different.  The President may have some power by way of recognition, derived from the reception clause; but Congress, too, may have power by way of appropriations, appointments, and oversight.  On the political question doctrine, this case could well be a "political question" (or otherwise nonjusticiable) for that very reason--that both political branches have some power, but that their powers are different, and that the courts should let them work it out (as they do in so many issues).  These intermediate positions offer a more moderate and appealing view of shared power than the extreme views of either side in the case, and they keep the Court well away from delving into the underlying foreign policy itself--something that many on the Court seemed concerned about.


November 8, 2011 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 7, 2011

Court Enjoins FDA Tobacco Labels

Judge Richard J. Leon (D.D.C.) today issued a preliminary injunction in R.J. Reynolds v. U.S. FDA prohibiting the FDA from enforcing its rules requiring new graphic labels on cigarette cartons.  In an opinion rife with disdain for the labels, frustration with the government's position, and a disjointed approach to strict scrutiny, the court concluded that the FDA requirements and the new labels violate the First Amendment Speech Clause. 

Ucm233072The court wrote that the labels are a form of compelled commercial speech that do not involve "purely factual and uncontroversial information" designed to protect consumers from "confusion or deception."  Thus the labels do not get the lower standard in Zauderer v. Office of Disciplinary Counsel.  Instead, the court wrote, the label requirement must meet strict scrutiny.

The court concluded that the government had trouble under both parts of the strict scrutiny analysis--the end and the means.  As to the end, it wrote that government's stated objective to inform consumers about the dangers of tobacco was undermined by evidence that the government evaluated the relative impact of different warning labels.  The court said that this suggests that the government's true objective was to change consumer behavior (and not merely to inform them).  But it didn't say whether this was a "compelling" interest; instead, it concluded that the label requirement wasn't narrowly tailored.

On narrow tailoring, the court wrote that sheer size of the labels--50% of the front and back of cigarette packs and the top 20% of printed advertising--renders them "anything but narrowly tailored":

Appropriating the top 50% of the front and back of all cigarette packages manufactured and distributed in the United States is hardly a directive narrowly designed to achieve the Government's purpose (whatever it might be).  To the contrary, the dimensions alone strongly suggest that the Rule was designed to achieve the very objective articulated by the Secretary of Health and Human Services: to "rebrand[] our cigarette packs," treating (as the FDA Commissioner announced last year) "every single pack of cigarettes in our country" as a "mini-billboard."  A "mini-billboard," indeed, for its obvious anti-smoking agenda!

Ucm233090Op. at 20 (emphasis in original).  But the court didn't explain why the sheer size of the labels alone renders them inappropriately tailored to meet an objective to inform consumers, or an objective to change behavior.  Indeed, by its own reasoning, it seems that the labels are well designed to do both--all too well.  After all, a mini-billboard on a cigarette pack seems an ideal way to promote an anti-smoking agenda to consumers of tobacco.  It seems that that's exactly what the Commissioner said, and what the court acknowledged--a mini-billboard for its anti-smoking agenda.  (There's nothing to prohibit government from taking an anti-smoking position, or, for that matter, a pro-smoking position.  This is a matter of policy.)

The court's analysis of the graphic images is moderately clearer.  Here it wrote that the graphic images aren't necessary to achieve the government's objective to inform consumers--that the FDA could achieve this objective in a different way, e.g.: "they could publish a graph demonstrating the difficulty of quitting smoking by showing the correlation between the number of people who try to quit and the percentage who actually do."  Op. at 21.  Maybe.  But that seems to depend on what the government's objective is--information, or changing behavior, or something else--and the court passed on that question, and on the related question whether the objective is "compelling."  The court itself acknowledged that the government conducted studies to determine which labels created the greatest impact on consumers.  If changing behavior is the government's goal, and if that goal is "compelling," then the court has to wrestle with whether these particular labels are narrowly tailored to achieve that end.  It didn't.

In the end, the court held that there's the plaintiffs demonstrated a likelihood of success on the merits (free speech) and that they demonstrated irreperable harm absent an injunction.  The court issued an injunction against enforcement of the label requirement for 15 months after a final ruling by the court--in order to give the plaintiffs enough lead time to impement the requirements should the final judgment go the other way.

We previously posted on the labels here.


November 7, 2011 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Occupy Movements and the First Amendment: Update on Atlanta and Sacramento

Two new noteworthy lawsuits raising First Amendment issues have been filed against the cities of Atlanta and Sacramento by "Occupy" protesters.  We've previously discussed the Ft Myers, Florida & Dallas, Texas litigation here, as well as the unique public-private nature of NYC's Zuccotti park here, the anti-mask arrests in NY here.

PermitThe Atlanta complaint filed in federal district court seeks an injunction of Atlanta ordinance section 110-60 that prohibits the use of parks after 11.00pm and before 6.00am.  The ordinance itself contains an exception "if the person has a festival or assembly permit for consecutive days and is performing duties not possible during the normal festival or assembly hours."  The complaint also alleges that the Mayor signed an executive order allowing Occupy Atlanta protesters to stay in Woodruff park until November 7, 2011, but on October 25, 2011, the police department arrived in riot gear and horseback and arrested 52 protesters, all of whom were charged with a violation of §110-60.  The complaint alleges that the action singles out political speech while allowing other activities including commercial ones; as a content restriction the ordinance does not survive strict scrutiny.

The Sacramento complaint filed in federal district court in California seeks an injunction of a Sacramento ordinance §12.72.090 that similarly limits night use of the park:

    A.     No person shall remain or loiter in any public park:
1.      Between the hours of midnight Friday or Saturday and five a.m. of the following day; and
2.      Between the hours of eleven p.m. Sunday through Thursday and five a.m. of the following day.

    B.     The prohibitions contained in subsections (A)(1) and (A)(2) of this section shall not apply:
1.      To any person on an emergency errand;
2.      To any person attending a meeting, entertainment event, recreation activity, dance or similar activity in such park provided such activity is sponsored or co-sponsored by the department of parks and community services or a permit therefor has been issued by the department of parks and community services;
3.      To any person exiting such park immediately after the conclusion of any activity set forth in subsection (B)(2) of this section;
4.      To any peace officer or employee of the city while engaged in the performance of his or her duties.

    C. The director, with the concurrence of the chief of police, may designate extended park hours for any park when the director determines that such extension of hours is consistent with sound use of park resources, will enhance recreational activities in the city, and will not be detrimental to the public safety or welfare. The prohibitions contained in subsections (A)(1) and (A)(2) of this section shall not apply to any person present in a public park during extended park hours designated pursuant to this subsection.

    D. The chief of police, with the concurrence of the director of parks and community services, may order any park closed between sunset and sunrise when he or she determines that activities constituting a threat to public safety or welfare have occurred or are occurring in the park and that such closing is necessary to protect the public safety or welfare. At least one sign designating the sunset to sunrise closing shall be installed prominently
in the park. When a park is ordered closed between sunset and sunrise, it is unlawful for any person to remain or loiter in said park during said period.

There were arrests in Caesar Chavez Park and the plaintiffs also request that enforcement of the ordinance be enjoined.  The plaintiffs claim that the law violates the First Amendment.  Again, the exceptions to the law as well as the discretion without specific standards are highlighted.

Both of these ordinances could prove troublesome to their respective cities.  The Sacramento ordinance allows permits and the discretion afforded to the city to allow night time use "consistent with sound use of park resources, enhance recreational activities in the city, and will not be detrimental to the public safety or welfare" seems susceptible to arbitrary use.  Evidence of previous permits or waivers could enhance the claim.  The Atlanta ordinance seems more narrow, but the Mayor's alleged executive order and then its violation could prove especially problematical under the First Amendment.

Again, perhaps as in Dallas, there can be a negotiated settlement, and the problems of Oakland can be avoided.


November 7, 2011 in Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, November 6, 2011

Argument Preview: Foreign Affairs and Separation of Powers

The Supreme Court will hear arguments on Monday in MBZ (Zivotofsky) v. Clinton, a case that on its face tests whether Congress or the President has authority to name the place of birth on a U.S. passport--but it's likely about much more.

The case arose when two U.S. citizens living in Israel sought a passport for their child, born in Jerusalem, with a place of birth as "Jerusalem, Israel."  Embassy officials agreed to designate the place of birth "Jerusalem," but refused to designate "Israel."  The officials' refusal was based on long-standing U.S. policy not to recognize Jerusalem as part of Israel and U.S. State Department regulations that prohibit the designation of "Israel" as the country of birth for any U.S. citizen born in Jerusalem.

The parents sued.  They pointed to the Foreign Relations Authorization Act, Fiscal Year 2003, that requires the Secretary of State to designate "Israel" as the country of birth for any U.S. citizens born in Jerusalem who so requests.  But President Bush issued a signing statement on the Act that claimed that this provision was unconstitutional and said that the executive branch would decline to enforce it.

The case thus pits the President against Congress on the question of which branch has authority over the birthplace on the passport.

The lower courts dismissed the case, holding that it raised a nonjusticiable political question.  The Zivotofskys appeal that ruling.  But the Supreme Court also directed the parties to argue the merits: whether the Act unconstitutionally infringes upon the President's authority in foreign affairs.

The Zivotofskys argue that the case involves a run-of-the-mine issue relating to passports--the mere designation of a place of birth, which serves identification objectives, not foreign policy objectives.  Thus in their view the case does not involve a political question, and requiring the designation of "Israel" as a country of birth for a U.S. citizen born in Jerusalem is within congressional authority. 

Secretary of State Clinton argues that the President's Article II power to receive Ambassadors includes the power to recognize (or not) foreign sovereigns and the power to designate them (or not) on U.S. passports.  She also argues that this is a political question because of the sensitive foreign policy issues behind the State Department regulation--the kind of issues that are delegated to the President alone under the Constitution.

The fact that the Court directed the parties to brief the merits suggests that it'll say at least something about the merits.  If it does, it seems likely that it'll say something very narrow--dealing only with the extent of the President's authority to receive Ambassadors as against any congressional authority over passports.  But even that narrow ruling could say something broader about the respective roles of the political branches over foreign policy--a much broader question.  This seems to be a narrow, even small, case on the surface, but there are potentially very big issues beneath.

As to presidential signing statements: it seems unlikely that the Court will say anything at all about them: this issue is not squarely before the Court; the parties did not brief it thoroughly; and the Court doesn't have to deal with it to decide the case.


November 6, 2011 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)