December 3, 2011
Ban on Receiving Guns Withstands Second Amendment Challenge
Judge Jack Weinstein (E.D.N.Y.) yesterday rejected a claim that the federal law criminalizing the receipt of a firearm in interstate commerce violates the Second Amendment. The case, U.S. v. Laurent, arises out of an indictment under 18 U.S.C. Section 922(n), which says:
It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Laurent's indictment was for receiving a firearm in violation of Section 922(n). He challenged that provision on its face under the Second Amendment, among others.
Judge Weinstein wrote that intermediate scrutiny is appropriate:
The Supreme Court has indicated that some form of heightened scrutiny is necessary when the conduct at issue falls within the core of the Second Amendment right to bear arms for the purpose of self defense in the home. [Heller] As already noted, most courts of appeals have found that regulations which substantially burden the right to keep and to bear arms for the purpose of self-defense should receive intermediate scrutiny. By contrast, laws that do not substantially burden the right to keep and to bear arms for this purpose are not entitled to any level of heightened scrutiny.
Judge Weinstein ruled that Section 922(n) imposes a substantial burden, but satisfies intermediate scrutiny:
The prohibition at issue in this case is less restrictive than other subsections of 18 U.S.C. Section 922, which totally ban possession by particular categories of people, such as felons or misdemeanants convicted of domestic violence. They have survived intermediate scrutiny.
Concededly, given the presumption of innocence, the government's categorical presumption that all individuals under indictment for a felony are more likely to misuse firearms is somewhat suspect. Congress appears to have determined, however, that a narrower ban would not serve its interest in public safety. Initially, Congress only limited receipt of firearms by violent indictees. After three decades of experience, it saw the need to expand the prohibition to all indictees.
As demonstrated by the facts of this case, it cannot be said that Congress' determination to criminalize the act of receiving a firearm while under indictment was unreasonable, and that "no set of circumstances . . . under which [the statute] would be valid." Laurent was initially indicted in state court for crimes arising out of gun play in a residential building. He was subsequently arrested after allegedly robbing another individual at gun point. The fact that Laurent was charged with the instant crime because he apparently committed a crime of violence while under indictment undermines any claim that he might have that Section 922(n) is not substantially related to preventing him from engaging in further violence. He is hardly the law-abiding householder with a gun at home to protect his family. The statute is thus also not unconstitutional as applied to this defendant.
The fact that Laurent may eventually plead to a misdemeanor is not of statutory or constitutional significance. The crime is committed when the firearm is obtained while the defendant is under a felony indictment; dismissal, acquittal, or conviction does not affect that fact. So long as the government can show that he was under indictment for a felony at the time he received a firearm, he may be convicted under Section 922(n).
Because the statute is substantially and directly related to the important government interest in public safety, it survives intermediate scrutiny under the Second Amendment.
December 2, 2011
White House Renews Objections to Detainee Provisions
White House Press Secretary Jay Carney announced today that the Obama Administration continues to object to the detainee provisions in the National Defense Authorization Act for Fiscal Year 2012, S. 1867. "So our position has not changed." He also renewed the veto threat.
The Senate overwhelmingly passed the bill earlier this week, after compromise language was added that said the bill did not alter existing law. It's not clear that the language did much of anything.
The White House objects to the requirement in the bill that the government keep alien detainees in military detention, the prohibition on using funds to transfer detainees, among others. Here's what Carney said today:
By ignoring these nonpartisan recommendations, including the recommendations of the Secretary of Defense, the Director of the FBI, the Director of National Intelligence and the Attorney General, the Senate has unfortunately engaged in a little political micromanagement at the expense of sensible national security policy. So our position has not changed. Any bill that challenges the President's critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation would prompt his senior advisors to recommend a veto.
Senator Patrick Leahy and Assistant Attorney General Lisa Monaco, head of the National Security Division at DOJ, also voiced objections today, according to the Blog of the Legal Times. Monaco spoke specifically about the military detention requirement, saying that it would undermine the executive's prosecutorial authority and tie the administration's hands in dealing with detainees.
Chisholm v. Georgia as Fiction?
Chisholm v. Georgia (1793) is often considered the first important constitutional case rendered by the United States Supreme Court, predating Marbury v. Madison by a decade.
Certainly the importance of Chisholm v. Georgia is mitigated by the Eleventh Amendment, specifically passed to "overrule" the opinion, although to what extent remains controversial in Eleventh Amendment doctrine even now. On some views, the Eleventh Amendment adopts Justice Iredell's dissent in Chisholm v. Georgia.
ConLawProf John Orth has written extensively on this history, including in an excellent 1994 essay "The Truth About Justice Iredell's Dissent in Chisholm v. Georgia," 73 North Carolina Law Review 255.
But less careful researchers will be more likely to run across Iredell's dissent marketed as "general fiction" with the author relegated to "No bio available." The text, free elsewhere, is available as an eBook for 99¢.
December 1, 2011
Senate Passes Defense Spending Bill, with Detainee Provisions
The Senate today passed the National Defense Authorization Act for Fiscal Year 2012, S. 1867, with its several provisions dealing with the government's detention authority. Recall that the Obama Administration previously objected to several detainee-related provisions of the bill and threatened a veto.
Today's Senate vote comes after the Senate earlier this week rejected an amendment proposed by Senator Udall that would have stripped the detainee-related provisions from the bill and another amendment proposed by Senator Feinstein that would have prohibited indefinite military detention of U.S. citizens.
According to The Hill, the Senate vote, 93-7, came after an agreement to include compromise language that simply says that the bill does not alter existing law for the detention of U.S. citizens or anyone captured or arrested in the U.S. In other words, the compromise maintains the status quo and punts any hard questions to the courts. It doesn't appear to change anything in the legislation.
In particular, the bill still contains the provisions that the administration objected to: Section 1031, which codifies the government's detention authority recognized by the courts; Section 1032, which mandates military custody for certain terrorism suspects, but not for U.S. citizens and lawful residents (military custody appears to be optional for these); and Sections 1033, 1034, 1035, and 1036, which restrict the government's ability to detain and transfer detainees.
November 30, 2011
Mark Twain and Constitutional Law
It's the 176th anniversary of the birth of Mark Twain, an anniversary that while not a usual celebratory number (100, 150, or even 175) has been attracting some attention.
Mark Twain has also received a bit of attention from the United States Supreme Court in constitutional law cases.
Perhaps most obviously the pseudonymous Mark Twain appears in the context of the First Amendment right to be anonymous. In McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature. Ms. McIntyre had distributed leaflets from “CONCERNED PARENTS AND TAX PAYERS” opposing a proposed school tax levy and was fined. The Court's opinion by Justice Stevens noted that "Great works of literature have frequently been produced by authors writing under assumed names." The supporting footnote first lists "Mark Twain (Samuel Langhorne Clemens)" as an American who first comes to mind, followed by O. Henry (William Sydney Porter), and expanded with reference to writers such as Voltaire, and even making a brief foray into the status of Shakespeare, a controversy now appearing in theatres.
Other references to Twain support Twain's reputation as an eminently quotable writer. William Douglas, dissenting in a First Amendment case regarding the notorious Smith Act, deploys a Twain quote as the opening salvo:
When we allow petitioner to be sentenced to prison for six years for being a ‘member’ of the Communist Party, we make a sharp break with traditional concepts of First Amendment rights and make serious Mark Twain's lighthearted comment that ‘It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them.
Scales v. United States (1961) quoting Twain, Following the Equator (1903). And Justice Harlan, dissenting in the reapportionment case of Whitcomb v. Chavis (1971), discusses the mathematical and theoretical models regarding vote dilution and includes as the entirety of a footnote this: " 'There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.’ Mark Twain, Life on the Mississippi 109 (Harper & Row., 1965)."
The most recent constitutional law citation to Twain is not to one of Twain's pithy aphorisms, but to a simple observation in the nature of a travelogue. Justice Stevens, once again uses Twain in his opinion for the Court, but this time in the text rather than a footnote:
The relevant facts are undisputed. . . . All agree that Lake Tahoe is “uniquely beautiful,” that President Clinton was right to call it a “ ‘national treasure that must be protected and preserved,’ ” and that Mark Twain aptly described the clarity of its waters as “ ‘not merely transparent, but dazzlingly, brilliantly so’ [citations omitted].
The case is Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), quoting Mark Twain, Roughing It 174-175 (1872),in which the Court rejected a takings clause challenge to a moratorium on building in the area surrounding Lake Tahoe.
November 29, 2011
Seventh Circuit: Bond for Infomercial Does Not Violate Free Speech
A three-judge panel of the Seventh Circuit ruled today in FTC v. Trudeau that a lower court's requirement that author and infomercialist Kevin Trudeau post a $2 million bond before airing an infomercial does not violate the First Amendment.
The case arose out of Trudeau's violation of a court-approved settlement with the Federal Trade Commission by airing infomercials that misrepresented his book The Weight Loss Cure "They" Don't Want You to Know About. Here's Trudeau (part 1 of 5; more on YouTube):
The lower court held Trudeau in contempt, ordered him by pay $37.6 million to the FTC (based on consumers' loss as a result of his misrepresentation) and required him to post a $2 million bond before airing any infomercial, misleading or not.
The Seventh Circuit upheld the bond against Trudeau's First Amendment challenge. (It also upheld the $37.6 million sanction.) Applying the Central Hudson test for commercial speech, the panel wrote that "the protection of consumers is a substantial interest," and that "the performance bond directly advances that interest" by making it more likely that future consumers would be compensated for misleading infomercials and by making it less likely that Trudeau will produce misleading infomercials. As to tailoring:
The performance bond meets [the "carefully calibrated" standard in Bd. of Trustees of the State Univ. of New York v. Fox]. First, a bond is required only if Trudeau decides to resume making infomercials. It does not limit Trudeau as an author; it does not curtail Trudeau's attempt to pitch products in any print medium; it does not even apply if Trudeau makes a TV or radio ad under two minutes. Its application targets only the commercial conduct that has caused such tremendous consumer harm in the past--infomercials. Second, the district court set the performance bond at $2 million but took seriously Trudeau's claim that it is beyond what he can afford by allowing him to file an audited financial statement and prove as much in a hearing. Third, the bond requirement is proportional to the amount of harm Trudeau caused by previous deceptive infomercials. If anything, the number seems low given that, over the course of nearly a year, Trudeau's Weight Loss Cure infomercial sold thousands of books each day for many months.
Op. at 11-12 (emphasis in original).
Ninth Circuit to Rehear Case on Gun Show Bans
The Ninth Circuit announced yesterday that it would rehear Nordyke v. King en banc. The case involves a Second Amendment challenge to a municipal gun show ban. The three-judge panel upheld the ban in May; the case will now go to the full Ninth Circuit.
The ruling gives the full Ninth Circuit a chance to determine the standard for Second Amendment challenges. Two of the judges on the panel applied a "substantial burden" test and upheld the ban:
Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. . . . .
The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms in self-defense. . . .
We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.
Judge Gould would have upheld the ban under a rational basis test:
Drawing from First Amendment doctrine, I would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country; I would subject incidental burdens on the Second Amendment right (analogous to time, place, and manner speech restrictions) to reasonableness review.
Constitutional Law Final Exam: 2011 Version
It's time to draft the Constitutional Law final exam. In our previous best practices regarding final exams, we included a discussion of the strategy of using current controversies to frame the exam.
The caveat is that the exam question must include ALL the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.
There are some exciting possibilities for the Fall 2011 Constitutional Law exam.
The Supreme Court’s recent grant of review in three cases on the constitutionality of the Patient Protection and Affordable Care Act (ACA) is an obvious choice. The minimum coverage provision (individual mandate) is an excellent vehicle to test the Article I powers of Congress under the Commerce Clause and Taxing Clause. The Medicaid expansion provision can be used as a focal point for a Spending Clause analysis, with issues of federalism and the Tenth Amendment permeating this discussion as well as the ACA problem as a whole.
MBZ (Zivotofsky) v. Clinton, in which the Court heard oral arguments in early November, is an excellent framework for testing executive power and the application of Jackson’s famous “continuum” in the Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer) included in every Constitutional Law casebook. This is a straightforward case with a direct conflict between the executive and Congress, complete with a Presidential signing statement, and relatively easily understood facts. The lower courts declined to decide the separation of powers issue on political question grounds, so the case provides a great way to combine two distinct doctrines in one essay.
A great dormant commerce clause issue and a preemption issue can be found in various Nebraska bills to regulate the Keystone XL Pipeline, although very recent events including TransCanada’s sudden decision to reroute the pipeline to avoid Nebraska’s Sand Hills area makes the controversy less timely than it was.
State immigration statutes can provide a fertile ground for combining a structural issue (preemption) and rights issues (equal protection, due process, and criminal procedure issues). Alabama HB56 is especially notorious and complex, with two decisions from the district judge, a brief Eleventh Circuit opinion, and a recent complaint regarding denial of marriage licenses. There is also Arizona's well-know SB1070 (district court opinion, Ninth Circuit opinion, petition for cert.) and district court cases from Georgia and Indiana, and more complex litigation involving the Hazelton, PA ordinance (Third Circuit opinion, on remand back to Third Circuit). South Carolina is also a recent and important addition. Including a state immigration issue on an exam will require careful limiting of the issues in the drafting of the question, most likely done by the provisions a professor choses to include in the question.
Another combination of structural and rights issues is available in the continuing Proposition 8 litigation, Perry v. Brown. With the recent California Supreme Court’s advisory decision on the standing of the Proposition 8 “proponents,” the stage is set for the Ninth Circuit to rule on Article III standing as well as on the equal protection and due process issues. Recall that Judge Vaughn Walker’s extensive opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) concluded that the limitation of marriage to opposite sex couples was unconstitutional under the Fourteenth Amendment.
Equal protection and affirmative action questions can be forged from the Sixth Circuit’s conclusion that Michigan’s proposition 2 restricting affirmative action is unconstitutional and the Fifth Circuit’s decision that UT’s affirmative action plan is constitutional, with a well-constructed essay giving students a chance to explore the always popular Stevens’ anomaly as a theoretical perspective.
State laws seeking to regulate abortion are rife with constitutional issues: recent statutes in Texas, Kansas, and Arizona are especially complex, allowing for equal protection and speech arguments, as well as due process.
For First Amendment speech questions, litigation surrounding Occupy is the obvious choice. There are a number of local regulatory schemes that could be tweaked to present arguments regarding “time, place, manner” vs. viewpoint or content restrictions; the Ft. Meyers, Florida litigation provides a good template. The “encampment” issues could focus students on Clark v. Community for Creative Non-Violence, a case in most Constitutional Law casebooks. The unique status of NYC’s Zuccotti Park as a private/public space could be a platform for public forum doctrine, as could the United States Supreme Court building. Additionally, lawsuits against police activity could be the basis for testing criminal procedure and governmental immunity doctrines.
The Stolen Valor case is another excellent choice for a First Amendment speech issue, with the possibility of a comparison of the “pure speech” provision and the “intent to deceive” provision.
As for the religion clauses, there are some interesting possibilities in the classroom: the alleged hostility of a teacher toward religion; the teacher’s display of religious mottos in the classroom; and the use of public school classrooms for church services on the weekends. Other possible issues include the religious exemption and town clerks in the same-sex marriage statute in New York and the proposed male circumcision ban ; and there is always the Establishment Clause controversy surrounding the Mt Soledad cross.
There is a cornucopia of issues that should make drafting the exam a delight - - - and grading the responses a satisfying endeavor.
[image: Rembrandt, A Scholar, 1631, via]
November 28, 2011
Alabama's HB56: Immigrants' Rights to Housing and to Marry
Portions of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, Act 2011-535 - - - more popularly known as HB56 - - - have been enjoined by the district judge in two very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley, and additional sections enjoined by the Eleventh Circuit. However, new litigation continues to challenge aspects of Alabama's immigration scheme.
In the Complaint in Central Alabama Fair Housing Center v. Magee, housing advocacy groups challenge section 30 of HB56 that 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. This "business transaction" apparently includes complying with other Alabama statutes that require "submitting a payment for the annual manufactured home registration fee and obtaining a current identification decal," as well as a permit to move a manufactured or mobile home.
Thus, as United States District Judge Myron Thompson observed in his opinion granting a TRO, the challenge is an "as-applied" one that "raises a host of issues not considered" by the previous courts. Judge Thompson focused on the preemption claim, finding a likelihood of prevailing on its merits. He found that "the evidence reflects that the Alabama Revenue Department and the Elmore County Probate Office initially proposed to use their own, state-created alternative for determining whether, under § 30, an individual has adequately demonstrated his or her lawful citizenship status, but are now in the process of developing a new system that will comply with HB 56." The process is thus very different from those in which employers utilize E-verify. As the Judge stated,
What is clear is, first, that the defendants do not now have in place a definite process that will be in sync with federal immigration law and, second, that they will not have a process in place any time soon. The conclusion that the defendants’ current process (or, perhaps to be more accurate, lack of a definite process) conflicts with federal law is inescapable.
The TRO expires December 7, 2011. A NYT editorial yesterday argued that HB56 is causing Alabama economic damage.
While the definition of "business transaction" in §30 of HB56 is broad, subsection(a) specifically exempts marriage licenses: "Business transaction" "does not include applying for a marriage license." Yet another complaint filed in federal court, Loder v. McKinney, contends that probate offices charged with issuing such licenses are requiring proof of immigration status, despite previous opinions by the Alabama Attorney General. As the complaint alleges, the probate court of Montgomery county lists the requirement of proof of "legal presence" on its website:
Requirements For Persons 18 years or older
Non-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport.
Each applicant must provide one of the following:
1. An official Picture ID (passport, military ID, State issued ID, Driver's License).
2. An original certified copy of the state issued birth certificate (hospital copy not acceptable) and original social security card.
3. U. S. Government issued Immigration Services Picture ID Card (green card, visa, alien resident card, etc.).
The complaint alleges a fundamental right to marry and a violation of the Fourteenth Amendment's due process and equal protection clauses. More about the litigation is available on the Southern POverty Law Center's website here.
Texas Files for Stay in Redistricting Case
As expected, Texas AG Greg Abbott today filed an Emergency Application for Stay of the three-judge panel's interim map of Texas House districts. Paul Clement signed the Application in Perry v. Perez. Appendices to the filing are here. We posted most recently here.
Texas argues that the three-judge court wrongly failed to grant any deference to the state legislature, and thus wrongly assumed the role of super-legislature, and redistricted in violation of equal protection.
As to deference, Texas argues that Upham v. Seamon governs. Under Upham, Texas claims, judicial modifications to legislatively enacted redistricting maps must be limited to "those necessary to cure any constitutional or statutory defect," even when preclearance is denied. And so much more so here, where final preclearance is pending in the U.S. District Court for D.C.
Texas says that the case is not governed by Lopez v. Monterey County, as the lower court ruled. Lopez and similar cases involved covered jurisdictions that failed to submit plans for preclearance. Not so here, Texas says.
As to equal protection, Texas argues that the three-judge court drew districts based on race, in violation equal protection, again with no showing that the Texas legislative map constituted a violation.
In arguing for emergency intervention, Texas claimed that there was nothing "interim" about the panel's map:
Elections will be conducted based on a judicially-drawn map in the absence of any finding--or even felt need to make a finding--that would justify such an extraordinary judical remedy. That is profoundly wrong.
Application, at 6.
November 27, 2011
Texas to Appeal Court-Drawn Districts to Supreme Court
Texas Attorney General Greg Abbott announced that he'll file an emergency stay application with the Supreme Court on Monday to halt the implementation of redistricting maps drawn by a three-judge panel of the U.S. District Court for the Western District of Texas. AG Abbott also announced that Bush Administration SG Paul Clement has joined the Texas legal team.
Recall that a three-judge district court in D.C. denied preclearance under the Voting Rights Act to Texas's redistricting plans for its U.S. House districts and Texas legislative districts. The ruling sent the case to the Western District of Texas to designate a substitute interim plan for the 2012 elections.
The three-judge panel of the Western District drew proposed maps earlier this month. The panel split on the Texas House districts, with Judge Orlando Garcia and Judge Xavier Rodriguez voting for one plan and Judge Jerry Smith of the Fifth Circuit voting for another. The court on Friday denied Texas's motion to stay implementation pending appeal, again dividing 2-1. AG Abbott then announced on Saturday that he'd file with the Supreme Court.
From AG Abbott's press release:
At issue is whether the interim maps imposed by a three-judge redistricting panel violate the U.S. Constitution and federal law, and exceeds the proper role of the judiciary. The State of Texas alleges the panel improperly rejected the will of the elected legislature and redrew the State's House and Senate districts without regard to any established legal or constitutional principles. . . . .
Because the legally flawed maps could create confusion for Texans who wish to become candidates when the filing period opens Monday, the State of Texas is pushing quickly to restore clarity to the process. . . . .
The balance of the release largely quotes from Judge Smith's dissent.