Friday, May 31, 2013

Daily Read: Angela Onwuachi-Willig on Inter-Racial Love and Marriage

While for many Conlawprofs Loving v. Virginia is the "face" of love and marriage across racial divides, looking both backward and forward from the 1967 case can add depth to teaching and scholarship about the issue.  9780300166828(And if it seems not to be an issue any longer, a quick look at the "controversy" caused by a cereal advertisement featuring an interracial couple and their child is worth considering).

Professor Angela Onwuachi-Willig's new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, just published by Yale University Press, provides that depth.

Her exploration focuses on Rhinelander v. Rhinelander, a case that did not involve a constitutional issue, except to the extent that racial categorizations always implicate issues of constitutionalism and equality. As Onwuachi-Willig describes in a piece in the UC Davis Law Review,

Alice Beatrice Jones was a working-class woman, who met Leonard Kip Rhinelander, a wealthy white male descendant of the Huguenots and heir to millions of dollars, in the fall of 1921. . . . [They married in a private ceremony and] Just two weeks later, on November 26, 1924, Leonard filed for annulment of his marriage to Alice. He argued that Alice had lied to him about her race. Leonard claimed that Alice had committed fraud that made their marriage void by telling him that she was white and by failing to inform him that she was of “colored blood.”

Rather than litigate her whiteness as many expected, she argued that he knew her racial status. 

 The trial of the Rhinelanders proved to be shocking on many fronts. It involved racy love letters, tales of pre-marital lust and sex, and the exhibition of Alice’s breasts, legs, and arms in the courtroom to prove that Leonard, who had seen her naked before marriage, would have known that she was colored at the time of their nuptials. What was most scandalous about the Rhinelander case, however,  was the trial’s end. The jury returned a verdict for Alice, determining that Leonard knew her racial background before marriage yet married her anyway. 

Onwuachi-Willig's book also provides contemporary arguments that current law fails to protect interracial couples, especially given the privileges that continue to be accorded on the basis of marriage.

As we wait for both Fisher v. UT and the same-sex marriage cases of Perry and Windsor, or as we contemplate their meanings once the opinions are rendered, Onwuachi-Willig's book is an important and pleasurable read.

RR

 

May 31, 2013 in Books, Family, Fourteenth Amendment, Gender, History, Race, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tax-Exempt Lawsuits Challenge Constitutionality of IRS Actions

The IRS scandal caused by allegations that certain groups were highlighted for extra scrutiny regarding their tax-exempt status application has spawned several complaints filed in federal court alleging violations of the First Amendment and Fifth Amendment.

Paul Caron over at Tax Prof Blog has been keeping tabs on the scandal including linking to the developing news items.  The scandal started with a report issued  by the Treasury Inspector General for Tax Administration entitled "Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review." 

Underlying the controversy is the application of  26 U.S.C. § 501(c), governing organizations that shall be exempt from taxation.

Subsection (c) (3) includes:

Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

(emphasis added).

Subsection (c) (4) includes:

Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.

The extent to which such tax exempt organizations may engage in political activities and whether they must be "exclusively"  - - - or in contrast "primarily" - - - for the promotion of social welfare is subject to some controversy.  For example, the group Citizens for Responsibility and Ethics in Washington has petitioned for clarifying rule (or change in rule) from the IRS. 

800px-IRS_Building

 

Nevertheless, the allegations contend that IRS personnel subjected certain organizations to special scrutiny, seeking more documentation and causing significant delays.  For example, the complaint in Norcal Tea Party Patriots v. IRS, a class action filed in the Southern District of Ohio, where the Cincinnati office is located, alleges:

 In sum, because of their political viewpoints, conservative groups were subjected to harassment, intimidation, delay, discrimination, expense, intrusiveness, and embarrassment all as a part of a scheme by IRS agents and officers John Doe 1 -100 to suppress their political activity and punish their political views.

In another lawsuit filed in the District of Columbia, Linchpins of Liberty v. United States, the more expertly crafted complaint likewise alleges viewpoint discrimination in violation of the First Amendment as well as equal protection violations, in addition to statutory claims.

Given the government's own report, it will be interesting to seethe government's responses to the complaints.

RR

May 31, 2013 in Current Affairs, Equal Protection, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 30, 2013

Eleventh Circuit on Florida's Mandatory Drug Testing of Public Employees

An Eleventh Circuit panel has rendered its opinion in AFCME v. Scott regarding the Executive Order of controversial Florida Governor Rick Scott requiring drug testing of all prospective state employees and random testing of all state employees.   The panel held that the Executive Order  "almost certainly sweeps far too broadly and hence runs afoul of the Fourth Amendment in many of its applications." 

But it also held that last year's opinion by Judge Ursula Ungaro of the Southern District of Florida that enjoined the Executive Order "also swept too broadly and captured both the policy’s constitutional applications and its unconstitutional ones." 

The gist of the panel's 61 page opinion is that Supreme Court cases such as Skinner v. Ry. Labor Execs.’ Ass’n (1989) hold that some categories of state employees may be drug tested without individualized suspicion and that a court must "balance the governmental interests in a suspicionless search against each particular job category’s expectation of privacy."  

Note that this is distinct from situation seeking mandatory drug testing of welfare recipients - - - an injunction against which the Eleventh Circuit affirmed earlier this year.

800px-Martin_Johnson_Heade_-_Florida_Sunrise_-_Google_Art_Project
The complexities of the panel's opinion revolve around the procedures for accomplishing this balancing.  The original complaint as well as the appellate court's role were amply discussed by the panel. 

But the panel also spent considerable space on the State's "bold" argument that the Executive Order could "justify suspicionless drug testing of all 85,000 government employees regardless of the nature of their specific job functions."  The panel was "unpersuaded," and detailed its rejections of the State's arguments.

Thus, the panel gave clear guidelines to the district judge, remanding the case for a more limited injunction against the "sweeping" Executive Order. 

RR
[image: "Florida Sunrise" via]

 

May 30, 2013 in Courts and Judging, Fourth Amendment, Opinion Analysis, Privacy | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 29, 2013

Colorado Supreme Court Upholds School Financing System

Reversing a lower court, the Colorado Supreme Court upheld the constitutionality of the state's financing of public schools in its opinion in State v. Lobato

The underlying problem at issue in the contentious case is exemplified by a chart that appears in one of the two dissenting opinions, demonstrating that "education funding in Colorado has been in steady decline" in recent decades:

Screen Shot 2013-05-29 at 2.01.35 PM

The majority of the state supreme court concluded:

The public school financing system enacted by the General Assembly complies with the Colorado Constitution. It is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education. Colo. Const. art. IX, § 2 (the “Education Clause”). It also affords local school districts control over locally-raised funds and therefore over “instruction in the public schools.” Colo. Const. art. IX, § 15 (the “Local Control Clause”).

The meaning of "thorough and uniform" in the state constitution was discussed by the majority through reference to dictionary definitions and limited precedent.  The court concluded it did not require equality, but only a rational relationship test.   Under this test, the plaintiffs did not "establish beyond a reasonable doubt that the system fails to pass constitutional muster." 

The majority's 26 page opinion was countered by more than 40 pages in the two dissenting opinions by Justices Bender and Hobbs (each joining in the other Justice's opinion).  These opinions argue that the majority "abdicates this court’s responsibility to give meaningful effect" to the state constitution's education clause and failed to guarentee that students receive their constitutional right to education.

Like so many other constitutional challenges to state educational systems, this one revolves around vague state constitutional provisions and legislative choices that many view as underfunding education on a state-wide basis.  Surely, this decision in Colorado will be contentious.

RR

 

May 29, 2013 in State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 28, 2013

White House Reacts to Republican Obstruction of Judicial Nominations

President Obama plans to simultaneously nominate three judges to the D.C. Circuit, reports the NYT and HuffPo.  The nominations would fill the three remaining vacancies on the 11-member court.  The reports come the week after the Senate voted 97-0 to approve the President's nomination of Deputy SG Sri Srinivasan--nearly a year after his nomination.  

The move is part of a strategy by Senate Democrats to highlight obstruction of judicial nominees by Senate Republicans.  Democrats hope that by putting up three nominations at once, Republicans will be less likely to foot-drag (because foot-dragging on three nominations, and not just one, would highlight Republicans' obstruction).  

Senate Republicans have reacted, calling the this an effort to "stack the court" (Senator McConnell's words).  According to the NYT, Senate Republicans are considering a proposal to eliminate the three empty seats on the court and move two of them to other circuits.

The measure, S. 699, sponsored by Senator Grassley, would eliminate the three seats from the D.C. Circuit, add one seat to the Second Circuit, and add one seat to the Eleventh Circuit.  If it could ever get out of the Senate, it would surely meet a veto.  

The NYT reports that some Democrats think that Republican overreaching on these nominations could bring enough public pressure to change Senate rules to prohibit filibusters on judicial nominations.

SDS

May 28, 2013 in Appointment and Removal Powers, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, May 25, 2013

District Judge Finds Sheriff Joe Arpaio's Office Engaged in Unconstitutional Racial Profiling

Screen Shot 2013-05-25 at 9.45.41 AMIn a 142 page opinion and order in Melendres v. Arpaio, United States District Judge G. Murray Snow found that the Maricopa County Sheriff's Office [MCSO] led by Sheriff Arpaio unconstitutionally relied upon "Mexican ancestry" in stopping and detaining persons in its jurisdiction.

Recall that Sheriff Arpaio is a controversial figure who has styled himself as America's "toughest sheriff" and whose policies such as shackling pregnant inmates giving birth and forcing male inmates to "wear pink" have been subject to constitutional challenge.

In the Melendres class action lawsuit, the district judge listed the issues as:

  • whether, and to what extent, the Fourth Amendment permits the MCSO to question, investigate, and/or detain Latino occupants of motor vehicles it suspects of being in the country without authorization when it has no basis to bring state charges against such persons;
  • whether the MCSO uses race as a factor, and, if so, to what extent it is permissible under the Fourth Amendment to use race as a factor in forming either reasonable suspicion or probable cause to detain a person for being present without authorization;
  •  whether the MCSO uses race as a factor, and if so, to what extent it is permissible under the equal protection clause of the Fourteenth Amendment to use race as a factor in making law enforcement decisions that affect Latino occupants of motor vehicles in Maricopa County;
  •  whether the MCSO prolongs traffic stops to investigate the status of vehicle occupants beyond the time permitted by the Fourth Amendment; and
  • whether being in this country without authorization provides sufficient reasonable suspicion or probable cause under the Fourth Amendment that a person is violating or conspiring to violate Arizona law related to immigration status.

The judge's extensive discussion of the trial and his findings of fact provide a detailed portrait of the MCSO's attempts to enforce immigration laws, including  its "LEAR" policy (Law Enforcement Agency Response in conjunction with federal immigration authorities), "saturation patrols,"  and mixed messages about the permissibility of the consideration of race or "Mexican ancestry." The opinion details the often rocky relationship between MCSO and federal ICE regarding immigration enforcement. 

Ultimately, Judge Snow concluded that that the MCSO's stated prohibition of "racial profiling" was limited to an exclusive reliance on race but allowed race to be a factor and did not strive to be race-neutral.  In keeping with this policy, the MCSO routinely relied upon race as a factor according to Judge Snow.  Such policies and practices violate both the Fourth Amendment and the Equal protection Clause of the Fourteenth Amendment.

The Judge entered a permanent injunction prohibiting MCSO from:

  • detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization,
  •  following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County;
  •  using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant;
  • using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization;
  • detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law;
  •  detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present;
  • detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

Judge Snow encouraged the parties to engage in further negotiations toward a settlement for implementing the injunction and included references to other settlements.  However, Sheriff Arpaio has reportedly already proclaimed his intention to appeal.

RR

 

May 25, 2013 in Equal Protection, Federalism, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race, Travel | Permalink | Comments (0) | TrackBack (0)

Thursday, May 23, 2013

President Obama on Drones, Guantanamo

President Obama spoke out today on his administration's use of drone attacks and argued (again) for closing the detention facility at Guantanamo Bay in a speech that looked to wind down the war on terror.  Politico reports here.

President Obama's speech came the same day as the administration released a "fact sheet" on U.S. policy standards and procedures for drone strikes and other hostile actions against terrorist suspects outside the United States and areas of active hostilities.  According to the document, there's a preference for capture (and other reasonable alternatives) over killing, but still the document sets out standards for the use of lethal force:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.  It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

1. Near certainty that the terrorist target is present;

2. Near certainty that non-combatants will not be injured or killed;

3. An assessment that capture is not feasible at the time of the operation;

4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

5. An assessment that no other reasonable alternatives exist to effectively address the threat to the U.S. person.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally--and on the way in which the United States can use force.  The United States respects national sovereignty and international law.

The "fact sheet" makes some changes in emphasis and language, but seems to basically leave in place the substance of the three-part test outlined earlier this year in the White Paper.  The "fact sheet" emphasizes rule-of-law principles and broad government decisionmaking and oversight over hostilities, but it does not specifically address or define "imminence" or the process by which the administration will designate a person a target.  (Recall that the White Paper looked specifically at the question when lethal force could be used against a U.S. citizen who is a senior leader of al-Qa'ida or an associated force; the "fact sheet" sweeps in a broader class of potential targets.  Recall, too, that the White Paper defined imminence rather broadly, and it counterbalanced a target's interest in life with the U.S. interest in forestalling attacks on other Americans, under Mathews v. Eldridge.)  The upshot: only time will tell whether the Fact Sheet represents a real change in the way the administration actually executes drone attacks.  

SDS

May 23, 2013 in Executive Authority, Fundamental Rights, News, Procedural Due Process, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, May 20, 2013

Marcia Coyle on the Roberts Court

Marcia Coyle, Chief Washington Correspondent for the National Law Journal, was kind enough to talk with me last week about her new book, The Roberts Court: The Struggle for the Constitution

Roberts Court

The book tells the full stories (including the fascinating back-stories) of four landmark and defining cases for the early Roberts Court--on race in schools (Parents Involved), guns (Heller), money in elections (Citizens United), and health care (the ACA cases)--and argues that these cases are at the center of a struggle for the Constitution in this new and evolving Court.  

Here's the audio, about 30 minutes:

 

Coyle Interview

SDS

May 20, 2013 in Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Third Circuit Invalidates President Obama's NLRB Recess Appointment

A divided three-judge panel of the Third Circuit last week invalidated President Obama's recess appointment of Craig Becker as a member of the National Labor Relations Board.  The ruling, National Labor Relations Board v. New Vista Nursing and Rehabilitation, marks the second time a federal appeals court invalidated President Obama's "intrasession" recess appointments.  The first came earlier this year from the D.C. Circuit, in the Noel Canning case.  We posted on that case when it came down, and more recently when the government filed for cert. review at the Supreme Court.

The Third Circuit, like the D.C. Circuit before it, ruled that "the Recess of the Senate" in the Recess Appointments Clause refers only to the period between sessions of the Senate, or intersession breaks, and not breaks while the Senate is in session, or intrasession breaks.  Because President Obama appointed Becker while the Senate was holding pro forma sessions every three or four days--during intrasession breaks--the court said that Becker's appointment was invalid.  And because Becker's appointment was invalid, the NLRB lacked a quorum to issue a bargaining order to a New Jersey nursing facility that was at the center of the dispute.

Judge Greenaway, Jr., wrote a lengthy dissent, stating that "[t]he Majority's rationale undoes an appointments process that has successfully operated within our separation of powers regime for over 220 years."

As we said, the government has already filed its cert. petition in the Noel Canning case.  Now with this ruling, the Court is all but certain to take the question up and issue a final ruling on "intrasession" recess appointments.

SDS

May 20, 2013 in Appointment and Removal Powers, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, May 19, 2013

AP CEO Gary Pruitt Explains Why Justice Probe Violates First Amendment

Associated Press CEO (and former First Amendment lawyer for McClatchy newspapers) Gary Pruitt gave his first television interview today to Bob Schieffer on Face the Nation and blasted the Justice Department seizure of AP phone records as violating the First Amendment.

 

Pruitt's complaints grow out of the Justice Department secret subpoena for phone records of 20 AP phone lines as part of the Department's investigation into an AP article that reported that the CIA foiled a terrorist plot to bomb a US airliner.  The Department obtained the records directly from the phone company, without prior notice to AP.

Pruitt argued that the Department's efforts swept far too broadly and violated its own rules relating to phone records.  

Pruitt's appearance follows his May 13, 2013, letter to AG Holder, objecting to the Department's investigation.  Deputy AG James Cole wrote back on May 14, 2013, arguing that the Department's subpoenas were sufficiently narrow.

Glenn Greenwald wrote about the issue last week in the Guardian (with links to others raising objections).  The Washington Post just posted a story on aggressive government tactics in leak investigations, focusing on the Stephen Jin-Woo Kim case.

SDS

May 19, 2013 in Association, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 16, 2013

Tsesis on the History of the Declaration of Independence

Prof. Alex Tsesis (Loyola Chicago) joined me on Thursday for a talk on his book For Liberty and Equality: The Life and Times of the Declaration of Independence (Oxford 2012).  This was a terrific read; I highly recommend it.  

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But first listen to him talk about it.  Here's the audio of our chat (about 20 minutes):

Tsesis Interview May 16

SDS

May 16, 2013 in History, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Senate Judiciary Approves Srinivasan for D.C. Circuit

The Senate Judiciary Committee today unanimously approved Deputy Solicitor General Sri Srinivasan for a slot on the D.C. Circuit.  WaPo reports here.  We previously posted here, with links to backgrounds and profiles.

SDS

May 16, 2013 in Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Federal Complaint for Unconstitutional Sex Assignment Surgery on Infant

400px-3D_gender_symbol.svgThe surgical "assignment" of sex/gender to an infant born with "ambiguous" genitals is a problem that has garnered much attention.

The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery.  A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.

But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).  M.C., now 8 years old, brings the case through his adoptive parents. 

The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990).  The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds. 

The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery.  Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue. 

An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.

Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:

 

 This is definitely a case to watch.

RR
[image via]

May 16, 2013 in Cases and Case Materials, Comparative Constitutionalism, Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Procedural Due Process, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 15, 2013

The New Yorker, Anonymity, and Confidential Sources

Screen Shot 2013-05-15 at 7.53.46 PMWhat if the reporters' confidential sources were unknown even to the reporter?  Might this solve the problems that the Court struggled with more than 40 years ago in Branzburg v. Hayes?

The New Yorker has introduced a technological attempt to insulate the source and the reporter.  As The New Yorker explains its new concept, called "Strongbox" :

as it’s set up, even we won’t be able to figure out where files sent to us come from. If anyone asks us, we won’t be able to tell them.

A fuller explanation in the article by Kevin Poulson begins: "Aaron Swartz was not yet a legend when, almost two years ago, I asked him to build an open-source, anonymous in-box.

Of course, the government's technological abilities have also progressed since the grand jury inquiry of Branzburg.

RR

 

May 15, 2013 in First Amendment, News | Permalink | Comments (0) | TrackBack (0)

Force-Feeding at Guantanamo

The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay.  According to the ACLU, 29 detainees are currently being force-fed.  We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.

The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding.  (The earlier SOP is here.)  Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.

Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:

Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment.  It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location."  Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994.  The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992.  Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.

While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too.  For example, force-feeding may infringe on hunger-striking detainees' free speech.  But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts.  There's also the right to refuse medical treatment.  As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result."  But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.

Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case.  Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006.  That provision says,

Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them.  Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.

SDS

May 15, 2013 in Courts and Judging, Current Affairs, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Medical Decisions, News, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)

Daily Read: First Amendment Institutions by Paul Horwitz

ConLawProf Paul Horwitz's new book, First Amendment Institutions seeks to develop the conversation about reorienting First Amendment doctrine towards institutionalism. 

Horwitz

Most ConLawProfs would agree that First Amendment doctrine suffers from incoherence, but fewer may agree that institutionalism is the solution, and even those who do favor institutionalism may differ on their selection of the institutions deserving deference.

But for anyone teaching or writing in the First Amendment, Horwitz's book deserves a place on a serious summer reading list.  My longer review appears in Law and Politics Book Review.

RR

May 15, 2013 in Books, Establishment Clause, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, May 13, 2013

Court Says Plaintiff Can Bring State Suit for Illegal Sale of His Car

The Supreme Court ruled today in Dan's City Used Cars, Inc. v. Pelkey that federal law does not preempt a plaintiff's state law claim against a towing company for the illegal sale of his car.  The ruling affirms the New Hampshire Supreme Court's ruling in favor of the plaintiff and settles a split among state high courts on the question.  Otherwise, the ruling doesn't break any new ground, and it's not a particular surprise.

The case arose when Dan's City towed Pelkey's car from his landlord's parking lot and later traded it away without compensating Pelkey.  (Pelkey was suffering with a serious medical condition for which he was later hospitalized, and thus left his car in the parking lot during a snow--a towing offense under the landlord's rules.)  Pelkey sued for wrongful sale (but not wrongful towing) under state law.  The lower state court said that the Federal Aviation Administration Authorization Act, FAAAA, preempted Pelkey's suit and dismissed the case.  (The FAAAA applies to motor carriers.)  The New Hampshire Supreme Court reversed, and this appeal followed.

The FAAAA preemption clause says,

[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.

In an opinion by Justice Ginsburg, the unanimous Supreme Court held that Pelkey's suit wasn't "with respect to the transportation of property," because it was based on the allegedly wrongful sale of his car after it was transported--that is, post-towing.  The Court said that this result is consistent with congressional purposes is enacting the FAAAA preemption clause.

SDS

May 13, 2013 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Thursday, May 9, 2013

Divided Sixth Circuit Panel Upholds Michigan's Public Act 53 Regulating Public School Union Dues Collection

A Sixth Circuit panel today upheld the constitutionality of Michigan's Public Act 53 in its opinion in Bailey v. Callaghan. 

Michigan’s Public Act 53, enacted in 2012, governs public school employee union dues.  It provides:

A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.

As the panel explained, "Thus, under the Act, unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues for them via payroll deductions." 

Central_School_Iron_River_MI_c_1909

The panel reversed the district court's grant of a preliminary injunction, holding that the challengers' First Amendment and Equal Protection claims were "without merit."

On the First Amendment claim, the panel held that the case was squarely controlled by the Supreme Court's 2009 decision in Ysursa v. Pocatello Educational Ass'n, and the distinctions urged by the challengers were inapposite.  Its summary exiled the dispute from First Amendment terrain:

So Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind. Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.

The Equal Protection argument was dispatched with even less fanfare:

The question here is whether there is any conceivable legitimate interest in support of this classification. We hold that there is: the Legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers. The plaintiffs’ equal-protection claim therefore fails.

Dissenting, Judge Jane Branstetter Stranch begins by noting that the "majority spills little ink" - - - the opinion is 5 pages - - - and then proceeds with a more robust analysis of the First Amendment challenge.  She takes seriously the viewpoint discrimination argument given the Michigan legislature's specific statement that the purpose of Act 53 was to put a "check on union power."  This type of viewpoint discrimination means that Ysursa does not control, and in fact "Ysursa expressly acknowledges the long-standing prohibition on viewpoint discrimination in the provision of government subsidies," although the Court held that because that law applied to all employers, there was no viewpoint discrimination. Instead, she relies on Citizens United to contend:

To the extent Act 53’s purpose is to cripple the school unions’ ability to raise funds for political speech because Michigan’s legislature finds that speech undesirable, it is plainly impermissible. Political speech, of course, is a core First Amendment activity that “must prevail against laws that would suppress it, whether by design or inadvertence.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010). And “restrictions distinguishing among different speakers, allowing speech by some but not others,” run afoul of the First Amendment precisely because they are “all too often simply a means to control content.” Id. at 898–99.

This doctrinal prohibition applies not only to laws that directly burden speech, but also to those that diminish the amount of speech by making it more difficult or expensive to speak. See, e.g., Citizens United, 130 S. Ct. at 897.

It does seem that Judge Stranch's dissent has the better argument, and definitely the more developed one. 

RR
[image: Central School Iron River Michigan, circa 1909, via]

May 9, 2013 in Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Larry Catá Backer on Chinese Constitutionalism

BackerWhat is Chinese constitutionalism?  Larry Catá Backer's new article, Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism, available on ssrn, not only provides answers to that query, but develops the topic in sophisticated and important ways.  As Backer (pictured right) notes, 

The Chinese constitutional system does not imitate those of other developed states, because it political ideology is grounded in Marxist Leninism which suggests a different relationship between the state, the people and the manner of exercising political and economic power, which over the course of nearly a century suggested what Western theorists generally viewed as the anti-constitutionalism of Soviet Stalinism and its variants.

20114183879195But Backer is not content with such simplistic dismissals.  Instead, exploring the arguments of Chinese LawProf Jiang Shigong (pictured left), Backer traces different strands of Chinese constitutionalism within the context of Chinese culture and society and their possibilities for development.  Backer notes that the "critical distinction for Jiang between Chinese and Western constitutionalism lies in the willingness to fold a Party-State system within notions of substantive constitutionalism—not just in terms of legitimacy but also in terms of providing a foundation for building a governmental apparatus that provides for its people in a way functionally equivalent to that in Western democracies."

For ConLaw comparativists, Backer's article is essential reading: it situates Chinese constitutionalism in global contexts and more importantly, evaluates its various aspects in comparison to each other.  For ConLawProfs who may not consider themselves comparativists, Backer's article may be even more essential.  Backer's exploration is theoretically sophisticated, nuanced, and guaranteed to enrich any reader's thinking about the role of any constitution in any nation, including the United States.

RR

May 9, 2013 in Comparative Constitutionalism, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 8, 2013

D.C. Circuit Strikes NLRB Notice-of-Rights Rule

A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights.  The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.

The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.

The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace.  Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA.  (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)

The rule says,

[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .

29 C.F.R. Sec. 104.202(a).  (Here's the single-page version of the notice poster.)  But the plaintiffs argued that this violated the NLRA and free speech.  The court agreed, concluding that the rule violated Section 8(a), which says:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."  

The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech.  Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.

The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities.  (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.)  The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.  

(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)

The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid.  But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.

SDS

May 8, 2013 in Appointment and Removal Powers, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)