November 19, 2011
White House Objects to Detainee Provisions in Defense Authorization Bill
The White House on Thursday issued a statement objecting to certain provisions in the National Defense Authorization Act for Fiscal Year 2012, now before the Senate.
- The White House objects to Section 1031 for codifying its detention authorities that the courts have already recognized under the AUMF. "[F]uture legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people."
- The White House "strongly" objects to Section 1032, which would mandate military custody for certain terrorism suspects, but not for U.S. citizens or lawful residents. "[T]he provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests."
- The White House objects to Sections 1033, 1034, 1035, and 1036 which restrict the transfer of detainees to a foreign country and restrict funds for transferring or detaining them within the U.S. "The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. . . . [The] ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military's ability to transfer its detainees as operational needs dictate. . . . [And] Section 1035 conflicts with the consensus-based interagency approach to detainee reviews . . . which establishes procedures to ensure that periodict review decisions are informed by the most comprehensive information and the considered views of all relevant agencies. Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense."
The White House concludes with a veto threat. The Senate takes the measure up again on Monday.
Recall that President Obama issued a signing statement on the current restrictions on detainee transfer, arguing that the restrictions interfered with the President's Article II authority, but stopped short of calling them unconstitutional.
Justice Thomas' Continuing Ethical Woes
The newest question regarding Justice Thomas' ethical practices focuses on the Justice's nondisclosure of his wife's income.
Justice Thomas has been criticized previously regarding funding of a private museum and for the Tea Party activities of his wife Ginny Thomas. But this newest controversy focuses on Ginny Thomas' substantial income earnings. Since 1997, according to a table prepared by the Alliance for Justice, she has been paid from various sources: in 1997-8 from then-House Majority Leader Dick Armey, in 2000-2008 from the Heritage Foundation, and in 2008-2009 (the last year reported) from Hillsdale College. However, Justice Thomas recorded his wife's income during these years as "NONE" - - - although the known income was 1.6 million dollars.
A letter sent yesterday from 52 members of Congress to Chief Justice Roberts, as Presiding Officer of the Judicial Conference, urges a "referral to the Attorney General for further investigation." The congressional members contend it would be very difficult for Justice Thomas to argue that he misunderstood the "filing instructions" given that he had disclosed his wife's income for the ten years before 1997, but then "misunderstood them for the next thirteen years." The letter cites section 104(b) of the Ethics in Government Act of 1978, a provision that reads:
The head of each agency, each Secretary concerned, the Director of the Office of Government Ethics, each congressional ethics committee, or the Judicial Conference, as the case may be, shall refer to the Attorney General the name of any individual which such official or committee has reasonable cause to believe has willfully failed to file a report or has willfully falsified or willfully failed to file information required to be reported. Whenever the Judicial Conference refers a name to the Attorney General under this subsection, the Judicial Conference also shall notify the judicial council of the circuit in which the named individual serves of the referral.
Unlike some other judicial ethical rules that do not apply to Supreme Court Justices as we previously discussed, the disclosure requirements under the Ethics in Government Act do seem to apply. Section 101(f) includes as a covered employee: "(11) a judicial officer as defined under section 109(10)." Section 109(10) defines “judicial officer” as "the Chief Justice of the United States, the Associate Justices of the Supreme Court, and the judges of the United States courts of appeals, United States district courts . . . and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior."
[image: Clarence Thomas, Virginia Thomas, and Byron White, via]
November 18, 2011
Occupy Toronto and the Charter
The Canadian Charter of Rights and Freedoms names as fundamental freedoms for everyone:
- (a) freedom of conscience and religion;
- (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- (c) freedom of peaceful assembly; and
- (d) freedom of association.
These section 2 rights, like other rights, are qualified by section 1: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
This constitutional balancing is now occurring over the Occupy Toronto encampment at St. James Park.
The city issued a Notice under the Trespass to Property Act, prohibiting tents and presence in the park during the night, and stating that failure to remove tents and "debris" immediately would mean that the City would have it removed. The Notice was challenged in Batty v. Toronto, and Judge David Brown in the Superior Court of Ontario quickly entered an interim stay order, reasoning in part that:
The protesters have encamped in the Park for a month. They are now being asked to leave within a day. They have come before this Court, as members of the public, asking the Court to adjudicate on their rights. In these circumstances I think the most appropriate way to balance the interests of all concerned is to maintain the status quo for a very short period of time and require the parties to proceed to an early adjudication of this proceeding.
The hearing was set for today and being tweeted live on the cbc website here. From such reports, it seemed as if Judge Brown was not sympathetic to the Charter rights arguments, including a distaste for extended drumming as protected expression.
The Canadian Civil Liberties Association was also given time to argue as an intervenor. The CCLA's Factum (brief) argues that the erection of tents and the presence during night hours are expressive and "are inextricably linked to the message conveyed by the protesters," citing several non-Supreme Court of Canada cases. Given this expressive activity, the burden is on the City to demonstrate that its actions constitute a reasonable limit on the right. Further some "measure of inconvenience must be accommodated in a free and democratic society to ensure that these rights are protected." As for the possibility of a permit, the CCLA argues that the discretionary nature of the permit guidelines render the regulations overbroad and the scheme restricts more speech than necessary (the "minimally impairing" test).
While Judge Brown's interim order stated he would "try to release my reasons for decision no later than 6 p.m. this coming Saturday, November 19, 2011," it is now reported that he has extended this time until Monday.
Doe v. Reed: After Remand, Emergency Appeal Denied
The latest installment in the continuing saga of the quest for anonymity by "Protect Marriage" members and supporters is the Ninth Circuit's denial of the emergency appeal.
As we most recently discussed, on a remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
In this latest round, the John Doe plaintiffs sought to "enjoin the Washington Secretary of State from further releasing the R-71 petitions, the Intervenors from distributing the petitions, and the district court from further disclosing the identity of Protect Marriage Washington’s John Doe parties and witnesses in the district court’s unredacted order."
In its brief opinion, over one dissent, the Ninth Circuit panel stated it "preliminarily believes that the appeal is moot due to the release of R-71 petitions" and thus held that the plaintiff/ appellants’ "renewed emergency motion for an injunction pending appeal is denied."
November 17, 2011
Arizona Supreme Court to Jan Brewer: Unconstitutional to Remove Chair of Restricting Commission
The Arizona Supreme Court issued an order today finding the controversial removal of Colleen Mathis, the Chair of the Arizona Independent Redistricting Commission, by Governor Jan Brewer (pictured right) was unconstitutional.
Here is the entire order:
Having considered the filings in this matter by the petitioner, the intervenor, the respondents, and the amici curiae, and the arguments of counsel,
1. The Court accepts jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution;
2. The Court concludes that the issues presented in this matter are not political questions and are therefore justiciable. See Brewer v. Burns, 222 Ariz. 234, 238-39 ¶¶ 16-22, 213 P.3d 671, 675-76 (2009);
3. The Court concludes that the letter of November 1, 2011, from the Acting Governor to the intervenor Colleen Mathis does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” by the intervenor Mathis, as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution;
Therefore, the Court grants the relief requested by the intervenor Mathis and orders that she be reinstated as chair of the Independent Redistricting Commission.
The Court in due course will issue an opinion more fully detailing its reasoning in this matter.
Article 4, Part 2, Section 1(10) of the Arizona Constitution provides "After having been served written notice and provided with an opportunity for a response, a member of the independent redistricting commission may be removed by the governor, with the concurrence of two-thirds of the senate, for substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office."
“The Arizona Constitution provides that the Governor has direct oversight of the Independent Redistricting Commission, as well as the ability to remove any member due to "substantial neglect of duty‟ or "gross misconduct in office.‟ I invoked that authority today with my decision to remove IRC Chairwoman Colleen Mathis, and I‟ve called the Arizona Legislature into Special Session so that the State Senate may concur with this removal, in accordance with the Constitution.
“I recognize that my decision will not be popular in some quarters. I certainly did not reach it lightly. However, the conduct of the IRC – led by Chairwoman Mathis – has created a cloud of suspicion that will not lift. A flawed redistricting process has resulted in a flawed product. Just as disturbing, the public does not have confidence in the integrity of the current redistricting process. As Chairwoman of this Commission, the buck stops with Ms. Mathis.
“Today‟s action isn‟t the easy thing, certainly. But I‟m convinced it‟s the right thing. I will not sit idly-by while Arizona‟s congressional and legislative boundaries are drawn in a fashion that is anything but Constitutional and proper. Arizona voters must live with the new district maps for a decade.
“I urge the Senate to act quickly so that a newly-constituted Redistricting Commission may complete its duties in time.”
The dispute seems to be a classic one in which the Executive removed an official (and was supported by the legislature) based upon a disapproval or disagreement rather than the constitutionally required good cause standard.
More on the Arizona Supreme Court's full opinion when it appears.
Proposition 8 and the Question of Constitutional Standing: In the California Supreme Court
The question - - - certified by the Ninth Circuit to the California Supreme Court in September - - - was 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 short answer from the California Supreme Court today is "Yes." Or, as the conclusion to the court's opinion in Perry v. Brown states:
when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
It takes the court some 60 pages to reach this conclusion in an unanimous opinion written by the new Chief Justice Cantil-Sakauye, with an additional 7 page concurring opinion by Justice Kennard. Kennard wrote to "highlight the historical and legal events that have led to today‘s decision and to explain why I concur in that decision," and reiterated her position that is it is the judicial role to decide whether "excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution‘s equal protection guarantee." On the contrary, the main opinion de-emphasized Proposition 8: "the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter."
The California Supreme Court states that "past official proponents of initiative measures in California have uniformly been permitted to participate as parties — either as interveners or as real parties in interest — in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored," and without any specific showings. The opinion, it seems, could have ended there but the California Supreme Court stated it felt it was "useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding." Although the opinion emphasized that its "discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts," certainly its analysis will be carefully considered by the Ninth Circuit.
The court's major analytic attention, however, was devoted to matters of state constitutional law focused on the initiative process. In these cases, non-state actors have had the ability to defend the initiative from challenges. Additionally, the court noted that "even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public officials to be permitted to participate as formal parties in a court action to assert the public‘s or the state's interest in upholding or enforcing a duly enacted law."
If the Ninth Circuit fully credits the California Supreme Court's opinion and finds it sufficient to confer Article III standing, the court will proceed to the merits and review Judge Walker's opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) that Proposition 8 violates the Constitution.
[image: Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall via].
Occupy and the First Amendment: Updates #N17 and Journalists
Today's mass action named #N17 for November 17, two months after the start of "Occupy Wall Street" in Zuccotti Park, New York, is sure to result in further First Amendment and other constitutional controversies, adding to those of the last weeks.
The New York City "eviction" or "dismantling" of the Zuccotti Park encampment resulted in a TRO which was later rescinded, as we discussed most recently here.
The police intervention in Zuccotti Park included several arrests of members of the press. The Committee to Protect Journalists has issued a statement of protest as did other press organizations. [UPDATE: A useful tracking of journalist arrests by Josh Stearns here].
In addition to the arrests of members of the press, the police action was apparently scheduled at a time when the press was least likely to be present. These actions were reportedly defended by NYC Mayor Bloomberg as necessary to "prevent the situation from getting worse" and "to protect the members of the press.” The question of press access was considered by the United States Supreme Court in Houchins v. KQED, decided in 1978, in which a plurality of the Court stated that "the media have no special right of access" that was "different from or greater than the public generally." In KQED, however, the right of access involved a jail, not a public place. However, Justice Stewart's opinion noted that the First Amendment's free press clause should not be considered "an accident" and not merged simply with free speech.
The NYC police action occurred at the same time as police actions in other cities, apparently not by coincidence, according to conjectures from the fact of multi-city mayoral conference calls. A letter of complaint about police practices and the First Amendment is being submitted by multiple parties to the Assistant Attorney General for Civil Rights, Thomas Perez.
Meanwhile, the number of lawsuits arguing First Amendment issues has increased. For example, the Ft. Myers complaint which we discussed previously resulted in an 40 page Opinion by United States District Judge John Steele granting, in part, the motion for a preliminary injunction.
The Judge enjoined the enforcement of Ordinance §86-153(a), which states:
No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of
police or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting.
The Judge enjoined only the enforcement of the bolded portions of other ordinances:
Except for unusual and unforeseen emergencies,parks shall be open to the public every day of the year during designated hours. The opening and closing hours shall be posted for public information. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities.
[Prohibited]: Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace.
On the other hand, a federal judge ruled from the bench after a five hour hearing that Occupy St. Louis was not entitled to a preliminary injunction against the enforcement of its ordinances regarding a 10:00pm closing of a city park.
November 15, 2011
Occupy Wall Street: Judge denies TRO for Zuccotti Park
As we previously posted, the early morning police eviction of protesters from NYC's Zuccotti park by police officers was quickly followed by a Temporary Restraining Order prohibiting the city from evicting protesters from the park and enforcing rules prohibiting tents and other property.
The hearing on that order, before Judge Michael Stallman, resulted in a new order denying the motion for a more longstanding temporary restraining order.
In Matter of Waller v City of New York, the judge assumed that the First Amendment applied. However, he held that the "movants have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment." Judge Stallman wrote:
The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely. Neither have the applicants shown a right to a temporary restraining order that would restrict the City's enforcement of law so as to promote public health and safety.
Occupy Wall Street: Eviction and Temporary Restraining Order
Early this morning, police officers "evicted" the protesters from the original "Occupy Wall Street" site at Zuccotti Park in New York City. (A good round-up of the early news reports is here).
The Mayor of New York, Michael Bloomberg, issued a statement including his interpretation of the First Amendment issues:
No right is absolute and with every right comes responsibilities. The First Amendment gives every New Yorker the right to speak out – but it does not give anyone the right to sleep in a park or otherwise take it over to the exclusion of others – nor does it permit anyone in our society to live outside the law. There is no ambiguity in the law here – the First Amendment protects speech – it does not protect the use of tents and sleeping bags to take over a public space.
There will be a hearing in New York state court at 11.30 a.m.
November 14, 2011
Supreme Court to Hear Health Care Challenge
The Supreme Court today granted review in three appeals of lower court rulings on the constitutionality of the Affordable Care Act. The Court allocated five-and-a-half hours for oral argument, as follows:
- 90 minutes on the severability of the individual mandate, the sole question presented in 11-393, National Federal of Independent Business, et al. v. Sebelius, and the third question presented in 11-400, Florida, et al. v. Department of Health and Human Services (the states' appeal of the Eleventh Circuit case).
- 2 hours on congressional authority to enact the individual coverage provision, the first question in 11-398, Department of Health and Human Services v. Florida, et al. (the government's appeal of the Eleventh Circuit case).
- 1 hour on whether challenges to the ACA are barred by the Anti-Injunction Act, in 11-398. The Court directed the parties to brief and argue this question. (The government urged the Court to take up this issue in its cert. petition, in order to resolve the split between the Sixth and Fourth Circuits. Because the government says that the AIA does not apply--the same position taken by the challenging states--it also suggested that the Court appoint counsel to argue that issue.
- 1 hour on whether Medicaid expansion spills from encouragement to coercion under South Dakota v. Dole and thus violates "basic principles of federalism," the first question in 11-400, Florida, et al. v. Department of Health and Human Services.
The Court put all the briefs on a single page, here.
Congressional authority, the second bullet above, has received the most attention in public debates and most lower court cases. But the other issues--save for the AIA issue--are nearly as important.
In particular: The Court's consideration of Medicaid expansion could be quite significant. The states framed this issue as a direct challenge to South Dakota v. Dole under "basic principles of federalism." This opens all kinds of doors for the Court to reexamine federal conditioned spending, the Tenth Amendment, and, more generally, federalism. The Roberts Court has signalled its openness to consider these kinds of claims (as in last Term's decision in Bond v. United States, holding that an individual could bring a Tenth Amendment and federalism claim against a federal criminal law), but it has also signalled that the substance hasn't much changed (as in U.S. v. Comstock, flatly rejecting a Tenth Amendment and federalism argument that Congress intruded too far into an area reserved for the states by authorizing the continued detention of "sexually dangerous" federal prisoners beyond their release date). Given the reliance interests on South Dakota v. Dole--the federal government operates many mammoth spending programs that come wtih strings--it's hard to imagine that the Court would overturn that case. Still, the ACA challenge will reopen these questions and give the Roberts Court an opportunity to put its own stamp on federalism, even if that stamp is working within the Dole framework.
Atlas Shrugged and Economic Liberties
An interesting segment on NPR's Morning Edition comparing Ayn Rand's economic thoughts to pronouncements of current politicians. Rand is the author of the novels Atlas Shrugged (1957) and The Fountainhead (1943).
The highlight is a 1959 interview with Rand by Mike Wallace, who asks about the United States' political direction of "the gradual growth of social, protective legislation, based on the principle that we are our brothers' keepers."
These programs are destroying individual liberties, Rand says, especially the freedom of producers, entrepreneurs, businessmen. The government has no right to take their property, she says.
"I imagine that you're talking now about taxes," Wallace says. "And you believe that there should be no right by the government to tax. You believe that there should be no such thing as unemployment compensation, regulation during times of stress."
"That's right," Rand replies. "I am opposed to all forms of control. I am for an absolute, laissez-faire, free, unregulated economy."
A video of the interview is available in 3 parts; here's part 1:
While the usual constitutional law link might be Lochner, Rand's interview could prompt an interesting discussion of Commerce Clause, Takings Clause, or Taxing Clause, or Campaign Finance cases - - - and of course the Affordable Care Act (last discussed here).
November 13, 2011
Cole on Targeted Killing
David Cole (Georgetown) revisits the government's targeted killing of Anwar al Awlaki in a piece titled Killing Our Citizens in the New York Review of Books. Cole reopens and criticizes the killing, which faded from the mainstream news cycle within about a week of al Awalaki's death. We covered it most recently here.
Cole takes on the idea that al Awlaki posed an imminent threat:
But al-Awlaki was not on the battlefield. He was in Yemen. And he was not even alleged to be a part of al-Qaeda or the Taliban, the two entities against whom Congress authorized the president to use military force in a resolution passed one week after the terrorist attacks of September 11, 2001. That resolution continues to provide the legal justification for the war on al-Qaeda and the conflict in Afghanistan, but it is limited to those who attacked the US on September 11 and those who harbor them. Al-Awlaki was not alleged to be part of either group, but instead a leader of AQAP, an organization in Yemen founded in 2009, long after the September 11 attacks. He has never been tried, much less convicted, for any terrorist crime.
And more: al-Awlaki's case against the government, seeking to stop the government from killing his son, was dismissed based on lack of standing and the political question doctrine.
The part of this episode that ought to worry us most is the secrecy. We know almost nothing about the legal justification for the killing, or the process through which the White House designated al Awlaki for targeted killing. As Cole writes:
Secret memos, with or without leaked accounts to The New York Times, are no substitute for legal or democratic process. As long as the Obama administration insists on the power to kill the people it was elected to represent--and to do so in secret, on the basis of secret legal memos--can we really claim that we live in a democracy ruled by law?