June 1, 2012
County Pulls Rug Out From Under Second Amendment Claim
In the latest installment in the long-running saga Nordyke v. King, the en banc Ninth Circuit ruled today that Alameda County's ban on gun shows at the county fairgrounds didn't violate the Second Amendment, because, well, Alameda County changed its policy to allow gun shows.
The county's late-in-the-day move pulled the rug out from under the plaintiffs' original Second Amendment claim and gave the court an out (which it took) in articulating a Second Amendment standard. The move also allowed the court to preempt any repleading by the plaintiffs. Between the county's move and the court's ruling, the case now has virtually no chance of going to the Supreme Court.
Recall that the case involved Alameda County's ban on gun shows at the county fairgrounds. The county ordinance banned firearms on the fairgrounds, but provided exceptions for, among other things, a "dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event." The county originally interpreted the ordinance to ban gun shows, and the plaintiffs sued.
That was a long time ago, and the case has been up and down several times since. But most recently, the county re-interpreted its ordinance to allow gun shows (as an "event"), provided that the weapons are secured or tethered (like cell phones are in a cell phone store).
The en banc Ninth Circuit ruled that the county's change in interpretation meant that the plaintiffs no longer had a Second Amendment claim against a ban on gun shows. The court said nothing about the Second Amendment itself.
As to the requirement that the guns remain secured or tethered, the court said that that "[n]o matter how broad the scope of the Second Amendment . . . it is clear that . . . this regulation is permissible."
Judge O'Scannlain, joined by Judges Tallman, Callahan, and Ikuta, concurred, arguing that the court should have adopted a standard of scrutiny for the Second Amendment--the "measured, calibrated approach developed in the original three-judge panel majority opinion, which considers carefully the extent of the regulation's burden on Second Amendment rights." But even applying this standard, Judge O'Scannlain argued that the county's new interpretation of the ordinance would survive.
Judge Ikuta, joined by Judge Callahan, also wrote a concurrence, arguing that the court should adopt a standard and determine whether the plaintiffs could re-plead their case.
While we still don't have guidance from the Supreme Court as to the standard for Second Amendment claims, this case now makes a poor candidate for the Court to determine that standard. Look for this case to (finally) end.
May 31, 2012
Court Dismisses Challenge to Amtrak's Authority to Develop Standards
Judge James E. Boasberg (D.D.C.) rejected the plaintiff's claims that Congress improperly delegated authority to Amtrak to develop and enforce passanger railway standards in violation of due process and nondelegation principles and granted summary judgment to the government in Association of American Railroad v. Department of Transportation. The ruling affirms Amtrak's role in standard-making under the Passenger Railroad Investment and Improvement Act of 2008 and upholds Section 207 of that Act.
Section 207 requires the Federal Railroad Administration and Amtrak to jointly develop standards to evaluate the performance of Amtrak's intercity passenger trains. It says:
[T]he Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including . . . on-time performance and minutes of delay . . . .
Under the Act, if the STB determines that Amtrak's failure to meet the standards is attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation--that is, if a freight train makes an Amtrak train late--the STB may award damages against the host rail carrier. (Amtrak leases the rail lines that it uses from freight rail carriers.)
The AAR, representing its member freight rail carriers, sued the DOT, arguing that Section 207 violated due process, because it allowed a private, interested party, Amtrak, to regulate other industry participants. The AAR also argued that Section 207 effected an unconstitutional delegation of regulatory authority to a private entity.
The claims assumed that Amtrak was a private corporation--and the case thus turned on that assumption in the first instance. But Judge Boasberg, drawing on Lebron v. National Railroad Passenger Corporation (1995), concluded that Amtrak was a governmental entity, at least as to the due process claim. Here's what he wrote:
The two hallmarks of government control that the Lebron Court found decisive--namely, that Amtrak was created by special law for the furtherance of governmental objectives and that the government retained the authority to appoint a majority of directors--moreover, has not changed. Indeed, when Lebron was decided, the President appointed only six of Amtrak's nine directors; he now appoints eight of the nine. The government, moreover, retains more than 90% of Amtrak's stock, appropriates for Amtrak more than a billion dollars annually, and sets salary limits for Amtrak's employees. In addition, Amtrak is required to submit annual reports to Congress and the President.
Op. at 11-12. Because Amtrak is a government entity, Judge Boasberg concluded, Congress did not delegate rulemaking authority to a private entity in violation of due process.
As to the delegation claim, Judge Boasberg concluded that Amtrak's status as a private corporation or government entity didn't matter, because the government retained ultimate control over the standards (even if Amtrak was involved in the process).
While the AAR is correct that [Section 207] in a sense makes Amtrak the FRA's equal--as opposed to its subordinate--Amtrak cannot promulgate the Metrics and Standards without the agency's approval. . . .
Conditioning regulation on a private party's assent . . . is not constitutionally problematic. Indeed, the Supreme Court has reasoned that through such schemes the government "merely place[s] a restriction upon its own" ability to regulate.
Op. at 18-19.
Florida Federal Judge Grants Preliminary Injunction Against Law Regulating Voter Registration
In his opinion today in League of Women Voters of Florida v. Browning, Northern District of Florida Judge Robert Hinkle held that the plaintiffs had a likelihood of prevailing on the merits of their claim that Florida Statutes § 97.0575, as amended in 2011, and its implementing rule, Florida Administrative Code Rule 1S-2.042, violate the First Amendment.
Judge Hinkle found that the "statute and rule impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter- registration office and effectively prohibit an organization from mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional."
The judge applied a relatively low standard, finding that "an election-code provision of this kind must serve a legitimate purpose that is sufficient to warrant the burden it imposes on the right to vote." And perhaps a well-crafted law could survive such judicial review. But Judge Hinkle stated:
This statute and this rule are not well crafted. To the contrary, they are virtually unintelligible, close to the point, if not past the point, at which a statute—especially one that regulates First Amendment rights and is accompanied by substantial penalties— becomes void for vagueness.
Rejecting Florida's argument that certain issues in the statute's application "will need to be worked out," Judge Hinkle was dismissive. Not only would a voter-registration organization be "ill advised to risk significant fines—and the attendant damage to the organization’s reputation—that would result from failing to comply with provisions this difficult to parse," but it is also " not too much to ask the state to work out the issues in advance," when "rights of this magnitude are at stake."
Judge Hinkle's opinion provided several different practical scenarios. For example,
Another substantial flaw in the statute and rule—and a clearer violation of controlling law—is their disregard of a voter-registration organization’s interest in mailing in completed voter-registration applications rather than hand delivering them. The statute makes no provision for mailing at all. If the statute means what it says—that an application must be received in the voter-registration office within 48 hours after the applicant signs it—a prudent voter-registration organization can never mail in an application. This is so because even if the organization delivers the application to the Postal Service immediately after the applicant signs it—and this in itself would be virtually impossible—the organization cannot be assured that the Postal Service will deliver it within 48 hours.
Judge Hinkle found the constitutional arguments more pertinent that those under the National Voting Rights Act, and did sustain a few of the Florida provisions. But this is certainly a substantial set back for the controversial Florida statute and administrative rule that severely curtailed voter registration activities.
PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .
As the Washington Post reports, members of the House of Representatives "voted 246 to 168" on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions. While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."
PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race." The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.
As I've written elsewhere:
The specter of sex-selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.” Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-‐selective prohibitions are not cast as being beneficial to women or assisting decision-‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.
Indeed, PRENDA's findings on sex include:
(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.
PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy. For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy." For others, PRENDA may be part of an election year strategy.
For those teaching a summer course in ConLaw, this could be the basis of an excellent problem. ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.
First Circuit: DOMA Section 3 Unconstitutional
In today's unanimous panel opinion in Massachusetts v. HHS, consolidated with Gill v. Office of Personnel Management, the First Circuit upheld federal District Judge Tauro's companion opinions that section 3 of DOMA is unconstitutional. (April's oral argument can be heard here).
The First Circuit opined that the issue is difficult not only because of what it called the Justice Department's "about face" but because it
couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
The panel relied upon Moreno, Cleburne, and Romer v. Evans, each of which "rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered," to ultimately employ a heightened rational basis of equal protection review.
As to federalism, the panel noted that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture." Although certainly the federal government does have an interest in marriage (given how many federal laws rely on the definition), nevertheless "Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed."
The First Circuit thus stops short of finding that DOMA is inconsistent with the Tenth Amendment, but deploys federalism to evaluate the government interests under equal protection.
The four interests expressed in the House Committee Report were
- (1) defending and nurturing the institution of traditional, heterosexual marriage;
- (2) defending traditional notions of morality;
- (3) protecting state sovereignty and democratic self-governance; and
- (4) preserving scarce government resources.
The First Circuit rejected all these interests as inadequate, including the preservation of government resources that it found to be factually dubious, and also rejected the "child rearing" and "temporary measure" rationales advanced in litigation, as not supported by the legislation.
Thus, the panel concluded:
the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.
Surely BLAG - - - the Bipartisan Legal Advisory Group of the United States House of Representatives, an organization defending DOMA funded by taxpayers - - - will petition for certiorari to the United States Supreme Court, although perhaps first for en banc review.
May 30, 2012
ACLU Sues to Stop Minnesota Voter ID Ballot Proposal
The Minnesota ACLU, along with the League of Women Voters Minnesota, Common Cause, Jewish Community Action, and five Minnesota voters, filed a petition with the Minnesota Supreme Court seeking to strike a ballot question that, if passed, would amend the Minnesota Constitution to require voter ID.
The petitioners claim in their Brief and Addendum that the ballot question is false, misleading, and an incomplete description of what the amendment would actually do--in violation of Article IX, Section 1, of the Minnesota Constitution. That Section provides that proposed amendments shall be "submitted to the people for their approval or rejection." The Minnesota Supreme Court interprets it considering whether the language of the ballot question would mislead a voter of common intelligence to the proposed amendment's actual meaning and effect.
Here's what the legislature required the ballot to say:
Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?
And here's what the amendment to the Constitution would say:
(b) All voters voting in person must present valid government-issued photographic identification before receiving a ballot. The state must issue photographic identification at no charge to an eligible voter who does not have a form of identification meeting the requirements of this section. A voter unable to present government-issued photographic identification must be permitted to submit a provisional ballot. A provisional ballot must only be counted if the voter certifies the provisional ballot in the manner provided by law.
(c) All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted.
The petitioners argue that the ballot question misleads in five ways:
1. It says that the amendment would require photo ID from "all voters," but the amendment actually only requires it from those who vote "in person."
2. It omits any mention of the "substantially equivalent" verification provision.
3. It fails to disclose that the proposed amendment would requirement government-issued ID (and not just any ID).
4. It fails to disclose that the proposed amendment would require provisional voting.
5. It has a misleading title for the proposed amendment--"Photo Identification Required for Voting."
The proposed amendment came about after the legislature first passed voter ID and the governor vetoed it. Rather than overriding the veto, the legislature voted to put the measure on the ballot as a constitutional amendment.
May 29, 2012
Washington Judge Defers to State AG in Health Reform Challenge
Washington Superior Court Judge Sharon S. Armstrong denied the plaintiffs' motion for a preliminary injunction, or in the alternative for a permanent injunction and mandamus, in Mackey v. McKenna, the state court suit by a group of Washington women against the state attorney general challenging the state AG's role in the Affordable Care Act litigation now at the Supreme Court.
As we posted, a group of Washington women sued state AG Rob McKenna seeking a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate. The plaintiffs claimed that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place--in other words, to sever the mandate. Yet he joined the state in the multi-state suit challenging the entire ACA, and the plaintiffs' position in that case that the mandate was not severable. The plaintiffs said that this violated his professional duties to Washingtonians.
Judge Armstrong rejected the argument. She wrote:
Had Attorney General McKenna taken the formal legal position that only severability could protect the interests of the State of Washington and its citizens, and then filed contrary briefing in the federal courts, he would have violated his ethical duty to faithfully represent the interests of the State of Washington and its residents, would have improperly relinquished control over his role in the litigation to other attorneys general, and filed an erroneous brief to the U.S. Supreme Court.
But here the court found that statements by McKenna contrary to his litigation position were merely "political statements by an elected official," and were thus "issues to be addressed in the political realm." In the end, Judge Armstrong wrote that the court "lacked authority to second-guess the attorney general's legal strategy in the health care reform litigation, whatever the wisdom of his legal strategy."
The ruling is hardly a surprise. The case was a stretch to begin with, and even the plaintiffs' requested relief wouldn't have changed the picture at the Supreme Court. It was really about holding AG McKenna accountable for his statements, and his actions. Judge Armstrong was clear: Any holding-to-account should go through the ordinary political process, not the courts.
His own op-ed, for example, argues that the Constitution itself is responsible for current political pathologies. He singles out the Electoral College and the composition of the Senate for special note, both of which result in states such as New York, California, and Texas being diminished.
This incorrect equality amongst states is also highlighted by Kevin Bleyer in his new book, Me The People. To be sure, Bleyer is a comedy writer, but as he argues in the recent excerpt in Salon, "despite what the original Constitution of the United States says about the qualifications for statehood and the guarantee of representation," there are just some states that don't deserve their status. One rationale for such disrespect: there are "more Americans in prison than in Nebraska."
For his part, Sandy Levinson focuses on Article V as "the worst single part of the Constitution" because it has made the US Constitution "among the most difficult to amend of any in the world." He argues that the "near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about."
Yet amending the Constitution - - - by repealing an Amendment - - - was a topic in a debate among Republican hopefuls for one of Missouri's two seats in the United States Senate. The Amendment in question is the Seventeenth Amendment; "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures." Recall that prior to the Seventeenth Amendment, Article I §3 controlled: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . ." So, basically, the Seventeenth Amendment required direct election of Senators.
As the St. Louis Beacon reports, Senate hopeful (and current US Representative) Todd Akin thought a repeal of the Seventeenth Amendment might shift the balance back towards "states rights." The other candidates were less interested in the issue. Their respective statements are available on YouTube, linked at the St Louis Beacon article. And there are certainly more scholarly discussions, including one between Todd J. Zywicki and Ilya Somin hosted by the Federalist Society last year.
For those participating in summer institutes for undergraduates or comparative law programs, there is much fodder here.
[image: 17th Amendment as ratified via]