Friday, January 6, 2012

Opening Briefs Filed in Health Reform Challenge

Parties today filed opening briefs in the cases challenging the federal Affordable Care Act, now before the Court.  We covered the Court's grant and argument schedule here.

The government filed its opening brief defending the minimum coverage provision, also called the individual mandate, under the Commerce Clause, the Necessary and Proper Clause, and Congress's taxing power.  As we might expect, the government emphasizes the congressional findings in the act and the data supporting its argument that everyone is in the relevant market.  It defends Congress's power to enact the provision principally as an essential part of a larger regulatory scheme:

The minimum coverage provision plays a critical role in that comprehensive regulatory scheme by regulating how health care consumption is financed.  It creates an incentive for individuals to finance their participation in the health care market by means of insurance, the customary way of paying for health care in this country, and it works in tandem with the Act's other provisions to expand the availability and affordability of health insurance coverage.  In particular, the minimum coverage provision is key to the viability of the Act's guaranteed-issue and community-rating provision.

Brief, at 17-18.

The government also defends the provision as a stand-alone regulation of commerce.  In particular, it argues that the election to self-insure is an economic act that Congress can regulate and hotly disputes the opponents' claim that some self-insured are non-cost-shifters, thus not subject to regulation:

The circumstances of this case well illustrate the flaws in respondents' premises.  At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance . . . .  That belief proved incorrect.  Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers.

Brief, at 44.  The government forcefully challenges the claimed distinction between "activity" and "inactivity," and argues that the self-insured aren't "inactive" in this market, anyway.  Brief, at 47-52.

Also today the state petitioners and private petitioners filed their briefs on severability.  The arguments are very similar and familiar.  The states summarize:

Severability is a remedial inquiry that turns on legislative intent.  The ultimate question is not whether the balance of an act can function independently without an invalidated provision.  That is a necessary, but not sufficient, condition for preserving the balance of the statute.  The ultimate question is whether Congress would have enacted the statute without the invalidated provision.  Here, the answer is clear[: No.]

Brief, at 24.

Recall that the connection between the government's principal argument--that the minimum coverage provision is an essential part of the larger ACA--and the state and private petitioners' argument--that the minimum coverage provision is not severable--was a focus of Judge Vinson's ruling (holding that the minimum coverage provision exceeded Congress's authority, and that it was not severable, because the government said that it formed an essential part of the ACA) earlier in this litigation.

The briefs today break little new ground.  The fundamental arguments are familiar, even if they're sharpened, considerably.


January 6, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 4, 2012

AALS Conference: Sessions of Special Interest

Top_logoThe annual meeting of the Association of American Law Schools has started in D.C. and there are a number of sessions that should be of special interest to ConLawProfs.


Five of the hot topics sessions involve constitutional law issues:

Occupy Wall Street as a Transformative Social Movement: Its Meaning and Prospects for the Future,
(Thursday, 10:30 am - 12:15 pm)
Our Intensifying National Debate: Is Health Care Reform Constitutional?

(Friday, 10:30 am - 12:15 pm)
The Singular Legacy of Professor Derrick Bell,

(Friday, 4:00 pm - 5:45 pm)
Politics, Ethics, and the Supreme Court: The Present and Future of Supreme Court Recusal
(Friday, 4:00 pm - 5:45 pm)
Church Autonomy, the Ministerial Exception, and Hosanna-Tabor v. EEOC

(Saturday, 10:30 am - 12:15 pm)

 The Section on Constitutional Law is sponsoring two panels, from 2:00-5:00 pm on Thursday, American Citizenship in the 21st Century and  Article V: To All Intents and Purposes, with the business meeting after the program.

The Section of Law and Religion is sponsoring Blasphemy, Religious Defamation, and Religious Nationalism: Threats to Civil Society from Religious Speech and Its Suppression.

The Section on Minority Groups is sponsoring Minority Conservatives and Their Impact on Constitutional Theory.

The Section on Professional Responsibility is sponsoring Does the First Amendment Protect Attorney Advice, Assistance, and Representation?

The Section on Legal History is sponsoring Was Emancipation Legal: Reflections on the Sesquicentennial of the Emancipation Proclamation.


January 4, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Montana Supreme Court Upholds Campaign Spending Limits for Corporations

The Montana Supreme Court last week upheld state campaign spending limitations on corporations against a free speech challenge under Citizens United v. FEC.  The court ruled that special circumstances distinguish the case from Citizens United, and that unique features of Montana politics justify the restrictions, even under strict scrutiny.

The statute under attack in Western Tradition Partnership v. Attorney General prohibits corporations from spending "in connection with" a candidate or a political committee, but it allows corporations to establish an independent political action committee for that purpose.  It says:

(1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.

(2) A person, candidate or political committee may not accept or receive a corporate contribution described in subsection (1).

(3) This section does not prohibit the establishment or administration of a separate segregated fund to be used for making political contributions or expenditures if the fund consists only of voluntary contributions solicited from an individual who is a shareholder, employee or member of the corporation.

Montana Code, Sec. 13-35-227.

Three corporations challenged the law: a sole proprietor; a firearm safety and gun-rights group; and a shell corporation designed to influence Montana politics while concealing the identity of contributors.

The court ruled that three things distinguished this challenge from Citizens United.  First, the court ruled that the PAC requirement was not onerous, especially for these three plaintiffs, who failed to show that their political spending was at all impacted by it.  Next, the court said that Montana campaign spending regulations are far less onerous than federal regs and, again, did not deter or impact these plaintiffs' spending.  And finally, the court wrote at length than Montana has a unique history of powerful corporations, controlled by outsiders, directing and corrupting the politics of the State. 

The court said that the spending restriction was narrowly tailored to meet the compelling interest of reducing corruption by corporations in the State, given the unusual features of Montana politics and its economy, thus satisfying strict scrutiny:

Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transporation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government.

Op. at 22.

The court said the state also had an interest in the full political participation of its electorate:

With the infusion of unlimited corporate money in support of or opposition to a targeted candidate, the average citizen candidate would be unable to compete against the corporate-sponsored candidate, and Montana citizens, who for over 100 years have made their modest election contributions meaningfully count would be effectively shut out of the process.

Op. at 23-24.

Finally, the court said that the State had compelling interests in preserving its system of elected judges, and in an independent, fair, and impartial judiciary that are served by the statute.

Because the law satisfied strict scrutiny, the court held, it also satisfied lesser scrutiny applicable to the sole proprietor and to the firearms group, whose speech was not sufficiently burdened by the law to justify strict scrutiny review.

Justices Baker and Nelson dissented, arguing that Citizens United prohibits all bans on corporate campaign spending.  Justice Baker argued further that State election authorities could constitutionally extend disclosure requirements to corporations; that, at least, would give Montana voters some protection against corruption (through disclosure), if the Supreme Court were ultimately to overturn Montana's spending restriction.


January 4, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 3, 2012

Religious Groups Lack Standing/Ripe Claims to Challenge Hawai'i Civil Unions Law

The Civil Unions Law, Act 1, of Hawai'i became effective January 1, 2012.  



In the last days of 2011, several religious groups sued for a Temporary Restraining Order (TRO) to stop the Act's implementation and prevent any enforcement against them.  In a relatively brief opinion, federal district judge J. Michael Seabright denied the TRO in Emmanuel Temple v. Abercrombie

The complaint seeking the TRO alleged that because Act 1 does not have a "religious exemption," the plaintiffs could suffer a First Amendment injury.  However, the judge found that the claim was not justiciable because the plaintiffs lacked standing and their challenge was not ripe, noting that in many cases the "injury in fact" prong of the standing analysis coincides with an inquiry regarding ripeness.

The judge found that any threat of enforcement of Act 1 against the plaintiffs was "highly speculative."   A number of unforseeable events would have to occur:

  • A couple would have to ask plaintiffs to use a particular facility of theirs - - - which presumably would have to be a "public accomodation" - - - for a civil union made possible by Act 1;
  • Plaintiffs would have to wrongly refuse based upon a protected ground;
  • The couple, having been denied, would have to file a complaint with the Hawaii Civil Rights Commission;
  • The state authorities would have to decide to proceed against plaintiffs.

The judge found it was equally speculative that a couple, having been denied, would chose to file a judicial action rather than an action with the Commission.

For ConLawProfs starting the semester with Article III justiciability, this could be the basis of a great class problem. 

Situating the case outside that doctrinal framework, it is an example of religious groups filing federal actions against same-sex relationship recognition, as in New York, despite that state's religious exemption in the statute.

Further, it is yet another incident in the saga of same-sex marriage in Hawai'i; a good review and the latest litigation by same-sex couples challenging the civil union law for not providing marriage is here.

[image: Kahaluʻu Fishpond seawall and wedding chapel, Oahu, Hawaii, on National Register of Historic Places, via]

January 3, 2012 in Cases and Case Materials, Equal Protection, First Amendment, Fourteenth Amendment, Gender, Religion, Ripeness, Sexual Orientation, Standing, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Signing Statement on NDAA

The White House on Saturday issued a signing statement on the National Defense Authorization Act, which we covered most recently here.  There are two principal issues here.  The first relates to authorities that Congress seeks to grant to the President, including, apparently, the authority to detain U.S. citizens in military custody.  The second relates to restrictions on authorities.  The signing statement deals with both.

As to authorities, the President clarified that the Administration will not use authority in the NDAA to detain U.S. citizens in military custody "without trial."  We wrote earlier that the NDAA itself probably doesn't change the government's detention authority under existing law and court decisions (whatever one thinks about that law and those court decisions).  The signing statement, too, doesn't fundamentally change that picture.  In short, the Administrations statement that it won't detain U.S. citizens in military custody "without trial" probably only comports with the requirements in Hamdi v. Rumsfeld, and probably doesn't offer any extra or special protection beyond Hamdi.

As to restrictions, the Administration's signing statement flatly refuses to comply with the requirement for military custody for foreign detainees and the restrictions on transfer of Guantanamo detainees to the U.S. or to other countries.  These restrictions undoubtedly raise separation-of-powers problems, but the signing statement means that the President will ignore the NDAA--the law--in favor of his Administration's own (even if correct) interpretation of the Constitution.  (An alternative would have been the veto.)  This is a practice that this President once disavowed, or at least qualified.  The Administration's signing statement on the NDAA is one of its more aggressive uses of a constitutional signing statement, signalling the Administration's willingness to ignore the law it just signed because it is unconstitutional in some applications.  The Administration is correct that these limitations raise grave separation-of-powers problems, but it's less clear that a signing statement is the best way to deal with them.

Here are some particulars:

  • Section 1021.  This section defines a detainable person and apparently authorizes indefinite military detention.  The White House says that this "breaks no new ground," because it simply confirms authorities already recognized by the law and the courts; it also says that it requested "critical limitations" in the bill that say that the authority here doesn't expand or limit existing legal authority.  The signing statement addresses the principal criticism of this section, the potential indefinite detention of American citizens: "Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."  This statement doesn't change anything.  In particular, the "without trial" is a reference to Hamdi v. Rumsfeld, which held that the government can't hold U.S. citizens indefinitely without due process.  The key is understanding what the administration means by "without trial."  Whatever it means, it still has to satisfy due process under Hamdi.  In short, the section and the signing statement together don't seem to change existing law.
  • Section 1022.  This section mandates military custody for a category of non-citizen detainees and was controversial because it would tie the Commander-in-Chief's hands in choosing how to deal with alleged terrorists--a restriction that the Administration earlier objected to on separation of powers grounds.  The signing statement reiterates the Administration's earlier objections and flatly rejects its limitations.  Here's what the statement says: "I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.  While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.  I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security.  Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirements,including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.  . . . [U]nder no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention."  The Administration's objections here are practical and operational, and their separation-of-powers roots are clear: it's the Commander-in-Chief's job, not Congress's, to determine how to detain foreign alleged terrorists.  Whether the President can lodge this kind of objection in a signing statement (as opposed to a veto), and whether the President can therefore disregard the plain law (that he just signed), are different questions.
  • Sections 1027 and 1028.  These are restrictions on the use of funds to transfer Guantanamo detainees to the U.S. or to foreign countries.  The statement reiterates the Administration's earlier separation-of-powers objections and says that "[i]n the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict."


January 3, 2012 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (3) | TrackBack (0)

Monday, January 2, 2012

Eighth Circuit on Law School Hiring: The First Amendment and Political Views

As most law professors and hiring committees know, hiring law faculty is a highly subjective endeavor. Many candidates are unsuccessful.  For example, Teresa Wagner was not hired to be a full-time Legal Analysis, Writing, and Research instructor at the University of Iowa's College of Law.  However, Wagner alleged that she was not hired because of her political beliefs. The Eighth Circuit's opinion in Wagner v. Jones rules that her claim will go forward.

Square07Reversing a district court opinion granting summary judgment to the then-dean, Carolyn Jones, the Eighth Circuit has ruled that there are issues of material fact on the motivation for the failure to hire as well as the personal liability of the dean.Wagner alleges that the failure to hire her violated her First Amendment rights and that she was not hired because she is a Republican who has "worked with the National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, which advocates for conservative social views."   The panel opinion contains much discussion of Wagner's interview process, with relatively innocuous comments about her job talk and qualifications.  However, there seem to be a few "smoking guns."

First, the associate dean advised her to conceal the fact that she had interviewed and received an offer from Ave Maria law school because it is "viewed as a conservative school."

Second, there is an email from the same associate dean to the dean which included this passage:

Frankly, one thing that worries me is that some people may be opposed to Teresa [Wagner] serving in any role in part at least because they so despise her politics (and especially her activism about it). I hate to think that is the case, and I don’t actually think that, but I’m worried that I may be missing something.

Third, a faculty member who opposed hiring her - - - characterized as "the primary, vocal opponent" - - - "had clerked for Justice Blackmun during the time Roe v. Wade was written, has written tributes to Justice Blackmun and his abortion jurisprudence, and has published legal articles advocating a pro-choice viewpoint on abortion." 

And fourth, as the panel opinion states:

The law school faculty at the University is viewed as being liberal. Only one out of 50 professors is a registered Republican.

Indeed, the panel opinion finds that the dean is not protected by qualified immunity because

Dean Jones had several indications that Wagner’s political beliefs and associations may have played a role in the faculty’s hiring decisions. Only one law school faculty member out of 50 is a registered Republican. As dean, Dean Jones generally should have been aware of her faculty’s point of view and its political tendencies.

While the associate dean's statement and email might be probative, the Eighth Circuit's opinion seems to make much out of the professional and political affiliations of the faculty members, essentially assuming they would be biased.

If the case goes to trial, it is certainly one to be watched.  As it stands, the Eighth Circuit opinion is worth a read by deans and members of faculty search committees.

[image: Rodin's Jean de Fiennes, Clothed (from The Burghers of Calais), 1889, cast 1987, in front of the Boyd Law Building on The University of Iowa campus, via]

January 2, 2012 in First Amendment, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, January 1, 2012

CJ Roberts' Year End Report on the Federal Judiciary

File-Official_roberts_CJ_croppedChief Justice Roberts, who during his confirmation hearings notoriously likened the role of judges to that of umpires in sporting contests, has returned to a discussion of sports to open his annual year end report on the federal judiciary for 2011.   The report begins with a reference to the events of 1920, when "American baseball fans were jolted by allegations that Chicago White Sox players had participated in a scheme to fix the outcome of the 1919 World Series."

Thankfully, Roberts soon makes this almost century old baseball scandal relevant to his topic: the ethics and integrity of judges, or more specifically, of the Justices of the United States Supreme Court. 

The team owners responded to the infamous “Black Sox Scandal” by selecting a federal district judge, Kenesaw Mountain Landis, to serve as Commissioner of Baseball and restore confidence in the sport. The public welcomed the selection of a prominent federal judge to purge corruption from baseball. But Judge Landis’s appointment led to another controversy: Could a federal judge remain on the bench while serving as Baseball Commissioner? That controversy brought to the fore a still broader question: Where do federal judges look for guidance in resolving ethics issues?

In discussing the ethical concerns that vigorously swirled around Justice Thomas and other Justices regarding their attendance at events, including political fundraisers, it has oft been noted that the Justices of the Supreme Court, unlike other federal judges, are not covered by the Code of Conduct.   And as Roberts states, "some observers"  have "recently questioned whether the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court."  For example, there has been a specific suggestion by at least one member of Congress that it should amend the Code to include Justices.

In his report, Roberts, again referring to "some observers," rejects the suggestion that "because the Judicial Conference’s Code of Conduct applies only to the lower federal courts, the Supreme Court is exempt from the ethical principles that lower courts observe."  For Roberts, such observations rest on "misconceptions about both the Supreme Court and the Code," and he avers that Justices do consult the Code.

Roberts then specifically addresses two areas. 

First, Roberts considers financial and gift regulations, noting that the Justices are covered by Congressional acts in that regard and more interestingly stating that the Justices comply although the "Court has never addressed whether Congress may impose those requirements on the Supreme Court."  Roberts discussion is a little more than a page and provides little insight into the controversy swirling around the nonreporting of 1.6 million dollars of spousal income or financial interests in a museum. 

Second, Roberts tackles the question of recusal.  Again, he does not mention specific Justices, but one assumes it is again Justice Thomas, as well as Justice Kagan who was Solicitor General.  Kagan has not recused herself with regard to the constitutionality of the Affordable Care Act, although she has regarding many other matters including the controversial Arizona immigration statute, SB1070.  Roberts writes:

Although a Justice’s process for considering recusal is similar to that of the lower court judges, the Justice must consider an important factor that is not present in the lower courts. Lower court judges can freely substitute for one another. If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case. 

As with other ethical questions, Justices and lower federal court judges contemplating recusal can take good counsel from the principles set forth in Canon 14 of the original 1924 Canons of Judicial Ethics. That Canon addresses judicial independence. It provides that a judge “should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.” Such concerns have no role to play in deciding a question of recusal.

I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties. We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.

Roberts closes with a return to baseball, followed by a quotation from Alexander Hamilton in The Federalist No. 78, and then best wishes for the new year.

But best wishes, sports, and even The Federalist aside, it is unlikely that Roberts' year end message has convinced anyone that the ethical controversies will not continue in 2012.


January 1, 2012 in Congressional Authority, Courts and Judging, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)