December 17, 2011
Seventh Circuit: Contribution Cap to Independent Group Violates First Amendment
A unanimous three-judge panel of the Seventh Circuit ruled this week in Wisconsin Right to Life v. Barland that Wisconsin's cap on contributions to independent political action committees violates the First Amendment.
Here's Wisconsin's law:
No individual may make any contribution or contributions to all candidates for state and local offices and to any individuals who or committees which are subject to a registration requirement under s. 1105, including legislative campaign committees of a political party, to the extent of more than a total of $10,000 in any calendar year.
Wisconsin Right to Life, an independent organization according to the court, sought preenforcement review after two individuals were foreclosed from contributing to it because they exceeded the $10,000 contribution cap.
The court ruled that the cap violated free speech, insofar as it restricted contributions to independent organizations. The court explained:
Importantly for our purposes here, Citizens United made it clear that the government's interest in preventing actual or apparent corruption--an interest generally strong enough to justify some limits on contributions to candidates--cannot be used to justify restrictions on independent expenditures. . . .
"The separation between candidates and independent expenditure groups negates the possibility that independent expenditures will result in the sort of quid pro quo corruption with which [the Court's] case law is concerned." In short, "[t]he candidate-funding circuit is broken." Citizens United thus held as a categorical matter that "independent expenditures do not lead to, or create the appearance of, quid pro quo corruption." [Quoting Arizona Free Enterprise Club.]
Op. at 25-26.
The court rejected the state's argument that the cap addressed indirect quid pro quo corruption and the appearance of corruption, saying that Citizens United set a categorical rule: Independent expenditures do not lead to these problems.
The court's ruling is hardly a surprise in the wake of Citizens United and the D.C. Circuit's 2010 ruling in FreeSpeechNow.org v. FEC and the Ninth Circuit's 2010 ruling in Long Beach Area Chamber of Commerce v. Long Beach, among others.
December 15, 2011
Con Law Final: A Student View
"And what would the founding father’s [sic] have done, huh? What would James Madison do if he was staring down a four-hour, closed book Constitutional Law final? I mean besides, you know, not writing the Constitution. I like to think he would have just broken down and started destroying stuff rather than confront the reality of his own intellectual inadequacy and poor post-graduate educational decisions.
So who’s with me? Who among you will tear off the manacles of history and cloak yourself in the mantle of noble insurrection against the tyranny of law and the final examination thereof?"
[image: James Madison via]
White House Proposes Rules on Domestic Workers to "Overrule" Long Island Health Care at Home v. Coke
Today, President Obama announced proposed rulemaking to revise the companionship and live-in worker regulations under the Fair Labor Standards Act "to more clearly define the tasks that may be performed by an exempt companion" and " to limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household."
This latter provision regarding home health care workers employed by contractors would change the result of Long Island Care at Home v. Coke, decided by the Court in 2007. As the President's announcement notes, the issue of FLSA coverage
gained national attention when, in 2007, the Supreme Court ruled that Evelyn Coke, a home care worker who worked as much as 70 hours a week, was not entitled to overtime pay under existing regulations. Thus, any change to these rules requires action by Congress or the Department of Labor. There have been bills introduced in numerous Congresses to address this issue (including legislation that then-Senator Obama co-sponsored in the 110th Congress) but these bills have not moved forward. The Department of Labor is therefore now proposing regulations to change these rules and ensure that home care workers like Evelyn Coke will have basic wage protections.
Interestingly, Coke was a unanimous opinion that provoked little controversy when it was rendered.
I've elsewhere discussed Evelyn Coke in the context of legal theory regarding "servants." At the oral argument in Coke, which Evelyn Coke attended in a wheelchair, Justice Scalia joked regarding the meaning of "footmen" and Justice Brennan expressed concern for the families who needed home health care workers, but not for the workers themselves. Evelyn Coke died in 2009.
If the regulations are adopted, they would essentially "overrule" the Court's opinion, based as it was on regulatory and statutory construction. Thus, the issue is of general interest regarding separation of powers. The development is also of interest to ConLawProfs working on social change and poverty issues.
[image Library of Congress via]
Bill of Rights Day 2011
Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.
In his Presidential Proclamation last week, Obama stated:
On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.
Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.
Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.
Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."
The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights. Instead, they concerned Congress itself:
Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The latter became the 27th Amendment, ratified more than two centuries later in 1992.
- Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
- Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
- Amendment 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Amendment 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
- Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
- Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
[image from National Archives via]
December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | TrackBack
December 14, 2011
Sexual Violence in the Military: Not a Judicial Matter
The UK's Guardian has a lengthy and worth reading report entitled " Rape in the US military: America's dirty little secret" with the subtitle, "A female soldier in Iraq is more likely to be attacked by a fellow soldier than killed by enemy fire." The Guardian's article mentions a lawsuit of 28 plaintiffs "who claim to have been subjected to sexual assaults while serving in the armed force" against Donald Rumsfeld and Robert Gates "for a culture of punishment against the women and men who report sex crimes and a failure to prosecute the offenders."
In a 2 page opinion, Judge Liam O'Grady dismissed that lawsuit the same day as the Guardian article. Cioca v. Rumsfeld garnered much attention when it was filed in February, including a NYT article and a widely distributed video of Kori Cioca:
The judge's order concluded that Cioca and the other plaintiffs do not have a Bivens action (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)), because such a remedy is not available when '"special factors counseling hesitation'" are present, and the "unique disciplinary structure of the military establishment" is a "special factor" that "counsels against judicial intrusion." In short "congressionally uninvited intrusion into military affairs by the judiciary is inappropriate."
This same reasoning of military deference was once prominent in challenges to the military's sexual orientation policy of "don't ask, don't tell" (DADT). More recently, of course, the courts were much less deferential, including the Ninth Circuit's injunction against the policy earlier this year, before the policy was repealed, and the Ninth Circuit's dismissal of the case as moot. Yet as we noted, the Ninth Circuit did more than dismiss the case as moot, it specifically stated that it
"vacate[d] the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect."
Thus, those DADT findings overcoming judicial deference to the military are declared to be void, although it does seem that they might not be entirely irrelevant.
December 12, 2011
Supreme Court to Hear Arizona SB1070 on Preemption Issue
UPDATE: COURT'S OPINION JUNE 25, 2012 here]
The United States Supreme Court has just granted Arizona's petition for writ of certiorari in Arizona v. United States involving Arizona's controversial immigration statute SB 1070. Justice Elana Kagan did not participate in the grant, and will presumably not participate in the decision on the merits.
The petition for writ of certiorari filed by Arizona seeks review of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070. Arizona, represented by Paul Clement, contends it bears the brunt of illegal immigration and that the federal government is not sufficiently addressing the problem, setting the factual and political context for its claim that its statute is not preempted under the Supremacy Clause. The petition argues that "The Ninth Circuit’s rule—that States may not take any investigative or enforcement action against aliens based on their civil violations of the immigration laws without an express permission slip from Congress—directly conflicts with the approach" taken in other circuits. The petition also argues that the Ninth Circuit opinions contradicts "Our Federalism" by failing to recognize co-operative enforcement and implicitly assuming that immigration is a matter of nearly exclusive federal concern. The Ninth Circuit completely misconstrued preemption doctrine according to the petition, perhaps most egregiously when it allowed "complaints by foreign government officials and the disagreement of the Executive Branch to trump congressional intent."
Arizona's SB1070 has spawned other state laws and other litigation: 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 are also 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), and South Carolina is a recent and important addition.
The Court most recently considered preemption in the context of immigration in another case from Arizona, Chamber of Commerce v. Whiting, affirming the Ninth Circuit but in a fractured opinion involving express preemption.