January 4, 2013
President Obama's Signing Statement on NDAA
President Obama signed the National Defense Authorization Act for FY 2013 this week and, just as he did on last year's NDAA, issued a signing statement objecting to several provisions on separation-of-powers grounds. In characteristic language, the President said that he will implement those provisions "to avoid a constitutional conflict." This means, largely, that the administration will ignore them. But it's unlikely that the administration will act contrary to all of them.
Perhaps the most notable provisions restrict the President's use of funds to transfer detainees out of Guantanamo Bay--either to the U.S. for criminal trials in regular Article III courts, or to other countries--or to house detainees in the U.S. Last year's NDAA also contained similar restrictions. These provisions--Sections 1022, 1027, and 1028--are designed to prevent the President from closing Guantanamo and detaining suspected terrorists in the United States; they effectively foiled the President's plans last year to close Guantanamo.
But another provision, Section 1025, new this year, similarly restricts the President's use of funds to transfer detainees out of the detention facility in Parwan, Afghanistan. The President wrote,
That facility is located within the territory of a foreign sovereign in the midst of an armed conflict. Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by Members of Congress. Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities.
The President also objected to provisions interfering with his authority to conduct foreign relations and supervise the executive branch. As to the latter, Sections 827 and 828 enhance whistleblower protection for executive branch contractors. The President wrote, "I will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."
Section 1034 requires the President to "transmit to the congressional defense committees a report by the Commander of the United States Strategic Command, without change, detailing whether the recommended reduction would create a strategic imbalance or degrade deterrence and extended deterrence between the total number of nuclear weapons of the United States and the total number of nuclear weapons of the Russian Federation." President Obama wrote, "section 1034 would require a subordinate to submit materials directly to the Congress without change, and thereby obstructs the traditional chain of command."
Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion
In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.
But who is Jennie Linn McCormack? And how common is procuring abortion "medications" via the internet?
Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").
Calhoun also contextualizes McCormack's situation:
Determining how many American women have had home abortions is
exceedingly difficult: The Centers for Disease Control and Prevention
does not track illegal abortions. There is no blood test for drugs like
Cytotec, and so such an abortion is indistinguishable from a natural
miscarriage, even to a doctor. However, the proliferation of online
dispensers suggests a rising demand. There are thousands of websites
selling Cytotec for as little as $45 to $75 (compared with $300 to $800
for a legal medicated abortion in a clinic). Some claim to offer the
harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or
aspirin, or nothing at all. (Possible sources for the drugs include
Mexico, where Cytotec is available over the counter, or even the United
States, since it’s also prescribed here as an ulcer medication.)
The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.
Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.
January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack
NYC Bar Event on 40th Anniversary of Roe v. WadeThe Fortieth Anniversary of the United States Supreme Court's Landmark Decision, Roe V. Wade
Monday, January 14, 2013 6:30 pm-8:00 pm
2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.
Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School
LOUISE MELLING, Director, ACLU Center for Liberty
RUTHANN ROBSON, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights
Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair
More information here.
ConLaw at AALS: Looking Towards Fisher
In 1973, the Court held in Rodriguez that there was no fundamental right to education. Plaintiffs alleged that substantial disparities in educational opportunity violated the Constitution. The Court found the Texas elementary and secondary school finance system constitutional because it was rationally related to advancing local control of education; the Court hesitated to second guess the Texas legislature in light of federalism principles and concerns about judicial competency to deal with school finance systems.
The first panel will focus on the legacy of Rodriguez and how the law can address educational disparities in elementary and secondary education. Panelists also will discuss the effect of limits on use of race-conscious programs under the 2007 Parents Involved decision, and will consider the implications of the grant of review in Fisher.In 1978, a deeply fractured Court decided Bakke. Only one paragraph of Justice Powell’s pivotal opinion was joined by four other justices; it held that a “properly devised admissions program” that took race into account could be constitutional. He envisioned a flexible, individualized program that would provide the educational benefits of a diverse class. In 2003, the Court in Grutter held that diversity could be a compelling interest; the Court upheld Michigan Law School’s program, even as it held (in Gratz) that Michigan’s more mechanical undergraduate affirmative action program violated equal protectio
The second panel will consider the legacy of Bakke and discuss how the Court should decide Fisher. Is racial diversity a compelling interest? What is the role of empirical evidence? What do the empirical studies tell us about the benefits or harms of affirmative action? Diversity may provide better learning outcomes for all students (or for certain students), better preparation of students for a diverse world, and better social results due to formation of a diverse group of leaders. Which potential benefits “count”? How can a program be narrowly tailored to advance the interest in educational diversity?
Kevin D. Brown, Indiana University Maurer School of Law
Speaker: Erwin Chemerinsky, University of California, Irvine School of Law
Speaker from a Call for Papers: Paul Horwitz, The University of Alabama School of Law
Speaker: Jennifer Mason McAward, Notre Dame Law School
Speaker from a Call for Papers: Eboni S. Nelson, University of South Carolina School of Law
Speaker: Angela I. Onwuachi-Willig, University of Iowa College of Law
Speaker: Michael A. Rebell, Columbia University School of Law
Co-Moderator: Kimberly Jenkins Robinson, The University of Richmond School of Law
Speaker: Richard H. Sander, University of California, Los Angeles School of Law
Co-Moderator: Mark S. Scarberry, Pepperdine University School of Law
More information here.
January 3, 2013
Daily Read: SCOTUS Website on DOMA and Proposition 8
The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act and California’s Proposition 8 cases," or "DOMPRP8."
The disclaimer is worth a look:
Disclaimer: We have provided a link to this site because it has information that may be of interest to our users. The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.
Second Circuit on Middle Finger
Although the Second Circuit panel opinion in Swartz v. Insogna does not refer to the First Amendment, the court implicitly relies on free expression principles to reverse the district judge and allow the plaintiffs' civil rights action against two law enforcement officers to proceed.
As Judge Jon Newman, writing the unanimous opinion, explained, the case began as the result of an "irate automobile passenger's act of 'giving the finger,' a gesture of insult known for centuries, to a policeman," prompted by the officer's use of a radar device. Although the plaintiffs' car was not speeding, the officer followed the car and initiated a "traffic stop." Mr. Swartz was subsequently arrested for disorderly conduct (seemingly because of a statement describing himself in unflattering terms) and made three court appearances before the charges were ultimately dismissed on speedy trial grounds.
At issue was whether the original stop was reasonable under the Fourth Amendment. But underlying this determination depended on the meaning of the "middle finger" expression. As Judge Newman wrote:
Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted [Officer] Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.
Judge Newman cites LawProf Ira Robbin's wonderful 2008 article, Digitus Impudicus: The Middle Finger and the Law, published in the UC Davis Law Review and available on ssrn. While the citation is to Robbins' discussion of the first recorded use of the gesture in the United States in 1886 (hint: think baseball), Judge Newman's opinion does seem influenced by Robbins' article, which extensively discusses the First Amendment aspects of the gesture and their relationship to criminal justice.
January 2, 2013
As the Senate convenes today, and just a week after Judge Sullivan dismissed a legal challenge to the filibuster--there's talk once again of filibuster reform. We posted on similar talk two years ago, at the start of the 112th Congress, with links to other resources.
The Hill reports that Majority Leader Reid will recess the Senate at the end of today's session, extending the first day of the session until later this month, when the body reconvenes. This will keep the "constitutional option" on the table and allow the Senate to pass filibuster reform with a bare majority. (Filibuster reform is made more difficult, because a Senator could filibuster a bill to change the filibuster rule itself--requiring a super-majority to change the filibuster. But the Senate can dodge the super-majority requirement by enacting filibuster reform on the first day of the legislative session--the day on which the body re-adopts its own rules, using default parliamentary majority rule.) The threat of the option could inspire compromise.
According to the report, the Levin-McCain plan will be the starting point for negotiations on reform. But there are still strong advocates in the Senate for the talking filibuster.
Judge Dismisses FOIA Request for Legal Justification of Targeted Killings
Judge McMahon (SDNY) ruled Wednesday in New York Times Co. v. U.S. Dep't of Justice that the government need not disclose its legal justification for targeted killings in response to the plaintiffs' FOIA requests. The ruling means that any OLC memo providing a legal justification for targeted killings (or any other government-issued legal justification) will remain under wraps unless and until the ruling is successfully appealed.
The case involves FOIA requests by the New York Times and Charlie Savage and Scott Shane, and the ACLU, for the government's legal justification for its targeted killing program--in particular, any OLC memos outlining the legal justification. We covered the Times's complaint here; we covered the ACLU's complaint here.
The court held that FOIA did not compel the disclosure of any government legal analysis of the program, but not before outlining in some detail why "there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive . . . ." Op. at 17. The court also noted the troublesome nature of its holding:
However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules--a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with out Constitution and laws, while keeping the reasons for their conclusions a secret.
Op. at 3.
In this lengthy opinion, Judge McMahon also surveys the several statements by Administration officials on the legality of targeted killing, in order to address (and reject) the plaintiffs' waiver arguments.
The court declined in camera review of withheld documents (in order to evaluate the government's claims under Exemptions 1 and 3), concluding that it didn't need in camera review to fully evaluate Exemptions 1 and 3, because Exemption 5 applied. (Exemption 5 exempts disclosure of inter- or intra-agency documents that wouldn't be available to a party in litigation. The government argued, and the court agreed, that the requested documents were covered by attorney-client and deliberative process privileges.)
The court granted the government's motion for summary judgment in full, "except to the extent of permitting the DoD to submit a supplemental and more fulsome justification for why the deliberative process privilege applies to two Unclassified Memos on its Vaugh Index." Op. at 68.
Daily Read: Seidman on the Constitution as Bondage
We are used to speaking about the Constitution as a "binding document" and a less used to thinking about it as bondage. Thus, ConLawProf Louis Michael Seidman's op-ed in the NYT entitled "Let's Give Up on the Constitution" has been causing a bit of a stir, especially among ConLaw students and some profs.
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
Yet this seems to be more of a critique of originalism than constitutionalism. And interestingly, Seidman appeals to originalism to support his ultimate argument:
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.
Seidman's new book, Constitutional Disobedience, will presumably expand these ideas further. But for today, the op-ed is an interesting read.
January 1, 2013
150th Anniversary of the Emancipation Proclamation
Here's the transcription from the National Archives:
The Emancipation ProclamationWhereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:
"That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
"That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States."
Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:
Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.
And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.
And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.
And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.
And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.
In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.
By the President: ABRAHAM LINCOLN
WILLIAM H. SEWARD, Secretary of State.
[pages of proclamation via]
December 31, 2012
No Standing to Challenge President's NLRB Recess Appointments
The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB. The ruling means that this challenge to the recess appointments is dismissed. We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.
The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities. (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.) Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors. They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections. The petitioners did not seek a refund for themselves, because they renewed their objections every year.
The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.
While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum. The NLRB later denied the petitioners' motion for reconsideration.
The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid. They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress). They also said that the Senate didn't consider itself in recess when President Obama made the appointments. (It was in pro forma sessions.)
The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits. The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal. In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.
The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.
December 31, 2012 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack