March 8, 2013
Daily Read: Obama Signs VAWA
Apropos of International Women's Day today, President Obama's signing of the reauthorization of the Violence Against Women Act (VAWA) yesterday is the daily read, including the official remarks and the video below.
As the President's remarks reflect, the version of VAWA that passed Congress is notable because it includes protections for Native Americans (expanding tribal jurisdiction), for undocumented persons, and for persons in same-sex relationships.
And they are also notable for his shout-out to one of my former students, Sharon Stapel, for her work.
March 7, 2013
Idaho District Judge Holds Portions of State's Abortion Law Unconstitutional
In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.
Recall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional. McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.
However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation." The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding. Further, the judge noted that pregnancy is "capable of repetition yet evading review."
Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.
On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.
Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care. The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.
Additionally, the judge found unconstitutional the Idaho provisions banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act. He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point.
Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.
Administration Won't Use Domestic Drones to Kill Americans, After All
It turns out that the administration won't use drones to kill Americans on U.S. soil after all, according to White House Press Secretary Jay Carney earlier today. This seems a very strange thing to be relieved about, but this is the level of discussion after AG Eric Holder earlier this week suggested in a letter to Senator Rand Paul that there might be extraordinary circumstances when the White House could order such a strike. Senator Paul then engaged in a 13-hour talking filibuster, holding up a vote on John Brennan to head the CIA, in protest.
In response to a question whether "the president has authority to use a weaponized drone to kill an American not engaged in combat on American soil," Carney simply said "No." "The president has not and would not use drone strikes against American citizens on American soil," according to Carney.
Josh Gerstein at Politico posted the story here.
[Picture: Air Force]
"Racial Entitlement": Professor Scalia, then and now
Justice Antonin Scalia's remark during the oral arguments in Shelby County v. Holder last week characterizing the preclearance provision of the Voting Rights Act as a "racial entitlement" has garnered much attention, including "gasps" in the Supreme Court chambers itself.
Of course, the ability of Scalia's comments to provoke is not new: his statements in last year's oral arguments in Arizona v. United States regarding the constitutionality of SB1070 drew particular attention.
In the Shelby argument, Scalia described the Voting Rights Act provision and its reenactments as
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.
To what writings does Justice Scalia refer? ConLawProf Chad Flanders, in a news commentary that is itself garnering attention, suggests that Justice Scalia might be referencing Professor Scalia's own writings. Flanders points to Scalia's article, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race,” 1979 Wash. U. L. Rev. 147, available here.
Scalia's writing is not an article but rather published as a "Commentary" and obviously taken from his remarks on a panel at a Symposium entitled "The Quest for Equality." Scalia describes himself as the "anti-hero" of the panel: the other commentator was Herma Hill Kay and the main paper was by Harry T. Edwards. (Ruth Bader Ginsburg delivered the main paper on the next panel.) His subtitle is derived from Justice Blackmun's dissenting and concurring opinion in Regents of University of California v. Bakke, 438 U.S. 265, 407 (1978).
Scalia indeed does use the term "racial entitlement" in his remarks:
The affirmative action system now in place will produce the latter result because it is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist.
But of course, his rejection of "racial indebtedness" was clear in his 1995 concurring opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, in which the Court held an affirmative action policy unconstitutional. Scalia wrote then:
[image: caricature of Antonin Scalia by DonkeyHotey via]
Daily Read: Linda Greenhouse on Shelby and the Voting Rights Act
Linda Greenhouse's NYT "Opinionator" column is almost always worth a read.
But yesterday's column entitled "A Big New Power" is a must-read for anyone considering the Court's pending opinion in Shelby County v. Holder and the controversy surrounding Scalia's remarks during the oral argument.
Years from now, when the Supreme Court has come to its senses, justices then sitting will look back on the spring of 2013 in bewilderment. On what basis, they will wonder, did five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier “to enforce, by appropriate legislation” the right to equal protection and the right to vote.
Greenhouse admits she is forecasting the outcome, but her column makes that outcome seem less palatable.
March 6, 2013
Paul's Filibuster and the Administration's Domestic Drone Authority
Senator Rand Paul started a talking filibuster today on the Senate floor, holding up John Brennan's nomination to head the CIA. His problem? The administration's use of drones. In particular, a reply he received earlier this week from AG Holder in response to his question whether the government could use drones to target and kill U.S. citizens within the United States. Here's Holder's answer:
The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront. It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.
Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.
Ninth Circuit Grants Standing to Challenge California's Requirement for Resident Signature Gatherers for Ballot Qualification
California's Election Code, sections 8066 and 8451 require the persons who gather the signatures necessary to place a name on the ballot in an election to be residents of the political subdivision or district in which the voting is to occur. California uses the term "circulators" for the person who gathers the signatures and the term "nomination paper" for the document with the signatures, but the general scheme is a familiar one.
Indeed, recall the controversy in January 2012 over a First Amendment challenge by Republican candidates for President to the Virginia election provision that mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary. The Fourth Circuit rejected the challengers arguments on the basis of laches. Part of the candidates' argument for waiting was that they did not have standing until later in the process.
And the standing concern is a serious one.
But the Ninth Circuit's opinion in Libertarian Party of Los Angeles County v. Bowen today - - - reversing the district judge - - - held that a "concrete plan" to use circulators who do not live in the voting district, coupled with the clear intent of enforcement by California Secretary of State Bowen, is sufficient to confer standing.
In a footnote to this relatively brief opinion, the panel distinguished the Supreme Court’s February 26 decision in Clapper v. Amnesty International USA : "Unlike in Clapper, Plaintiffs’ fear of enforcement here is actual and well-founded and does not involve a 'highly attenuated chain of possibilities.' "
Thus, the question of whether states can impose residency requirements for those who gather signatures without violating the First Amendment is a live case or controversy in a California district court.
Daily Read: On Hugo Chavez
The United States edition of Rory Carroll's Comandante: Hugo Chavez's Venezuela will be released March 7 and it makes timely reading as Americans struggle to understand the legacy of Chavez including Venezuelan constitutional law. (Interestingly, the South African edition is subtitled "Inside the Revolutionary Court of Hugo Chavez.")
Carroll is a reporter for The Guardian and the reviews of the British edition stress the fine reporting and indicate this is a book worth reading. For example, in Literary Review: "Rory Carroll has written a well-considered and painfully fair epitaph for the Chávez regime" and in The Independent: "Rory Carroll is well positioned to provide a verdict. In good reporter fashion, he diligently tracks down his sources, turning up a colourful cast of red-shirted Chavista loyalists, bitter political opponents, and the everyday Venezuelans in between."
. . . and even more former Justice O'Connor, now with Jon Stewart on The Daily Show
The former Justice O'Connor seems to be a whirlwind publicity tour promoting her new book, following her interviews on Fresh Air and the Rachel Maddow Show with a two part interview with Jon Stewart on The Daily Show.
March 5, 2013
More O'Connor on Fresh Air Promoting her Book
O'Connor is promoting her new book, Out of Order: Stories from the History of the Supreme Court, reviewed in the NYT yesterday.
Update: more O'Connor here.
Daily Read: Former Justice O'Connor on the Rachel Maddow Show
Today's "read" is the video of former Justice O'Connor on "The Interview" segment of the Rachel Maddow Show. It raises ethics issues in an interesting way as well as gender in the Court and Bush v. Gore as not very "special" although also "important."
It starts at 5.35 below:
March 4, 2013
Ninth Circuit: Day Labor Provisions of SB 1070 Unconstitutional
Affirming the grant of a preliminary injunction a year ago, a panel of the Ninth Circuit has unanimously upheld Judge Susan Bolton's conclusion that the plaintiffs demonstrated a likelihood of success on the merits of their First Amendment challenge to SB1070's day labor provisions in its opinion in the case now styled as as Valle Del Sol v. Whiting.
The day labor provisions of SB1070, codified at Ariz. Rev. Stat. § 13-2928, provide:
A. It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
B. It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
The panel agreed with Judge Bolton that the day labor provisions regulate commercial speech and thus should be subject to the Central Hudson test, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980).
The panel also agreed that the day labor provisions were content-based:
On their face, the day labor provisions target one type of speech – day labor solicitation that impedes traffic – but say nothing about other types of roadside solicitation and nonsolicitation speech. They are therefore classic examples of content-based restrictions. Our conclusion is confirmed by the stated purpose of the provisions, their legislative history and the disproportionate sanctions they impose for traffic problems arising from day labor solicitation.
Such a conclusion brings the analysis under the Supreme Court's decision in Sorrell v. IMS Health, Inc., especially as to the fourth prong of Central Hudson. However, the Ninth Circuit disclaimed reliance upon Sorrell, concluding "that the day labor provisions are deficient under even the pre-Sorrell, arguably more government-friendly, precedent urged by Arizona." The panel decided to "defer extended discussion of Sorrell for a more appropriate case with a more fully developed factual record," and simply applied Central Hudson.
The panel's analysis is direct and classic, easily finding that the day labor provisions fail each of Central Hudson's prongs, including the fourth even without the addition of Sorrell's arguably heightened standard for a content-based restriction.
In affirming the grant of the preliminary injunction, the panel highlighted the First Amendment interests at stake and agreed with the district judge that there would be irreparable harm and that the equities tipped in favor of granting the injunction.
Seemingly, if Arizona wants to regulate traffic safety, it is going to have to do so without targeting First Amendment interests.
Daily Read: Toobin on Justice Ginsberg in New Yorker
Jeffrey Toobin's profile of Justice Ginsburg, entitled The Heavyweight, is behind a paywall at The New Yorker, but news outlets are already reporting some material, including Justice Ginsburg's plan not to retire this year (or next).
Toobin characterizes Ginsburg as "reserved, noting that there "is some irony in Ginsburg’s reputation for reserve, because she is, by far, the current Court’s most accomplished litigator. Before Chief Justice John G. Roberts, Jr., became a judge, he argued more cases than Ginsburg did before the Justices, but most of them were disputes of modest significance."
Worth a read - - - especially for those who like celebrity legal profiles.
The Constitutionality of Anti-Paparazzi Laws
You may have heard about California's so-called anti-paparazzi laws if you - - - or someone you know - - - is a Justin Bieber fan.
a) Notwithstanding any other provision of law, except as otherwise provided in subdivision (c) [providing for multiple penalties], any person who violates Section 21701[Interference with driver or mechanism] 21703 [Following too closely], or 23103[Reckless driving] with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than six months and by a fine of not more than two thousand five hundred dollars ($2,500).
It’s been well-publicized that one photographer was killed in a traffic accident while tracking Bieber’s car, and another photographer, Paul Raef, was prosecuted by the LA City Attorney pursuant to §40008 for conduct while tracking Beiber’s car. The trial judge in that case dismissed the charges under §40008 as violating the First Amendment; an appellate panel is reviewing the case but has expressed preliminary doubts that the section is unconstitutional, citing Cohen v. Cowles Media Co.
Over at Justia, Julie Hilden argues that "picking out the state of mind of the paparazzi alone for censure and punishment may be a fatal mistake by the statute’s drafters." Hilden also has some things to say about the role of the press, paparazzi, and celebrities themselves.
Hawai'i is also considering an anti-paparazzi law in part because of the considerable energies being spent by Steve Tyler (yes, of Aerosmith). Hawai'i HB 465 would create a civil cause of action and passed the Senate on March 1.
ConLawProfs looking for an interesting in-class exercise - - - or even exam problem - - - might find Justin Bieber, Steven Tyler, and any other local celebrities, worth a second look.