Saturday, February 5, 2011

Constitutional Law as Anchor: Lutie Lytle

"I like constitutional law because the anchor of my race is grounded on the constitution. It is the certificate of our liberty and our equality before the law. Our citizenship is based on it, and hence I love it."


So said Lutie Lytle (pictured).  She was born in 1875 and was among the first African Americans to earn a law degree when she graduated from Central Tennessee Law School in 1898.  She returned to Central Tennessee to teach law and newspaper accounts "claimed that she was the only woman law instructor in the world."   She reportedly taught criminal procedure, evidence, and domestic relations during her brief time in academia.  She later moved to New York and was active in the National Bar Association.   Although information about Lytle's career and life is regrettably sparse, a solid scholarly resource is J. Clay Smith, Jr.'s,  Emancipation: The Making of the Black Lawyer, 1844-1944 (1993).

The annual Black Women Faculty Workshop, hosted by University of Kentucky in 2010 and by Seattle University School of Law in 2009, is named in her honor.  


(H/T Judith Scully)

February 5, 2011 in Fundamental Rights, Gender, History, Profiles in Con Law Teaching, Race | Permalink | Comments (0) | TrackBack (0)

Friday, February 4, 2011

Another Health Care Reform Challenge Dismissed

Judge Keith Starrett (S.D. Miss.) today dismissed a challenge to the individual health insurance mandate in the federal Affordable Care Act.  The case, Bryant v. Holder, involved private Mississippians who do not possess any form of health insurance and who have no desire or intention to purchase it under the mandate.  Judge Starrett ruled, consistent with at least 14 other courts (only four have reached the merits, dividing 2-2), that the plaintiffs lacked standing in their challenge to the ACA under the Commerce Clause, the Takings Clause, the Due Process Clause, and the Tenth Amendment.  (See below on the Tenth Amendment claim.)  We posted most recently on standing in ACA challenges here; we posted most recently on other aspects of ACA challenges here.

Judge Starrett ruled that the plaintiffs failed to allege a "sufficiently impending" injury to support standing:

Plaintiffs' First Amended Petition contains insufficient allegations to establish that they will certainly be "applicable individuals" who must comply with the minimum coverage provision. For example, Plaintiffs did not allege any facts which, if true, would certainly establish that they would not be subject to the provision's religious exemption.  Plaintiffs simply alleged that they will be subject to the minimum essential care provision--a bare legal conclusion which the Court may not accept as true.  They did not include any factual allegations--other than their citizenship--to establish that they will be considered "applicable individuals" according to the provision's terms.

Furthermore, it is not certain from Plaintiffs' allegations that, in the event they were considered "applicable individuals," they would incur the tax penalty for non-compliance.  Their First Amended Petition contains insufficient allegations to establish that they will not be subject to one of the exemptions to the penalty. . . .

Op. at 19 (citations omitted).

Judge Starrett also ruled that Plaintiff Bryant, the State Lieutenant Governor but appearing in his "private and individual capacity here," lacked standing to challenge the ACA under the Tenth Amendment.  In short, Judge Starrett ruled that Bryant's claim alleging an injury to the "sovereign interests of the state of Mississippi" sought to vindicate the rights of a third party, in violation of the third-party standing rule.  Op. at 21-22. 

The Supreme Court will take up a private individual's standing to assert a Tenth Amendment claim later this month in Bond v. U.S.  That case involves a criminal defendant's standing to lodge a Tenth Amendment challenge to federal law. 

Judge Starrett gave the plaintiffs 30 days to amend their complaint.



February 4, 2011 in Cases and Case Materials, Congressional Authority, News, Opinion Analysis, Standing | Permalink | Comments (1) | TrackBack (0)

Freedom of the Press as a Universal Value? Clinton, Carter, Canada, and WikiLeaks

Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."  


 Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid.  The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade.  The complaint alleges:

5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.

 The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts.   A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”

North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice."  At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial.  A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog.  In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:

The right to freedom of expression is just as fundamental in our society as the open court principle.  It fosters democratic discourse, truth finding and self‑fulfilment.  Freedom of the press has always been an embodiment of freedom of expression.  It is also the main vehicle for informing the public about court proceedings.  In this sense, freedom of the press is essential to the open court principle.  Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair.  . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.

This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.

The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations.  The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information.  In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms.  Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback.  The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook.    The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.

ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.


February 4, 2011 in Books, Cases and Case Materials, Comparative Constitutionalism, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fundamental Rights, International, Speech, State Secrets, Teaching Tips, Theory, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)

Thursday, February 3, 2011

St. John's Seeks Visiting Con Law Prof

St. John's seeks a visiting Con Law Prof for the Spring Semester 2012.  Here's the announcement:

St. John's University School of Law is seeking an in-residence Spring 2012 visiting professor to teach Constitutional Law (a 1L required course, 4 credits, in a section of about 85 students) and a second Con Law course (an upper-class elective, 2 credits, subject to be worked out with the visitor).  We seek candidates with Con Law teaching experience and strong student evaluations.

St. John's, a Catholic, Vincentian and metropolitan university, is located in Queens, the most diverse and interesting borough in New York City (near millions of wonderful people who will be willing to debate boroughs, teams, politics, policy, restaurants, and other topics with anyone).  We are committed to academic excellence that values diversity and thus encourage applications from women, minorities, and anyone whose background and experiences would enhance the faculty and school environment.

Applicants should submit a cover letter, curriculum vitae, and names of three references to Professor Vincent C. Alexander, Chair, Faculty Appointments Committee, at, or by mail at St. John's University School of Law, 8000 Utopia Parkways, Queens, NY 11439.


February 3, 2011 in News, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 1, 2011

Presidential Signing Statements Databases

Profs. Neil Kinkopf (Georgia State) and Peter Shane (Ohio State, Moritz) last week posted Signed Under Protest: A Database of Presidential Signing Statements, 2001-2009 (Version 2.0) on SSRN.  The paper updates their earlier work on President George W. Bush's signing statements that objected to provisions of laws on constitutional grounds.  (Their signing statement index from the earlier work is also posted at The American Constitution Society.)

Joyce Green brings the list of signing statements up to date, through President Obama's most recent signing statement on the defense spending bill earlier this month, at her site, Presidential Signing Statements.  (We posted on that most recent signing statement here.)

These signing statements do more than merely object to particular provisions in legislation signed by the President; they also state the President's intention not to enforce or comply with those provisions.  They can thus operate, in effect, as a line-item veto--a device that the Supreme Court ruled unconstitutional in Clinton v. City of New York because it violated the Presentment Clause's requirement that legislation pass both houses of Congress and, in the same form, receive the President's signature in order to become law.  (Unlike the line-item veto, provisions identified by the President as unconstitutional in signing statements are part of the law.  The President just declines to enforce them.)

President Bush was famously vague in his signing statements, often declining to identify the precise basis for his constitutional objection.  The practice left observers guessing as to why he judged provisions unconstitutional.  President Obama came into office with a commitment to increase transparency in his signing statements--to state the constitutional objection with precision, and to support it with analysis.  But even if his signing statements are more transparent, they're often just as aggressive and yield the same result--to in effect nullify a provision of federal law.

Another option: The veto.  Presidents could take a lesson from President Andrew Jackson and veto objectionable legislation.  This approach has the advantage of fully publicizing the President's constitutional objections and forcing the Congress to deal with them (by, e.g., moving to override).  It of course has the disadvantage that many perfectly unbjectionable--and often critical--provisions in lengthy and complicated legislation would get held up while the branches work out the constitutionality of often small and unrelated portions of the legislation.


February 1, 2011 in Congressional Authority, Executive Authority, Scholarship, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Senate Judiciary Committee to Consider Constitutionality of Health Care Reform

The Senate Judiciary Committee will take up the constitutionality of the Affordable Care Act this morning, 10:00 a.m. (EST).  Here's the witness list:

  • Oregon AG John Kroger
  • Randy Barnett
  • Jones Day Partner Michael Carvin
  • Walter Dellinger
  • Charles Fried

The hearing comes on the heels of Judge Vinson's (N.D. Fla.) ruling on Monday that the individual mandate exceeds Congress's Commerce Clause and Necessary and Proper Clause authority, that the mandate is not severable from the rest of the Act, and that therefore the entire Act is unconstitutional.

Judge Vinson's ruling is the second federal district court ruling that the individual insurance mandate exceeds congressional authority.  (We posted on the first one here.)  There are also two federal district court rulings that the mandate falls within congressional authority; we posted here and here.

The hearing will have no legal or constitutional significance.  Anything that can be said about the constitutionality of the Act has already been said (and argued in the courts), and the Senate already made its own judgment on the constitutionality of the Act when it passed it in the first place.


February 1, 2011 in Commerce Clause, Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Monday, January 31, 2011

Judge Vinson Rules Health Care Reform Unconstitutional

Judge Vinson (N.D. Fla.) ruled today in State of Florida v. U.S. Dep't of Health and Human Services that the Patient Protection and Affordable Health Care Act was unconstitutional--in its entirety.  The ruling declared that the individual health insurance mandate exceeded congressional authority under the Commerce Clause and the Necessary and Proper Clause.  Judge Vinson wrote that because the mandate cannot be severed from the rest of the Act, the whole thing was unconstitutional.  We posted previously on the case--which was brought by governors or AGs in 26 states, two private citizens, and a business association--here and here.

In striking down the mandate, Judge Vinson ruled that the Commerce Clause only authorizes Congress to regulate activity, that failure to purchase health insurance is not an activity, and that there's nothing inherent or unique in the health care market or in the decision not to purchase health insurance that ties the failure to purchase health insurance to interstate commerce.

Judge Vinson emphasized throughout his analysis that the question--whether Congress can regulate a non-"activity"--was novel.  This alone, he ruled, did not make it unconstitutional.  But it seemed to put a heavy thumb on the scale in his analysis.  (He didn't seem troubled that other congressional acts upheld under the Commerce Clause were also "novel" when they first came to the courts: wheat production for home use in Wickard v. Filburn and home production and use of marijuana in Gonzales v. Raich, just to name two.  But he did write this about Wickard: "[B]efore Wickard was decided, it is likely that most people (including legal scholars and judges) would have thought it equally "ridiculous" to believe that Congress would one day seek (and be permitted) to regulate (as interstate commerce) the amount of wheat that a farmer grew on a small private farm for his personal consumption."  Op. at 47, n. 20.)

He also emphasized the unbridled power that would result if Congress could require individuals to purchase health insurance: if Congress could do this, he wrote, Congress could do anything--require us to buy certain cars, to buy certain bread, and even to buy broccoli.  These kinds of regulations exceed congressional authority, he wrote, because they run counter to the Framers' intent and to precedent and practice.

Judge Vinson was perhaps most emphatic in writing that the non-act of not purchasing health insurance had no effect on interstate commerce:

If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero.  Of course, any other figure multiplied by zero is also zero.  Consequently, [even the aggregate] impact must be zero, and of no effect on interstate commerce.

Op. at 50.  According to Judge Vinson, it would require "pil[ing] inference upon inference" to get from not insuring to the interstate economy, thus running afoul of the principle in U.S. v. Lopez

Judge Vinson wrote separately about the Necessary and Proper Clause.  He wrote that this Clause also failed to support the individual mandate, largely because the Commerce Clause didn't support the mandate:

The Necessary and Proper Clause cannot be utilized to "pass laws for the accomplishment of objects" that are not within Congress' enumerated powers.  As the previous analysis of the defendants' Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution.  To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established "outer limits" of the Commerce Clause and effectively remove all limits on federal power.

Op. at 62.

Judge Vinson ruled that the Medicaid expansion portion of the Act did not violate the Spending Clause.  He ruled that it clearly met the standards under South Dakota v. Dole and that it didn't unconstitutionally "coerce" the states.  (The states argued that the expansion coerced them into continuing their participation in Medicaid, even as the cost of participating became unsustainable.)

But he nevertheless ruled the entire Act unconstitutional, because, he wrote, the individual mandate wasn't severable from the rest of the Act.

Judge Vinson's ruling is now the second federal district court ruling that the individual mandate is unconstitutional.  (Judge Henry Hudson (E.D. Va.) issued the first ruling last month.)  There are also two federal court rulings upholding the constitutionality of the mandate.


January 31, 2011 in Commerce Clause, Congressional Authority, Opinion Analysis, Recent Cases, Spending Clause | Permalink | Comments (1) | TrackBack (0)

NY's Chief Judge Lippman to Speak about Right to Counsel in Civil Cases

There is a growing movement for a right to an attorney in civil cases, sometimes known as a civil Gideon, coupled with increased funding for civil legal services and legal aid.  We've discussed the right to counsel in civil litigation here, here, here, here, here, and here.

Judge Jonathan Lippman has recently written in the NY Law Journal that:

At best, only 20 percent of the civil legal needs of low-income New Yorkers are being met today. Providers have no choice but to turn away vast numbers of eligible clients, including eight out of every nine in New York City.

One result of this deepening crisis is that the courts are seeing an ever-expanding number of unrepresented litigants. We heard testimony from judges, clients, lawyers and others about what happens when litigants try to navigate the courts without counsel.

Befitting his role as chief judge of New York's highest court, Lippman is not making any constitutional arguments.  Instead, he posits that there is a "moral and ethical obligation" as well as making efficiency and effectiveness claims.  He suggests that

the state begin to reduce the unmet civil legal services needs in those matters that concern the "essentials of life": a roof over one's head, family stability, personal safety free from domestic violence, access to health care and education, or subsistence income and benefits.

This is the recommendation in the Report issued by The Task Force to Expand Legal Services in New York; Judge Lippman presided over the hearings held throughout the state.   A New York Times Editorial essentially endorsed the Task Force's recommendation.

Lippman will be speaking at City University of New York School of Law on Thursday, February 3, about the right to an attorney in civil cases. 



Admission is free

RSVP required:


UPDATE: Discussion of event in New York Law Journal, February 7, 2011.


January 31, 2011 in Conferences, Courts and Judging, Due Process (Substantive), Scholarship, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sunday, January 30, 2011

Mountaintop Removal and the Fifth Amendment: West Virginia Weekend

WV Weekend Logo Earlier this month, the Environmental Protection Agency (EPA) issued its 99 page final determination regarding the mining permit for Arch Coal, Inc.’s Spruce No. 1 mine, located in southern West Virginia (pictured below).  The EPA rescinded the Clean Water Act approval for what would have been one of the largest surface mining sites in Appalachia.  The EPA's action is controversial.  There are sure to be challenges, just as there are challenges to the recently issued guidance protocols that increase scrutiny on mountaintop coal operations. Indeed, there is a lawsuit filed on behalf of the State of West Virginia filed by the then-Governor of West Virginia, the recently elected United States Senator Manchin.  While such litigation typically raises administrative law claims, the denial of a mining permit may also raise the specter of possible constitutional challenges. 

The Fifth Amendment's takings clause may provide the constitutional grounding for asserting claims of regulatory takings, especially for those coal and mineral interest owners whose coal cannot be economically mined by more traditional below ground methods.

Screen shot 2011-01-30 at 8.16.45 PM

Professor Patrick McGinley at the West Virginia College of Law analyzes such challenges in his recent work  Bundled Rights and Reasonable Expectations: Applying the Lucas Categorical Taking Rule to Severed Mineral Property Interests, 11 Vermont Journal of Environmental Law 525 (2010), available on the journal website. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Supreme Court held that the government must pay just compensation for takings that deprive an owner of “all economically beneficial use” of the owner’s property.  The rule is often referred to as the “categorical” or “total takings” rule because the reviewing court need not examine  the owner’s  expectations in the property.

McGinley argues that “the expectations of owners of less-than-fee interests in one mineral–coal–do not deserve the additional protection of Lucas’s categorical rule.” Id. at 529.  He arrives at this conclusion “based upon the consideration of the historic limited expectations of severed coal interest ownership.” Id.  Professor McGinley explains:

[W]hen the property owned is a severed coal interest or a more ephemeral interest such as [a] fractional royalty interest . . . , the bundle of rights metaphor seems an inappropriate way to describe the owner’s rights.  While there are exceptions, as a general rule, one who owns a possessory interest in coal has, at most, the “right” to sell the coal in place if she can find a buyer; to use the surface to access the reserve; to extract the fuel from the land; and to transport it to market for sale. . . . For owners of non-possessory or non-executory interests in minerals . . . , their “bundle of rights” is sparse indeed.  Their rights are narrowly limited to entitlement to a small percentage of the sale price of a mineral extracted from the land and carried to market–such owners do not even possess the right to walk freely upon the land from whence the mineral may be mined.  Such ownership “right” is illusory unless and until the mineral is actually mined.

Id. at 571 (citations omitted).

While he disclaims the application of the Lucas categorical rule,  McGinley concludes that “Penn Central’s examination of takings claimant’s distinct investment-backed expectations should continue to be applied to claims of regulatory takings of coal property interests severed from fee simple estates in land.” Id. at 529.

Thus, McGinley argues that coal operators and mineral rights owners will find no satisfaction in regulatory takings under the Lucas categorical rule.  Nevertheless, the recent EPA action regarding the Spruce No. 1 mine and the 2009 announcement by the EPA that the Obama Administration is taking "unprecedented steps to reduce environmental impacts of mountaintop coal mining" will most likely raise regulatory taking issues under the Fifth Amendment.


(with J. Zak Ritchie)

[image: from cover of EPA final determination on mining permit for Arch Coal, Inc.’s Spruce No. 1 mine]

January 30, 2011 in Current Affairs, Fifth Amendment, Scholarship, Takings Clause | Permalink | Comments (1) | TrackBack (0)