Friday, September 14, 2012
A state judge has declared sections of the controversial 2011 Wisconsin Act 10 unconstitutional as violative of state constitutional provisions. This follows a federal district judge also declaring portions of Act 10 unconstitutional in March.
In today's 27 page opinion in Madison Teachers Inc. v. Walker by state judge Juan Colas rejected the challenges based on the state constitutional provision limiting special sessions and the takings clause, as well as arguments that the controversy was nonjusticiable.
However, the judge found Act 10 violated the free speech, free association, and equal protection state constitutional protections, construing them as consistent with federal interpretations of the First and Fourteenth Amendments. Much of the judge's reasoning stressed that Wisconsin did not come forward with any arguments. The judge also found that there was a violation of the Wisconsin constitutional provision guaranteeing Milwaukee home rule.
[image: protests of Act 10 via]
Are the First Amendment's Religion Clauses good for women?
ConLawProf Marie Ashe suggests not, at least as the constitutional provisions have been interpreted by the Supreme Court since 1879.
The article, Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law, 21 Temple Political & Civil Rights Law Review 163, is available on ssrn.
It's a must-read for anyone teaching First Amendment or doing scholarly work on the history or current construction of the Religion Clauses.
[image: The Baptism of Pocahontas, by John Gadsby Chapman, circa 1840, via]
Thursday, September 13, 2012
Judge Katherine B. Forrest (SDNY) ruled in Hedges v. Obama that the detention authority in Section 1021 of the National Defense Authorization Act violated free speech and free association and was unconstitutionally vague. Judge Forrest issued a permanent injunction against its enforcement.
The ruling comes nearly four months after Judge Forrest issued a temporary injunction in the same case. The ruling means that the government cannot use Section 1021 as authority for military detention--at least in the Southern District, if not beyond--and it warns the government strongly against using the AUMF instead. Judge Forrest wrote that the AUMF never authorized the kind of detention authorized in Section 1021--that Section 1021 is a new and different kind of detention authority--undermining the government's claim that the AUMF allowed this all along. According to Judge Forrest, it didn't. And still doesn't. The ruling thus not only strikes Section 1021; it also strikes at the government's sweeping theory of detention under the AUMF itself. Needless to say, the ruling is a huge victory for opponents of limitless and military detention without trial.
Recall that the plaintiffs in the case, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 violated the First Amendment. That Section provides:
(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described under subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(d) Construction. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons."
Judge Forrest agreed. She ruled that the government had done nothing since the preliminary injunction to better or more clearly define vague terms in that subsection, and that it had done very little to assure her that the plaintiffs in this case wouldn't be subject to detention under its authority. Here are some key points from the ruling:
- Standing. Judge Forrest rejected the government's claim that the plaintiffs lacked standing, particularly becuase the government had done almost nothing to persuade her that the plaintiffs might not be subject to detention under Section 1021 in violation of the First Amendment. Since the preliminary injunction, the government only issued a highly qualified statement that said that the plaintiffs, based solely on their independent activities described in their affidavits and testimony, wouldn't be subject to detention. For Judge Forrest, this wasn't enough. The highly qualified statement left the door wide enough open for prosecution of protected activities that the plaintiffs still had standing.
- AUMF Authority. Judge Forrest categorically rejected the government's repeated claim in this litigation (and elsewhere) that Section 1021 only codified authority that it already enjoyed pursuant to the AUMF. Judge Forrest was clear that the authorities differed--and that Section 1021 added to authority under the AUMF, that the AUMF didn't go so far as to authority detention of those "substantially or directly supporting" "associated forces." She wrote that the government itself extended its own authority under the AUMF to resemble something like the authority codified in Section 1021, but that the AUMF itself (without the government's subsequent gloss) does not grant the same authority as Section 1021. (The AUMF authorizes "all necessary and appropriate force against those . . . [who the President determines] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ." Compare that language to the language of Section 1021(b)(2), above.)
- Alternative Use of AUMF. Related to that last point, Judge Forrest issued a strong statement warning the government against using the "substantially or directly supporting" theory as the basis of any detention. She wrote,
If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of "substantially or directly supporting" associated forces, as set forth in Section 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.
Op. at 14.
- Habeas. Judge Forrest categorically rejected the government's claim that habeas would ensure that detainees under Section 1021 would get their day in court. She said that if only habeas review were available to U.S. citizens detained within the U.S., core constitutional rights (like the right to a jury trial in a criminal case) would be eliminated.
September 13, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Mootness, News, Opinion Analysis, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)
"For years it has been clear that Antonin Scalia assumes he is the smartest, funniest, most important person in any room. I don't think John Roberts agrees."
Wednesday, September 12, 2012
The Supreme Court of Appeals of West Virginia ruled in State of West Virginia ex rel Loughry v. Tennant that the matching funds provision in the state's public campaign finance law violated the First Amendment. The ruling follows the Supreme Court's decision in 2011 in Arizona Free Enterprise Club's Freedom PAC v. Bennett striking a similar Arizona law.
West Virginia's law, enacted in 2010, before Arizona Free Enterprise came down, provided a lump-sum initial payment to any participating candidate in a state election for the state Supreme Court of Appeals. It then provided matching funds for a participating candidate when a privately-financed opposing candidate spent the amount equivalent to the lump-sum payment plus twenty percent. In short, this meant that a participating candidate would receive matching funds from the state above the initial lump-sum payment whenever his or her privately-funded opponent spent more than the initial lump-sum payment plus twenty percent. Thus West Virginia's scheme forced the same kind of speech-restricting choice on a non-participating candidate that the Supreme Court said was foisted on a non-participating candidate in Arizona Free Enterprise: spend more (i.e., speak more) and trigger matching funds for your opponent, or don't spend/speak more.
West Virginia's law only applied to judicial candidates for the state Supreme Court of Appeals, though. This was by design: the legislature was concerned about the reputation of the judiciary in light of the problems that gave rise to Caperton v. A.T. Massey Coal Co., among others. The petitioner here argued that West Virginia's law was distinguishable from Arizona's for that reason--that judicial elections raise especial concerns that exempt them from the analysis in Arizona Free Enterprise.
The court rejected that argument and ruled that Arizona Free Enterprise applied with full force to all elections,including judicial elections. It went on to say that the matching fund scheme wasn't narrowly tailored: the state could have adopted a less speech-restrictive means to achieving its interest by simply increasing the amount of the initial lump-sum payment; and the matching fund scheme didn't advance the state's interest in protecting the impartiality and integrity of the judiciary in an election where three of the four candidates were self-financed.
The court allowed the petitioner to keep his initial lump-sum payment, however, saying that there was no constitutional problem with that.
The case means that the petitioner, a participating candidate who sought matching funds by way of mandamus after the state itself concluded that the matching fund scheme was unconstitutional and declined to pay, will not get matching funds for his election. And because the court ruled the scheme unconstitutional, neither will anybody else.
Tuesday, September 11, 2012
In its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes. The district judge granted a preliminary injunction against the statutes' enforcement.
At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute. The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.
The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey. The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:
If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).
The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."
The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.
For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.
[image: The Prisoner, artist unknown, circa 1907, via]