Thursday, February 28, 2013

Debate on Three-Fifths Compromise

The NYT recently hosted an on-line discussion and debate on the three-fifths compromise (counting slaves as three-fifths of a person in calculating a state's allocation of House seats), spurred in part by Emory University President James Wagner's comments that the compromise was one of the "pragmatic half-victories" that assured agreement on the Constitution.  The participants, with links to their contributions and profiles:

SDS

February 28, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 27, 2013

Court Seems Poised to Overturn Voting Rights Act

The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act.  If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.

Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws.  This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race.  This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination.  (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA.  Section 2 is not at issue in this case.)

Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments.  In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws.  Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.

The arguments were lively, to say the least.  The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine.  And they all seemed to have their minds made up, more or less.  If there are swing votes, look to Chief Justice Roberts or Justice Kennedy.  Although they seemed set in their positions, they seemed perhaps the least set.  

Substantively, there were few surprises.  Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument).  So these points that came up today are familiar:

  • Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
  • Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
  • Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
  • Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
  • Whether with a string of reauthorizations preclearance will ever not be necessary.

On this last point, it was clear that for some justices the government was in a tough spot.  On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide.  But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary.  (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)

All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.  

This doesn't mean, necessarily, that the whole scheme will go down.  There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b).  But this result would likely doom the whole scheme, in fact.  That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country.  Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.

There was a low point.  Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:

Now, I don't think that's attributable to the fact that it is so much clearer now that we need this.  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.  It's been written about.  Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

It's not exactly clear what's the "racial entitlement" in Section 5.  Section 5 is simply not an entitlement provision.  But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race?  If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes."  As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.

SDS

February 27, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Oral Argument Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit Rejects First Amendment Claims from "Fortune Teller"

In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers."  The fortune tellers must have a business license, like all other businesses, but must also:

  • have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
  • pay a license tax of $300;
  • be located within particular business districts, excluding certain other business districts.
Justice_tarot_charles6
"Justice" Tarot Card circa 15th Century

As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection.  In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine." 

As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.

The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."

As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:

Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.

In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny.  Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.

This is a case ripe for critique and would make a terrific subject for student scholarship.

RR
[image via]

 

February 27, 2013 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Daily Read: William Faulkner and the Voting Rights Act

424px-William_Faulkner_01_KMJAs the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of  Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others.  But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.

Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully."  Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins."  Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results.  These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions.  Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.

While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.

RR
[image of William Faulkner via]

February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2013

Eleventh Circuit Affirms Preliminary Injunction Against Florida's Mandatory Drug Testing of Welfare Recipients

In its unanimous panel opinion today in Lebron v. Sec't Florida Dep't of Children & Families, the Eleventh Circuit affirmed a district judge's grant of a preliminary injunction against Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits. 

Recall that 16 months ago, Federal District Judge Mary Scriven issued a preliminary injunction against the controversial law championed by equally controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant.   As the Eleventh Circuit panel made clear, it was not resolving "the merits of the constitutional claim" but only addressing "whether the district court abused its discretion in concluding that Lebron is substantially likely to succeed in establishing that Florida’s drug testing regime for TANF applicants violates his Fourth Amendment rights."

 

Albert_Bierstadt_Florida_Scene
"Florida Scene" by Albert Bierstadt

 


Nevertheless, the Eleventh Circuit's opinion, authored by Judge Rosemary Barkett, left little room to argue that the statute could survive a constitutional challenge.  Barkett observed that in the "specific context of government-mandated drug testing programs, the Supreme Court has exempted such programs from the Fourth Amendment’s warrant and probable cause requirement only where such testing 'fit[s] within the closely guarded category of constitutionally permissible suspicionless searches,'" requiring that the "proffered special need for drug testing must be substantial,” citing Chandler v. Miller, 520 U.S. 305 (1997).  These special needs include "the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system’s care and tutelag."  The Eleventh Circuit easily found that welfare recipients did not fall into a special needs category:

The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”

The Eleventh Circuit also rejected Florida's "consent" argument.  Because under Florida’s program an applicant is required to sign an acknowledgment that he or she consents to drug testing, the State argued these consented-to searches are reasonable under the Fourth Amendment.  The Eleventh Circuit deemed Florida's reliance on Wyman v. James, 400 U.S. 309 (1971) "misplaced," because there the home visit by the social worker as a condition of receiving welfare benefits was not considered a search, while drug testing does constitute a search. 

The Eleventh Circuit briefly discussed "unconstitutional conditions," a theme that Judge Jordan, in a brief concurring opinion, echoed. But Jordan's discussion of unconstitutional conditions provided perhaps the only possibility that Florida might ever prevail, although interestingly relying largely upon First Amendment doctrine.

Judge Jordan's concurring opinion, however, questioned the outcome of any test requiring that the means chosen serve the government interest:

I am skeptical about the state’s insistence at oral argument that the Fourth Amendment permits the warrantless and suspicionless drug testing of all TANF applicants even if the evidence shows, conclusively and beyond any doubt, that there is 0% drug use in the TANF population. The state’s rationale—that such drug testing is permissible because the TANF program seeks to “move people from welfare to work”—proves too much. Every expenditure of state dollars, taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not being misused and that policy goals (e.g., the graduation of such students) are being achieved. Constitutionally speaking, the state’s position is simply a bridge too far.

The consensus of the federal judges who have considered the Florida statute's constitutionality does seem to be that the statute has definitely gone "too far."

RR
[image via]

February 26, 2013 in Cases and Case Materials, First Amendment, Fourth Amendment, Fundamental Rights, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

The Struggle for Women's Inclusion on UK's Highest Court

Three new Justices have been appointed as Justices of the Supreme Court of the United Kingdom - - - and all of them are men.

Architecture_thebuilding
As the British Prime Minister's Office has announced, "The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom." 

As The Guardian reports, there was some speculation that these appointments were delayed by requests that the selection panel reconsider its choices to address the lack of gender diversity.  At present,  Lady Hale is the only woman Justice on the 12 person Court, a situation she has discussed.

RR

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: https://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: https://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: https://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: https://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: https://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: https://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: https://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

February 26, 2013 in Comparative Constitutionalism, Gender | Permalink | Comments (0) | TrackBack (0)

No Standing to Challenge FISA Amendments on Domestic Surveillance, Supreme Court Holds

236px-EyeglassesdesignIn a 5-4 opinion this morning in Clapper v. Amnesty International USA, the Supreme Court rejected the standing of Amnesty International to challenge domestic surveillance under FISA, the Foreign Intelligence Surveillance Act of 1978 and its amendments, often called FAA (FISA Authorization Amendments).

The ruling puts an end to this challenge to the government's surveillance authority under FISA and ups the ante for any future challenge.  The case says that a plaintiff can't bring a challenge by merely alleging likely surveillance; instead, a person has to show literal "certainly impending" surveillance or actual surveillance.  Either way, the case is very tough.  The problem is that a targeted individual has a real hard time showing that they will be or were subject to FISA surveillance--because it's secret.  That's the whole point.  But the Court said that the ruling doesn't completely insulate FISA from challenge: a person could challenge it after information obtained from surveillance leads to judicial or administrative proceedings; and an electronic communications service provider could challenge a government directive to assist in FISA-authorized surveillance.  Still, even if today's ruling preserves those potential challenges, it almost certainly forecloses any pre-surveillance challenge by a target.

Recall that the Second Circuit held that Amnesty and the other organizations did have standing under Article III.  The unanimous panel rejected the government's contentions that the challengers fears were speculative, writing that "importantly both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur."

The Supreme Court reversed.  In an opinion by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas), the Court wrote that the plaintiffs' claimed injuries were simply too speculative--at each link in the chain:

  • First, it's too speculative whether the government will imminently target communications to which the plaintiffs are parties (especially because the plaintiffs have no actual knowledge of the government's targeting practices under the FISA);
  • But even if, it's too speculative whether the government would use its FISA authority (as opposed to some other surveillance authority) to listen in on the plaintiffs' communications;
  • But even if, it's too speculative whether the FISA court would authorize surveillance on the plaintiffs; and
  • Finally even if, it's too speculative whether the government would succeed in surveillance under this authority.

The Court also rejected the plaintiffs' claim that they suffered harm because they already took measures to protect themselves against surveillance.  The Court said that plaintiffs can't sidestep the "imminent harm" requirement for standing (which they did not meet, as above) by claiming that they took steps to avoid a possible harm.

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.  Justice Breyer wrote that "there is a very high likelihood that Government, acting under the authority of [FISA], will intercept at least some of the [plaintiffs' communications.]"  Dissent at 6 (emphasis in original).  That's because the plaintiffs engage in communications that the government is authorized to intercept, there are strong motives to intercept, the government has intercepted similar communications in the past, and the government has the capacity to intercept.  Justice Breyer wrote that this "very high likelihood" is enough: the Court has never used the requirement for "certainly impending" harm according to its literal definition; instead, the Court's used this language more flexibly.

It's not clear whether the Court's ruling necessarily signals a tightening of standing requirements outside this unique context--a challenge to a government action, when, because of the very nature of the action, the target can't know with certainty that he or she has been subject to the government action.  Justice Breyer discusses Court cases (at length), including relatively recent cases, that employ a more flexible imminence requirement.  The Court did nothing to question the continued vitality of those cases.  Indeed, in footnote 5, page 16, Justice Alito wrote that to the extent that a "substantial risk" standard is different than a "clearly impending" standing for the imminence requirement, the plaintiffs here didn't meet either.

RR and SDS

[image via]

February 26, 2013 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

Is Anti-Solicitation Ordinance Content-Based?

The Fourth Circuit ruled last week in Clatterbuck v. City of Charlottesville that a lower court erred in dismissing a free speech challenge to Charlottesville's anti-solicitation ordinance.  The court remanded the case for further proceedings.

The ruling means that the case will go back to the district court to determine whether the City had an intent to censor speech in adopting the ordinance.  If so, the ordinance will be subject to strict scrutiny analysis (and almost certainly be struck); if not, it'll get the test for time-place-manner regulations in a public forum (and likely be upheld, at least by the district court, since it already upheld it under this test).

The case tests Charlottesville's ordinance that bans panhandling--solictation for immediate donation of anything of value--in a particular area on the Downtown Mall.  The lower court granted the City's motion to dismiss the case, ruling that the ordinance was a content-neutral time-place-manner regulation on speech.  The lower court came to this conclusion based in part on testimony at a city council meeting in favor of the ordinance, which it said showed that the City adopted the ordinance for content-neutral reasons (safety, and the like).  The testimony was not part of the record on the City's motion to dismiss.

The Fourth Circuit reversed.  It said that under its pragmatic approach to content neutrality, it looks both to the face of the ordinance and to the "censorial intent" behind it.  A challenger must show both in order to trigger strict scrutiny analysis of the ordinance.

Here, the court ruled that the ordinance is content-based on its face, because it distinguishes between solicitation of immediate donations and solicitation of donations in the future.  But it couldn't determine from the record on a motion to dismiss whether there was also "censorial intent."  And it ruled that the district court's evidence of censorial intent--the testimony at the city council meeting--shouldn't have been considered on a motion to dismiss (which wasn't converted to a motion for summary judgment). 

The court said that there wasn't enough evidence in the record at this early stage for it to determine censorial intent, and it remanded the case for further proceedings.

SDS

February 25, 2013 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Sotomayor Focuses on Prosecutor's "Racially Charged" Remark

Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark." 

480px-Sonia_Sotomayor_in_SCOTUS_robeDefendant Calhoun's intent to participate in a drug conspiracy was a central issue and the defendant took the stand.  As Sotomayor explains:

The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."

But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari.  But a strong statement it certainly was:

I hope never to see a case like this again.

RR

February 25, 2013 in Criminal Procedure, Equal Protection, Fifth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Staging Justice Holmes

Playwright and ConLawProf Paul R. Baier (LSU) directed An Evening with Justice Holmes on the stage of the Social Law Library of Boston.  Here's the script.

CURTAIN CALL An Evening with Justice Holmes (2)

Baier cast and directed Justices of the Massachusetts Supreme Judicial Court, Justice Robert Cordy (Holmes), Justice Margot Botsford (Fanny Holmes), Justice Francis Spina (Brandeis), and Justice Ralph Gants (Chief Justice Edward Douglass White) to a packed audience.  The Boston production follows the staging at the Library of Congress on March 8, 2010, Holmes's birthday.

SDS

 

February 25, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Daily Read: Dimock on Torture, Music, and Literature

Peter Dimock's just published book, George Anderson: Notes for a Love Song in Imperial Time, is a novelistic intervention in contemporary anguish about the legality of torture. 

9781564788016In a starred review, Publishers Weekly explains,

The novel takes the form of a letter from Theo Fales, editor and memoir ghostwriter for former CIA operatives, to David Kallen, a government official who directed Special Forces trainers to torture him before signing a document that led to the legalization of torture by the George W. Bush administration. Fales attempts to teach Kallen a method he devised as a, "means by which every person rids the self of its inordinate attachment to empire and creates reciprocity."

It's a brief but challenging book, interweaving music and literature to interrogate the roles of lawyers and journalists regarding the use of torture.   It is worth a read by anyone exploring how the constitutionality of "enhanced interrogation" should be decided.

RR

 

February 25, 2013 in Books, Due Process (Substantive), Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Saturday, February 23, 2013

Second Amendment Doesn't Protect Concealed Carry, Tenth Circuit Rules

A three-judge panel ruled yesterday in Peterson v. Martinez that the Second Amendment doesn't protect a person's right to carry a concealed weapon in public.  The court didn't even apply a particular level of scrutiny or other constitutional test, because it ruled as a threshold matter that the Second Amendment doesn't even apply--that concealed carry doesn't even come within the Second Amendment's sweep.

The plaintiff in the case challenged a Colorado law that allows concealed carry permits for Colorado citizens only (and not out-of-staters).  The plaintiff was a Washington resident, and he therefore didn't qualify.  He argued that the ban on concealed carry for out-of-staters violated the Second Amendment, the right to travel, and Article IV Privileges and Immunities.

In ruling against the plaintiff on his Second Amendment claim, the court quoted Robertson v. Baldwin (1897), which said that "the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons."  The court recognized this as dicta, but said that it followed Supreme Court dicta nearly as closely as it followed holdings, and, in any event, the Court in neither Heller nor McDonald clarified things.  (If anything, the court said, those cases only strengthened the Robertson language.)  Moreover, the court said that bans on concealed carry are "longstanding."  For these reasons, it ruled that the Second Amendment didn't even apply--that concealed carry doesn't fall within the Second Amendment's protection.

Judge Lucero concurred, writing that even if concealed carry fell within the Second Amendment, Colorado's ban on concealed carry for out-of-staters would satisfy the appropriate constitutional test--intermediate scrutiny--because of the state's interest in public safety, and because much of the information necessary to determine whether an individual is qualified for concealed carry is kept in locally maintained databases.  In other words, the state couldn't promote its interest in public safety by licensing out-of-staters, because it couldn't get the information necessary to determine whether they qualified based on other criteria.

The court also rejected the plaintiff's right-to-travel and Article IV claims.  As to the right to travel, the court said that Colorado's ban isn't anything like the kinds of infringements on the right that other courts, including the Supreme Court, have recognized.  As to Article IV, it said that concealed carry is not a privilege or immunity protected by Article IV, as evidenced by the longstanding bans on concealed carry (the same reason why it ruled that concealed carry isn't covered by the Second Amendment).

The ruling came the same day as the Seventh Circuit's en banc ruling overturning Illinois's law banning carrying ready-to-use guns in public.  The two bans are different, though, and the courts' approaches are, too.  Thus the Seventh Circuit looked to whether carrying a ready-to-use gun outside the home goes to self-defense; it said that it did, and that Illinois's ban thus violated the Second Amendment.  The Tenth Circuit looked to whether concealed carry even comes within the Second Amendment's reach.  It looked to history to conclude that it doesn't, and thus upheld Colorado's ban on concealed carry for out-of-staters.

SDS

February 23, 2013 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (2) | TrackBack (0)

Daily Read: Andrew Cohen in The Atlantic on Shelby and the Voting Rights Act

Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.  

Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder .  The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.

 

LyndonJohnson_signs_Voting_Rights_Act_of_1965
"President Lyndon B. Johnson signs the Voting Rights Act of 1965 while Martin Luther King and others look on"

Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy.  Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle."  Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute.  Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."

Cohen concludes that the stakes in Shelby are very high:

If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.

Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.

RR
[image via]

February 23, 2013 in Courts and Judging, Current Affairs, Elections and Voting, Fifteenth Amendment, History, Interpretation, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, February 22, 2013

Padilla Rule Does Not Apply Retroactively

The Supreme Court ruled this week in Chaidez v. United States that the rule announced in Padilla v. Kentucky (2010)--that a criminal defense attorney has to advise his or her client of the deportation risks of a guilty plea--does not apply retroactively to cases already final on direct review.

Retroactivity is governed by the rule in Teague v. Lane (1989).  Under that case, a person whose conviction is already final may not benefit from a "new rule" announced in a subsequent case.  That is: If the Court crafts a "new rule," it doesn't apply retroactively.  Only the application of a settled rule applies retroactively.  Thus the question here was whether the Padilla rule--that an attorney provides ineffective assistance of counsel under Strickland v. Washington by failing to advise the client that he or she could be deported if he or she pleads guilty--is "new." 

The Court in Chaidez said that the usual Strickland/IAC case does not produce a new rule, and therefore would apply retroactively.  But it also said that Padilla was a different sort of IAC case.  It was different because the Court in Padilla had to first determine whether the Strickland/IAC analysis applied at all to a case like that--a case involving collateral, not direct, consequences of an attorney error.  That was an open question before Padilla--and one that many states had resolved against the criminal defendant.  Therefore when the Court announced its rule in Padilla, it broke new ground: it answered an open question, and it answered it in a way that cut against a good deal of state and lower federal court jurisprudence.  This, it said in Chaidez, meant that Padilla set out a new rule, and that it would not apply retroactively.

Justices Sotomayor, joined by Justice Ginsburg, dissented, arguing that Padilla did not set out a new rule, but instead simply applied the Strickland rule to a new set of facts.

SDS

February 22, 2013 in Cases and Case Materials, Fundamental Rights, News, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Denies Review of Gun Ruling

The Seventh Circuit today denied en banc review of its earlier three-judge panel decision in Moore v. Madigan overturning Illinois's prohibition on carrying a ready-to-use gun outside the home.  The panel held that the prohibition violated the Second Amendment.  Today's denial reaffirms that ruling and sets the case up for potential Supreme Court review.  (As of this writing, Illinois AG Lisa Madigan's press office couldn't say whether the state would seek Supreme Court review.)

Recall that the case challenged Illinois's prohibition on carrying guns outside the home.  The earlier panel held that the text, history, and recent precedent on the Second Amendment all supported the conclusion that the Second Amendment right to self-defense extends outside the home.  Judge Posner wrote that opinion; Judge Williams dissented.

Judge Hamilton, joined by Judges Rovner, Wood, and Williams, dissented from today's denial of en banc review.  The dissent echoed Judge Williams's earlier dissent--that the majority's reading stretches the Supreme Court's holdings in Heller and McDonald, both of which turned on a right of self-defense in the home:

First, extending the right to bear arms outside the home and into the public sphere presents issues very different from those involved in the home itself, which is all that the Supreme Court decided in [Heller] and [McDonald].  I will not repeat the debate in the panel opinions reviewing the historical and empirical evidence, for that debate was, in the majority's view, essentially dicta.  The core of the panel majority's reasoning is that because there is a need for self-defense outside the home as well as in, Heller and McDonald should extend to public carrying of loaded firearms. . . .  The logic has some appeal, but its simplicity overlooks qualitative differences between a private home and public streets and buildings that must be considered as we try to interpret [those cases].

Judge Hamilton also noted that the majority's approach sets the Second Amendment test somewhere between rational basis review and strict scrutiny, thus allowing a range of gun regulation, even if not an outright ban on carrying guns outside the home:

  • reasonable limits on who can carry a gun outside the home, including training and proficiency requirements;
  • reasonable limits on where qualified persons can carry firearms in public;
  • reasonable limits on how qualified persons may carry firearms (e.g., loaded or not, concealed, etc.);
  • reasonable limits on which firearms may be carried; and
  • allowing private bans (by bar owners, restaurant owners, and the like) on firearms.

SDS

February 22, 2013 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

State Court Did Not Lack Jurisdiction Over Malpractice Claim in Patent Suit

The Supreme Court ruled yesterday in Gunn v. Minton that a federal statute granting jurisdiction over cases related to patents to federal courts alone did not mean that a state court lacked jurisdiction to hear an attorney malpractice case that grew out of such a patent case.  Let's unpack that:

Minton brought a patent infringement suit in federal court and lost.  Minton's attorneys didn't timely raise an argument that he thought was a winner, and the federal courts held that he waived it.  So he brought a malpractice suit against his attorneys in state court for waiving the argument.  He lost there, too.  On appeal, he argued that federal courts had exclusive jurisdiction over the malpractice claim, and that the state trial court (which ruled against him) lacked jurisdiction. 

Minton's argument turned on two points.  First, 28 U.S.C. Sec. 1338(a) gives federal courts exclusive jurisdiction over any case "arising under any Act of Congress relating to patents."  Next, his malpractice claim required the court to determine whether his waived argument in the original case--an argument based on federal patent law--would have gone his way.  (If the waived argument would have gone his way, he might've succeeded in arguing that his attorneys engaged in malpractice by raising it too late.)  In short, according to Minton: federal law requires that only federal courts determine issues of patents, and his malpractice claim turned on an issue of patents (even if a hypothetical one).

The Supreme Court disagreed.  In a unanimous opinion by Chief Justice Roberts, the Court wrote that Minton's patent claim was, indeed, hypothetical--a case within a case--and that the state court's ruling on it (as part of the malpractice case) wouldn't have had any significant national impact.  The ruling was based on the three factors in Grable & Sons Metal Products v. Darue Engineering (2005).  That case said that when federal law didn't actually create the cause of action (as here, because Minton's claim was based on state malpractice law), the case can "aris[e] under" federal patent law only if it "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities."  The Court ruled that Minton's case didn't satisfy the "substantial" part of that test, because the patent question was merely hypothetical and wouldn't have any significant national impact.

SDS

February 21, 2013 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Can States Limit Government Information to Their Own Citizens?

The Supreme court heard oral arguments yesterday in McBurney v. Young, a case testing whether a state's freedom of information law, or FOIA, can limit access to government information to its own citizens consistent with the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause.  (Together these provisions restrict states in discriminating against out-of-staters in the exercise of fundamental rights or important economic interests, or in interstate commerce.)  The case was brought by two out-of-staters against Virginia after the state denied them access to records related to the state's enforcement of a child support order and state property records collected for clients as part of a business.  Virginia is one of only three states that restricts its FOIA records to in-staters.

The case is tough, because it's not obvious that Virginia's restriction is a restriction on interstate commerce (in violation of the Dormant Commerce Clause), and it's not obvious that the access that the petitioners seek is the kind of right that they, as out-of-staters, should enjoy with respect to Virginia.

The questions from the bench went right to these points.  The Court was concerned about whether Virginia's restriction was, in fact, a restriction on commerce,  or whether it was merely a law, not a commercial regulation, that had at most an incidental effect on interstate commerce.  (The Dormant Commerce Clause points go to the property-records seeker, not the child-support seeker.)  In other words: does the Dormant Commerce Clause even apply, given that this may not be a regulation of commerce?

Justices were also concerned about the magnitude of the effect, on both sides.  As to the petitioners, they wondered why the cost to the petitioner wasn't negligible.  After all, any out-of-stater could simply hire an in-stater for a nominal fee to file their request and thus dodge the restriction.  As to the state, they wondered why the cost to the state in providing equal access to its records was significant.  The burden of addition requests from out-of-staters didn't seem to be much.

Finally the Justices wondered whether Virginia shouldn't be allowed to restrict access to its records, given that its law is designed to provide access to government information to ensure good government--a concern that applies uniquely to Virginians.  On this point, several Justices compared the right to access to the right to vote, and noted that out-of-staters don't get it.  In short: Shouldn't Virginia be able to keep its records to its own state citizens?  The question goes at least in part to the purpose of Virginia's FOIA--to provide information on governance (as the state would have it), or to restrict information in restraint of free trade (as the petitioner argued).

The parties didn't provide terrific answers to any of these questions.  But counsel for the petitioner did note that the challenge was as applied, not facial.  This could allow the Court to rule narrowly in favor of this individual, without overturning the restriction as to anyone else.  But even that result seems likely only if the Court can get over two threshold problems.  First, the restriction is not a direct discriminatory regulation of interstate commerce (even if it may have an indirect effect on interstate commerce in this case).  Next, Virginia is certainly able to restrict some of its state functions to its own citizens.  The question for the Court: Is this one of them?

SDS

February 21, 2013 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Privileges and Immunities, Privileges and Immunities: Article IV | Permalink | Comments (0) | TrackBack (0)

A Drone Court . . . in the Executive Branch?

While many continue talking about a drone court in the judicial branch, Neal Katyal wrote in the NYT in favor of a drone court in the executive branch.  Katyal argues that an executive tribunal comprised of national security experts, with congressional oversight, is a better tailored way to ensure accountability in the administration's use of drone strikes for targeted killings.  The proposal splits the difference--or takes the best of both approaches--between the administration's current policy (which, it says, includes an internal executive branch review by experts, but with no independent oversight) and a full-fledged drone court in the judicial branch.

According to supporters, the drone court would provide a check to the administration's use of drones for targeted killing of Americans overseas, in the spirit of the FISA court.  But ideas so far locate the court in the judiciary.  Katyal sees a problem with that:

There are many reasons a drone court composed of generalist federal judges will not work.  They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact,  not beforehand.

But putting oversight authority in the executive branch, staffed by experts, would solve that problem.  And Katyal says that an executive branch "court" could still be subject to a check--by Congress:

The adjudicator would be a panel of the president's most senior national security advisers, who would issue decisions in writing if at all possible.  Those decisions would later be given to the Congressional intelligence committees for review.  Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

As to explaining to Congress--and shifting gears just slightly--it's now widely reported that the White House is refusing to disclose DOJ memos justifying its targeted killing program.  Instead, to gain bi-partisan support for John Brennan to lead the CIA, the administration is negotiating with Republicans to provide more information on the attacks in Benghazi in order to gain their support for Brennan.

SDS

February 21, 2013 in Congressional Authority, Courts and Judging, News, Procedural Due Process, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Daily Read: Deirdre Bowen on DOMA and Empiricism

Does the Defense of Marriage Act (DOMA) accomplish the purpose of defending opposite-sex marriage?  This question, or at least some version of it, is at the heart of the Supreme Court's consideration of United States v. Windsor, as well as of Hollingsworth v. Perry to the extent that Prop 8 is considered a state DOMA.

DbowenIn a new article, I Wanna Marry You: An Empirical Analysis of the Irrelevance and Distraction of DOMAs, available in draft on ssrn, LawProf Deirdre Bowen (pictured) argues that the numbers simply don't add up to providing support for the proposition. 

As her central task, Bowen takes as her comparators states with DOMAs, including constitutional amendments and statutes,  and states without DOMAs  and examines their marriage and divorce rates from 1999-2010 to discover whether DOMA correlates with marital stability and strength.   Her analysis "suggests that DOMA states do not fare any better than non-DOMA states in terms of the strengthening  marriage" and in fact, "DOMA states tend to have lower marriage rates, larger declines in the trend towards marriage, and greater divorce rates."

Her empirical query answered, Bowen the contends that not only is DOMA irrelevant, it serves as a distraction from the real threats that certain economic and social policies pose to family stability, especially with regards to children.  Whatever the Court decides, she implies, will not be sufficient to solve the problem of family volatility.

RR

February 21, 2013 in Equal Protection, Family, Federalism, Gender, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2013

Ninth Circuit Allows Prisoner Wiccan Claim to Proceed

In its opinion in Hartmann v. California Department of Corrections and Rehabilitation (CDCR), a panel of the Ninth Circuit reversed in part a district judge's dismissal on a complaint by prisoners' regarding the availability of Wiccan paid-chaplain positions. 

Wiccan SymbolThe operative policy maintained paid full-time and part-time chaplain positions only for adherents of five faiths: Catholic, Jewish, Muslim, Native American, and Protestant.  At the heart of the plaintiffs' claims was the allegation that there are more Wiccan prisoners at the women's prison than prisoners of the other faiths.

Interestingly, the plaintiffs did not prevail on their Free Exercise claim under the First Amendment.  Affirming the district judge, the Ninth Circuit panel wrote that even accepting the allegations as true,

while Plaintiffs may be better able to exercise their religious beliefs with the assistance of a paid full-time Wiccan chaplain, it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice. . . . The Free Exercise Clause does not require prison administration to provide Plaintiffs with more than that which they are currently receiving—i.e., the services of staff chaplains and a volunteer Wiccan chaplain.

On the other hand, the CDRC's choice to provide paid chaplains for five more established religions risks an Establishment Clause violation.  The panel, assuming again that the allegations were true, held that the  prison administration created staff chaplain positions for five conventional faiths, "but fails to employ any neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources used in accommodating inmates’ religious exercise needs."  the panel provided some guidance to the lower court (and counsel):  at a minimum, a court would have to ascertain whether paid staff chaplains work only at the women's prison or are required to travel to other prisons, jails, and correction facilities in the State and there could be a survey of inmate religious affiliation in the women's prison population and the broader CDCR prison population.

The panel also considered the California constitutional claims as well as the RLUIPA, equal protection, and the proper defendants.  But the case is noteworthy for its illustration of the relationship between Free Exercise and Establishment Clause challenges.

RR
[image: Wiccan symbol via]

February 20, 2013 in Establishment Clause, First Amendment, Free Exercise Clause, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)