Friday, November 9, 2012

Supreme Court Puts Voting Rights in Crosshairs

The Supreme Court on Friday agreed to hear the Shelby County challenge to the preclearance provision of the Voting Rights Act as reauthorized in 2006.  The preclearance provision, Section 5, is the centerpiece of the VRA; it requires covered jurisdictions--those with a particularly ugly history of discrimination in voting--to obtain preclearance from the U.S. Department of Justice or a three-judge federal court in D.C. before making any changes to their voting laws.  The Court criticized Section 5 just three-and-a-half years ago in Northwest Austin Municipal Utility District v. Holder for not keeping up with improvements in covered jurisdictions and for intruding on the states.  The Court wrote that Section 5 raised "serious constitutional questions," but declined to rule on its constitutionality.  Thus Section 5 survived Northwest Austin--but just barely.

The cert. grant in the Shelby County case asks whether Section 5 is unconstitutional in light of Congress's reauthorization of it using pre-existing Section 4(b) coverage.  Section 4(b) sets a formula for which states and counties are covered jurisdictions and therefore must obtain preclearance before changing their voting laws.  The two sections go hand-in-hand, and a ruling overturning Section 5 would render Section 4(b) null.  But a ruling overturning only Section 4(b) could leave Section 5 in place.  Such a ruling would require Congress to go back and determine the covered jurisdictions more carefully--something some say it failed to do when it reauthorized the VRA in 2006 (and hasn't done since).

The way the Court poses the question presented leaves this possibility open--and it's the more restrained option for a Court inclined to overturn something in the 2006 reauthorization.  But it seems highly unlikely.  Section 5 is almost certainly the real target, whatever the coverage formula in Section 4(b).  Here's the QP:

Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

The QP's references to the Tenth Amendment and Article IV ensure that the case will center on federalism concerns.  Northwest Austin said as much, with its language suggesting that Section 5 unduly intrudes on the states.

The Court took no action on another Section 5 challenge, Nix.  Petitioners in that case filed their cert. petition at the same time that the Shelby County petitioners filed, in late July.


November 9, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Rejects Torture Claim Against Rumsfeld

The en banc Seventh Circuit this week ruled in Vance v. Rumsfeld that two American military contractors had no cause of action against former Defense Secretary Donald Rumsfeld for torture.  The ruling was expected: the court previously vacated the three-judge panel ruling allowing the case to move forward; oral arguments suggested that the full court was hostile to the plaintiffs' claims; and the ruling aligns with similar (but distinguishable and less sweeping) rulings in the Fourth and D.C. Circuits.  We posted last on the case, with links to an earlier post, here.

The ruling ends the plaintiffs' case and effectively creates absolute immunity against such claims for military personnel and their civilian commanders--at least in the Seventh Circuit.  Given similar rulings in the Fourth and D.C. Circuits--and no circuit going the other way--the case almost surely will not attract the attention of the Supreme Court.  (Even if the Court took it up, it would almost certainly affirm the Seventh Circuit's ruling, given its trend with Bivens actions.)  The case also extended the no-supervisory-liability rule for Bivens claims (affirmed in Iqbal), holding that Secretary Rumsfeld's alleged authorization of torture, even if true, was simply too attenuated from the actions of those who actually tortured the plaintiffs.  

The case involved two American military contractors who claimed that they were detained and tortured by military authorities in Iraq.  They sued Secretary Rumsfeld under Bivens based on his alleged authorization of torture techniques.  

The en banc Seventh Circuit reversed a three-judge panel and held that Bivens did not offer a remedy to the plaintiffs.  Chief Judge Easterbrook, writing for the court, set the tone early in his opinion, expressing hostility to "creating new Bivens claims":

[The Supreme Court] has not created another [Bivens] remedy during the last 32 years--though it has reversed more than a dozen appellate decisions that had created new actions for damages.  Whatever presumption in favor of a Bivens-like remedy may once have existed has long since been abrogated.  The Supreme Court never created or even favorably mentioned the possibility of a non-statutory right of action for damages against military personnel, and it has twice held that it would be inappropriate to create such a claim for damges.  The Court has never created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States.  Yet plaintiffs propose a novel damages remedy against military personnel who acted in a foreign nation--and in a combat zone, no less.

Op. at 9.  Chief Judge Easterbrook wrote that "special factors" counseled against a Bivens remedy, in particular the courts' relative inability to assess the merits of military policies and decisions.  Chief Judge Easterbrook also mentioned that Congress declined to create a statutory remedy, suggesting that it didn't want plaintiffs suing military personnel or their superiors, and that Congress created two administrative paths to remedies but that the plaintiffs did not pursue them.  "But Congress has not authorized awards of damages against soldiers and their superiors, and creating a right of action in common-law fashion would intrude inapropriately into the military command structure."  Op. at 17.  

Note that the ruling (Part III) extends to "soldiers and their superiors," even though this case was only against Secretary Rumsfeld.

Chief Judge Easterbrook also wrote that Secretary Rumsfeld's authorization of torture was too attenuated from the actions of those who actually tortured the plaintiffs to survive the no-supervisor-liability rule for Bivens claims.  The plaintiffs sought to navigate this rule by alleging that Secretary Rumsfeld personally authorized torture--i.e., that he wasn't vicariously liable, but was rather directly responsible.  But Chief Judge Easterbrook wrote that Iqbal requires that a defendant "wants the unconstitutional or illegal conduct to occur."  Op. at 19.  That, he said, the plaintiffs did not allege.

Judge Wood concurred in the judgment only but wrote separately to emphasize that the alleged actions were torture, and could not hide behind the euphamism of enhanced interrogation techniques.  Judge Wood also disagreed with the majority insofar as its opinion (Part III) would insulate military personnel (and not merely the Secretary of Defense) from Bivens liability.  

Judges Hamilton, Rovner, and Williams all wrote a separate dissent and all joined each others' dissents, emphasizing different points.  Judge Hamilton pointed out that the ruling gives more rights to aliens (under the Torture Victim Protection Act) than U.S. citizens and explained in great detail why U.S. law, in fact, assumes that the plaintiffs should have had a Bivens claim.  Judge Rovner argued that the plaintiffs pleaded sufficiently specific facts related to Secretary Rumsfeld's direct responsibility to survive the pleading standards set in Iqbal and Twombley.  And Judge Williams emphasized the remarkable scope of the majority's opinion.  "No case from our highest court or our sister circuits has approached such a sweeping conclusion."  Op. at 73.


November 9, 2012 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Daily Read: Iron Curtain and Constitutional Rights

9780385515696_custom-07bec2eeb38f9203f224afe4e12dd9d64e1a0026-s15Anne Applebaum's new book, Iron Curtain: The Crushing of Eastern Europe 1945-1956, is a sequel of sorts to her book Gulag, which won the Pulitzer prize.  In a recent interview with Terry Gross on Fresh Air, Applebaum talked about the centrality of controlled media and art to Soviet Communist domination. 

For example, there was a government suppression of "abstract art":

The fear of abstract art is that it could be interpreted in many ways, and who knows what you could read into a painting that didn't have a clear message? One of the obsessions that the Soviet Union and the Eastern European communist parties had was always controlling the message — all information that everybody gets has to be carefully controlled and monitored. Art was no exception. Art was supposed to tell a story, it was supposed to have a happy ending, it was supposed to teach, it was supposed to support the ideals of the party. There was no such thing as art for art's sake, and there was no such thing as art reaching into some kind of spiritual, wordless realm. No, art was done in service of the state, and it was something that was going to help mold people and create citizens who do what the state tells them, and who follow the rules.

While her project is not a comparative one, her book demonstrates the centrality of the constellation of rights protected under the United States' Constitution's First Amendment, including expression, media, and religion.  Also important would be any rights of habeas corpus, due process, and those pertaining to criminal procedure as a means of resistance to government oppression. 


November 9, 2012 in Books, Comparative Constitutionalism, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, November 8, 2012

Federal Judge Enjoins California Prop 35 Requiring Sex Offender Internet Disclosures

In a brief order in Doe v. Harris, federal district judge Thelton Henderson has issued a temporary restraining order of the implementation of Proposition 35 that requires sex offenders to disclose their internet providers and identities to law enforcement.

California ballot
As described by the motion, filed by the ACLU, "the Californians Against Sexual Exploitation Act (“CASE Act” or “Act”), was enacted by voter initiative" Tuesday and is effective Wednesday:

It expressly requires all of the 73,900 current California registrants currently living in the community to “immediately” provide the police with information about their access to and use of the Internet for expressive purposes; they must also document and disclose any additions or changes to such information within 24 hours. A failure to comply with any of these new requirements is a crime, often a felony.

The challengers argue that the law is an unconstitutional infringement on anonymous speech, that its discrimination amongst speakers warrants strict scrutiny, and that its requirements are not sufficiently tailored to meet either strict scrutiny or intermediate scrutiny.

The judge found that there were sufficiently serious First Amendment issues for a temporary restraining order to issue.

The order scheduled an expedited filing schedule with a hearing set for November 20.


November 8, 2012 in First Amendment, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Non-Citizens and Constitutional Rights

400px-Immigration_Reform_Leaders_Arrested_5The constitutional "rights" of noncitizens are now less likely to be successfully argued under equal protection theories than under federalism (preemption) or administrative agency power issues according to Geoffrey Heeren in his article Persons Who Are Not The People: The Changing Rights of Immigrants in The United States, forthcoming in 44 Colum. Hum. Rts. L. Rev. and available in draft on ssrn.

Heeren reminds us that in the 1886 case of Yick Wo v. Hopkins, the United States Supreme Court recognized the Fourteenth Amendment equal protection claims by noncitizens, including immigrants within its definition of "we the people."  Yet, although such early Supreme Court cases upheld immigrants’ right to work in the face of state restrictions, relying heavily on the logic and rhetoric of natural rights, in more recent cases such as Arizona v. United States these equality norms are missing.  Heeren argues this is a loss given the importance of "rights."  He concludes:

In this climate, perhaps the best that can be hoped is for immigrants to invoke individual rights proxies like federalism or agency skepticism. But history, even U.S. legal history, is full of sudden change. The contemporary Supreme Court may prioritize structural rights based on federalism over individual rights and administrative law claims over constitutional ones. But these currently prevailing doctrines evolved from a very different state of affairs—one in which immigrants succeeded to a remarkable extent in pressing claims as equals.

Heeren's article is worth considering not only in light of his excellent discussion of various constitutional doctrines but also in terms of the political consequences of "rights" for noncitizens.

[image via]

November 8, 2012 in Equal Protection, Federalism, Preemption, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 7, 2012

Daily Read: Elizabeth Warren on Federalism and Administrative Constitutionalism

With the election of Elizabeth Warren to the United States Senate, today might a good time to reread her  article Unsafe at Any Rate, published in Democracy: A Journal of Ideas in 2007.


Warren was arguing for the creation of a new federal agency, the Financial Product Safety Commission.  In doing so, she not only argued in favor of regulation (using an originalist argument among others), but also argued that federal regulation was appropriate:

The credit industry is not without regulation; credit transactions have been regulated by statute or common law since the founding of the Republic. Traditionally, states bore the primary responsibility for protecting their citizens from unscrupulous lenders, imposing usury caps and other credit regulations on all companies doing business locally. While states still play some role, particularly in the regulation of real-estate transactions, their primary tool–interest rate regulation–has been effectively destroyed by federal legislation. Today, any lender that gets a federal bank charter can locate its operations in a state with high usury rates (e.g., South Dakota or Delaware), then export that states’ interest rate caps (or no caps at all) to customers located all over the country. As a result, and with no public debate, interest rates have been effectively deregulated across the country, leaving the states powerless to act. In April of this year, the Supreme Court took another step in the same direction in Watters v. Wachovia, giving federal regulators the power to shut down state efforts to regulate mortgage lenders without providing effective federal regulation to replace it.

Recall that in Watters, the Court found no merit in the Supremacy Clause (preemption) and Tenth Amendment arguments.

Warren also argued that a federal agency could intervene more successfully than Congress because "the financial services industry is routinely one of the top three contributors to national political campaigns, giving $133 million over the past five years" and thus "the likelihood of quick action to respond to specific problems and to engage in meaningful oversight is vanishingly slim."  

Although Congress eventually passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, with a FPSC agency, Elizabeth Warren was not named as its head given strong opposition to her by the Senate - the legislative body she will now be joining.

[image: Elizabeth Warren via]

November 7, 2012 in Campaign Finance, Commerce Clause, Current Affairs, Federalism, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 6, 2012

How Does the Electoral College Work, Anyway?

Here's a primer, courtesy of CNN:


Here's more detailed information, in FAQs and in text, thanks to the National Archives.  And here's a NARA video:


WAMU's Diane Rehm hosted a wonderful show with Profs. James Thurber and Jeffrey Rosen last month.  Here's a short report from the Congressional Research Service, and here's a report from the U.S. Election Assistance Commission.


November 6, 2012 in Elections and Voting, News | Permalink | Comments (0) | TrackBack (0)

First Amendment Problems With Prohibitions of Election Documentation?

628x471Smartphone cameras plus social media distribution pose many possibilities of First Amendment challenges to laws prohibiting recording, such as the recording of law enforcement officers as we've previously discussed. 

On Election day, the existence of a wide array of laws prohibiting recording inside polling places - - - collected at Citizen Law Media Project - - - might be violated by a casual posting of a ballot to a facebook page.  Although many of the statutes seem to be aimed at prohibiting voter intimidation or at regulation of the media, and thus their extension to the recording of one's own vote would seem a matter of statutory construction, any construction would occur in light of the First Amendment, as would the intimidation and media regulations.  Of special constitutional concern are the laws and regulations that delegate (seemingly total?) discretion to local polling officials. 

The First Amendment interests involved would not only be the personal/artistic ones of an interesting facebook page or personal scrapbook, but also ones more central to democracy, such as identifying problems with voting protocols such as the machinery recording an incorrect vote (video below).



[image of ballot via]


November 6, 2012 in Current Affairs, Elections and Voting, First Amendment, News | Permalink | Comments (0) | TrackBack (0)

Daily Read: Counting Votes . . . in 1792

463px-John_Jay_(Gilbert_Stuart_portrait)In The Founders’ Bush v. Gore: The 1792 Election Dispute and its Continuing Relevance, published in Indiana Law Review and available in draft on ssrn, Professor Edward B. Foley provides a historical perspective on election disputes.

Foley argues that the contentious election for Governor of New York between the incumbent, George Clinton, and the challenger, John Jay (pictured) provides an important window into the constitutional shortcomings of elections.  Foley demonstrates that when the Founders were confronted with a vote counting dispute, they were ill-equipped to resolve it. 

Professor Foley discusses the role of lawyers and legal principles, but also tells us that after "the canvassing committee announced its decision against John Jay, there was great public agitation," including what Alexander Hamilton called talk of the “bayonet.”  Foley argues the Founders were a "generation of revolutionaries who were not afraid of extralegal means to secure their fundamental right to a representative democracy."  He reminds us that the  "it was not just the revolt against England that was revolutionary," but also the "Constitution itself was an unauthorized break from the legal regime of the Articles of Confederation."   The question for John Jay and his supporters "was whether to take to the streets and demand a new constitutional convention for the state of New York that would undo what they viewed as the partisan atrocity committed by the canvassing committee." 

A good read for Election Day.


November 6, 2012 in Elections and Voting, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2012

D.C. Circuit Says Navy Chaplains Have Standing to Challenge Promotion Policies

A three-judge panel of the D.C. Circuit ruled in In re Navy Chaplaincy that Navy chaplains have standing to lodge their Establishment Clause claims against the Navy's chaplain promotion policies.  The court also ruled that the lower court issued insufficient factual findings for it to review the chaplains' likelihood of success on the merits in evaluating their motion for a preliminary injunction.  The court thus reversed the lower court ruling and remanded for further findings.  In short, the ruling means that the case will go back to the lower court for additional findings related to one of the chaplains' Establishment Clause claims on their motion for a preliminary injunction.

The chaplains argued that Navy policies violated the Establishment Clause in two ways.  First, they argued that the Navy improperly delegated government authority over promotion decisions to a religious entity by allowing chaplains themselves to make promotion decisions without sufficient, secular standards.  Next, they argued that the Navy's promotion procedure--small selection boards, secret votes, and the appointment of the Chief of Chaplains as president--have resulted in denominational discrimination and, if not, will likely result in such discrimination in the future.

The district court ruled that the chaplains lacked standing (because they alleged future speculative harms, not imminent harms) and that they were unlikely to succeed on either substantive claim.  It thus dismissed the case and alternatively rejected the chaplains' motion for a preliminary injunction.

The D.C. Circuit reversed.  It ruled that the chaplains had standing, because they challenged actual policies that the Navy planned to use in the future, and because at least some chaplains will probably appear before selection boards in the near future.  Comparing the case to City of Los Angeles v. Lyons the court wrote, "Unlike in other cases, like Lyons, where plaintiffs speculated about the very existence of the unwritten discriminatory practices at issue, here the Navy acknowledges that the challenged policies and procedures not only exist, but will continue to govern the conduct of future selection boards."  Op. at 9.

The court agreed with the district court that the chaplains were unlikely to succeed on their first substantive claim--the one about delegation of authority to a religious entity without standards.  (The court wrote that there were standards, making this case a "far cry from the 'standardless' delegation scheme at issue in [Larkin v. Grendel's Den, Inc.]."  Op. at 14.  But the court said that the lower court didn't issue sufficient facts for it to evaluate the second claim--the one about the likely discriminatory effects of the promotion procedure.  It thus remanded the case for findings on this claim.


November 5, 2012 in Cases and Case Materials, Establishment Clause, First Amendment, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Frontline on Montana Campaign Finance

PBS's Frontline released a documentary last week on campaign finance in Montana that's well worth a look.  The documentary provides background on American Tradition Partnership v. Bullock, the case challenging Montana's restriction on independent campaign expenditures.  The Supreme Court summarily reversed a lower court ruling in that case upholding the restriction.

We covered the Supreme Court's recent rejection of an application to vacate the Ninth Circuit's stay of a lower court ruling that Montana's campaign contribution limits violated the First Amendment.


November 5, 2012 in Campaign Finance, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Father Chief Justice Comes to Social Law Library

Actor, playwright, and Con Law Prof Paul Baier (LSU) will stage his play "Father Chief Justice" Edward Douglass White and the Constitution this Friday, 11/9, at the Social Law Library at the John Adams Courthouse in Boston.  Four members of the Massachusetts Supreme Judicial Court will be on stage as Holmes, Fanny Holmes, Brandeis, and Chief Justice White.  Here's the invitation; here's the program.

We previously posted on the play--when it visited the Library of Congress--here, with video.


November 5, 2012 in Music | Permalink | Comments (0) | TrackBack (0)

Daily Read: Take a Look at Glamour Magazine

While Glamour magazine might not be a usual ConLawProf read, the Women of the Year issue features none other than Supreme Court Justice . . . Ruth Bader Ginsburg pictured "wearing her signature white lace collar, at the Supreme Court in Washington, D.C."

Within the seemingly strict word limit, Dahlia Lithwick's profile manages to include quotes not only from Ginsburg, but also President Clinton, Justice Scalia, and Rachel Maddow. 

Women of the year

Unfortunately, Justice Ginsburg did not land the cover of Glamour, but this is a fun read and might prove inspiring for its targeted demographic of young women.

[image via]

November 5, 2012 in Current Affairs, Gender, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, November 4, 2012

Dems Sue to Extend Early Voting in Florida

The Caucus blog at the NYT reports that state Democrats sued on Sunday to extend the state's early voting and that local election officials in five counties agreed to accept absentee ballots on Sunday.

The moves came in response to long lines at Florida's early voting sites on Saturday, with some voters reportedly waiting up to seven hours to vote, and Governor Scott's refusal to extend early voting to Sunday.  The moves by local election officials allow early voting on Sunday by way of absentee ballots in Miami-Dade, Palm Beach, Hillsborough, Orange, and Pinellas counties.  (In another case, a judge extended in-person, non-absentee early voting Sunday at one site in Orange County after a polling station was forced to shut down Saturday over a suspicious package.)

Recall that Florida changed its early voting law for the 2012 election, eliminating the Sunday before the election as an early voting day.  The change drew a lawsuit, Brown v. Detzner, which we covered here.  The judge in that case rejected the plainitffs' motion for a preliminary injunction in late September, leaving the changes in place for Tuesday's election.


November 4, 2012 in Current Affairs, Elections and Voting, News | Permalink | Comments (0) | TrackBack (0)