Friday, March 15, 2013

Daily Read: Geoffrey Stone on Bradley Manning

Save-Bradley-Manning-300x300On this week's WNYC show "On The Media," ConLawProf Geoffrey Stone talks about the Bradley Manning case.

Listen here:




Portions of the show examine "the ‘aiding the enemy’ charge the government has brought against Bradley Manning, the man who gave hundreds of thousands of classified documents to WikiLeaks," including an interview with Yocahi Benkler, whose New Republic article we profiled here.  More of our discussions on Bradley Manning here, here, and here.

"On the Media" is broadcast on public radio throughout the nation; this week's show is worth a listen for anyone interested in the First Amendment.

[image via]


March 15, 2013 in Executive Authority, First Amendment, News | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Allows FOIA Case for Drone Files to Move Forward

The D.C. Circuit today rejected the CIA's non-response to the ACLU's FOIA request for documents related to the government's drone program and allowed the case to move forward.  Still, the ruling doesn't ensure that anyone will actually receive documents.  That's a question for the district court on remand.

The case, ACLU v. CIA, involves the ACLU's FOIA request for "records pertaining to the use of unmanned aerial vehicles ('UAVs')--commonly referred to as 'drones' . . .--by the CIA and the Armed Forces for the purpose of killing targeted individuals."  The CIA responded with a Glomar response--declining either to confirm or deny the existence of any responsive records.  The CIA claimed that confirming the existence of documents would confirm that it is involved in, or interested in, drone strikes, while denying the existence would confirm the opposite.  According to the CIA, its involvement or interest in drone strikes fell under exceptions to the FOIA.

The D.C. Circuit disagreed.  It ruled that the government had already publicized the targeted-killing-by-drone program, and that even the CIA chief had revealed its existence and the Agency's interest in it.  Because the reasons for withholding the documents wasn't really a reason, in light of these disclosures, the court said that the CIA can't hide behind a Glomar response.  

Moreover, the CIA justified its Glomar response on the ground that it was necessary to keep secret whether the CIA itself was involved in, or interested in, drone strikes.  But the ACLU's request swept more broadly--to any government drone strikes.  And the CIA's Glomar response also swept more broadly--too broadly.

The court also noted that the government appears to have acknowledged that the CIA has some records that could be responsive to the FOIA request.

The court remanded the case to the district court to sort out what documents the CIA has, and which ones, if any, it might have to turn over.  It's not clear that the CIA will ultimately have to turn over any documents.  The court gave specific suggestions to the district court as to how it might evaluate CIA records and determine which ones it has to release.


March 15, 2013 in Cases and Case Materials, Courts and Judging, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Can States Require Proof of Citizenship to Vote?

Arizona is once again before the Supreme Court, on Monday, with a major federalism case, this time testing whether federal law preempts the state's efforts to add a proof-of-citizenship requirement, over and above the federal requirement, to its voter registration application.  The case, Arizona v. Inter Tribal Council of Arizona, asks whether the preemption standard under the Elections Clause is the same as the ordinary preemption standard under the Supremacy Clause, and whether the National Voter Registration Act preempts Arizona's proof-of-citizenship requirement.  

The former issue--going to the standard of preemption under the Elections Clause--is an important one.  The Court puts a thumb on the scale against preemption in ordinary Supremacy Clause preemption cases.  This case will tell us whether states get that thumb in Elections Clause cases, too.  If so, and if the Court rules Arizona's proof-of-citizenship requirement not preempted, we're likely to see certain states move toward more requirements like Arizona's, making it tougher for certain citizens to vote.

Here's an excerpt from my preview of the case in the ABA Preview of United States Supreme Court Cases (with permission):


 May Arizona require applicants for voter registration to provide additional evidence of U.S. citizenship without conflicting with the requirements of the National Voter Registration Act?


Congress enacted the National Voter Registration Act, the “NVRA,” or the “Motor Voter Act,” in 1993 in order to enhance voter participation by eligible citizens in federal elections while at the same time protecting the integrity of the electoral process. To these ends, the NVRA requires states to accept three kinds of registration applications from would-be voters in federal elections. First, the NVRA requires states to treat any application for a driver’s license as an application for voter registration. Next, it requires states to accept mail-in applications. Finally, the NVRA requires states to accept in-person applications at sites designated by state law.

In connection with these three methods, the NVRA provides for the creation of certain voter registration applications. Thus the NVRA requires states to create a combined driver’s license and voter registration application form commonly called the “Motor Voter Form.” (The Motor Voter Form is not at issue in this case.) The NVRA also directs the U.S. Election Assistance Commission, the “EAC,” to create the Federal Form, a nationally uniform voter application that applicants can use to register by mail or in person at designated locations. The NVRA requires that the Federal Form “shall include” a statement that specifies each eligibility requirement (including citizenship), contains an attestation of eligibility, and requires the applicant’s signature. It says that the Federal Form “may not include any requirement for notarization or other formal authentication.” And it says that the Federal Form “may require only such identifying information . . . and other information as is necessary to enable the appropriate state elections official to assess the eligibility of the applicant.” The NVRA requires states to “accept and use” the Federal Form, but it also allows a state to “develop and use” its own form, so long as the state form meets all of the NVRA criteria for the Federal Form. (Even if a state develops and uses its own form, however, the NVRA still requires every state to “accept and use” the Federal Form.) Moreover, a state may ask the EAC to add state-specific instructions to the Federal Form.

The EAC-created Federal Form specifies each eligibility requirement, including U.S. citizenship, but does not, by its plain terms, require proof of citizenship. Thus the Federal Form requires an applicant to tick a box that says that the applicant is a U.S. citizen and to swear or affirm, by signature, that he or she is a U.S. citizen and that “the applicant, to the best of his or her knowledge and belief, meets each of his or her state’s specific eligibility requirements.” The Federal Form’s state-specific instructions for Arizona require an applicant to include the number of his or her valid Arizona driver’s license or non-operating identification license, or the last four digits of his or her Social Security number. The state-specific instructions say that if an applicant does not have these numbers, “[a] unique identifying number will be assigned by the Secretary of State.” (The Federal Form, with Arizona’s state-specific instructions, is here.) In short, the Federal Form relies on an applicant’s attestation, without further proof, to determine U.S. citizenship. Arizona’s state-specific instructions only require proof if an applicant has an Arizona driver’s license or identification license, or a Social Security number.

In 2004, Arizona sought to add a proof-of-citizenship requirement. Thus Arizona voters approved Proposition 200, requiring applicants for voter registration to provide evidence of U.S. citizenship beyond the attestation requirement and the state-specific instructions in the Federal Form. In particular, Proposition 200 says that an applicant must provide his or her driver’s license number, non-operating identification number, a number associated with Native American tribal status, his or her certificate of naturalization number, or a legible photocopy of his or her U.S. birth certificate or passport. (Proposition 200 also requires registered voters to present identification in order to cast their ballots at the polls. The voter-ID component of Proposition 200 is not at issue in this case.) By its terms, this proof-of-citizenship requirement applies to both the federal form and to Arizona’s state form.

About a year after Arizona voters enacted Proposition 200, the U.S. Department of Justice precleared it under the Voting Rights Act. Arizona then asked the EAC to include its proof-of-citizenship requirement on the state-specific instructions on the federal form. The EAC declined. (The Executive Director of the EAC initially declined the request, stating that the NVRA preempted the requirement. The full EAC later upheld this decision.)

Nevertheless, Arizona implemented the new proof-of-citizenship requirements in Proposition 200 with respect to its state-specific voter registration application form and with respect to the Federal Form. As to the state-specific form, Arizona now specifically requires the proof of citizenship specified in Proposition 200. Its instructions say that an applicant must provide a driver’s license or non-operating identification license number, or, if those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Indian tribal membership. The instructions say that without this proof of citizenship, “the form will be rejected.” (Arizona’s state specific form is here.) As to the Federal Form (which, again, did not change in the wake of Proposition 200), Arizona officials now ask Federal Form applicants for evidence of citizenship pursuant to Proposition 200 whenever their Federal Form does not include such evidence of citizenship.

Just to be clear: Before Proposition 200, Arizona required only a driver’s license or non-operating identification license, or, when those were not available, a “unique identifying number . . . assigned by the Secretary of State,” in order to register to vote. After Proposition 200, Arizona now requires a driver’s license or non-operating identification license, or, when those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Tribal membership. Thus Proposition 200 added a significant proof-of-citizenship requirement, but only for those applicants who do not have a driver’s license or non-operating identification license.

Soon after Proposition 200 passed, two groups of plaintiffs sued, arguing, among other things, that the new proof-of-citizenship requirements were preempted by the NVRA. In particular, the plaintiffs argued that the new proof-of-citizenship requirements went beyond the requirements of the NVRA in a way that conflicted with the NVRA. In a first round of litigation, the plaintiffs’ case went to the Supreme Court on preliminary motions, and the Court remanded it for a determination on the merits. In the second round, on remand, the district court ruled in favor of Arizona on the plaintiffs’ preemption claim. The Ninth Circuit reversed. This appeal followed.


This case tests the boundary between congressional authority and state authority in the special context of regulation of federal elections. That boundary is set in the Constitution’s Elections Clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” In other words, states get the first crack at regulating the mechanics of federal elections, but Congress has ultimate authority to override, or preempt, state regulation. The framers gave Congress this special power over federal elections in order to safeguard against potential state efforts, through manipulation of their election laws, to undermine the national government. (At the extreme, the framers were concerned that states could frustrate the very creation of the national government by neglecting to hold federal elections.) Here, the Elections Clause governs, because Congress enacted the NVRA pursuant to its Elections Clause power.

The Supreme Court first examined congressional authority to preempt state law under the Elections Clause in Ex Parte Siebold, 100 U.S. 371 (1879). The Court in that case said that federal law preempts state law whenever they conflict: “the laws of the State, in so far as they are inconsistent with the laws of Congress on the same subject, cease to have effect as laws.” Over a century later, the Court in Foster v. Love, 522 U.S. 67 (1997), reaffirmed this principle and held that federal law setting the date for congressional elections (the Tuesday after the first Monday in November) preempted a Louisiana statute that established an open primary in October with a run-off on Congress’s specified election day only if the primary failed to produce a majority candidate.

While Siebold and Foster go specifically to Elections Clause preemption, the Court has also developed an approach to preemption under the Supremacy Clause. According to that approach, the Court seeks to preserve the “delicate balance” between the states and federal government, especially in those areas traditionally under state control. Thus under Supremacy Clause preemption the Court applies a “presumption against preemption” and holds that federal law preempts state law only when it is the “clear and manifest” purpose of Congress to do so. In short, the Court puts a thumb on the scale against preemption in its Supremacy Clause analysis.

The Court has not specifically said whether its approach to preemption under the Supremacy Clause applies also to preemption under the Elections Clause. If so, Congress would face a higher bar in preempting state law under the Elections Clause; if not, Congress could more easily preempt state law.

The parties dispute this, with Arizona arguing for the higher Supremacy Clause standard, and the plaintiffs-respondents arguing for a lower preemption standard. They also dispute whether under either standard Proposition 200 actually conflicts with the NVRA, and thus whether the NVRA preempts it.

[Summary of specific arguments omitted.]


This case tests the boundary between congressional authority and state authority in the special context of the Elections Clause. The Supreme Court has not ruled directly on this issue; in particular, it has not specifically set a standard for federal preemption of state law under this Clause. Thus this case is important because the Court’s ruling will (at least partially) fill this void and tell us something about the scope and extent of congressional authority, and therefore the scope and extent of state authority, under this Clause.

That, in turn, is important, because it will set the standard for federalism in relation to regulation of federal elections. If the Court borrows and applies the standard for preemption under the Supremacy Clause—with all its deference to state sovereignty, in the interest of maintaining the “delicate balance” between the states and federal government—the states could have more latitude to regulate elections, even affecting the composition of the federal government. (Various state efforts to strategically manipulate voting requirements in the 2012 elections in order to seek political advantage in federal elections stand as a stark and recent reminder of how state regulation could affect the federal government—exactly what the framers were concerned about.) But on the other hand if the Court applies a lower standard, one without deference to state sovereignty or considerations of federalism, the ruling could restrict the states in how they regulate elections, even restricting states from imposing additional proof-of-citizenship requirements (as in this case).

Still, the standard that the Court sets for preemption may be distinct from its ruling on preemption in this case. Whatever standard the Court adopts, its ruling in this case will tell us how much flexibility states have in adding to the NVRA requirements. If the Court holds that the NVRA does not preempt Proposition 200, this could invite states to impose all manner of additional requirements, potentially undercutting the congressional purpose of uniformity in voter registration in the NVRA and, again, potentially affecting the very composition of the federal government. But if the Court holds that the NVRA preempts Proposition 200, the ruling will restrict states in imposing additional requirements and will underscore national uniformity in voter registration.

In the end, whatever the Court rules, Congress could get the last word. That’s because Congress can always go back and rewrite its legislation in response to any preemption ruling from the Court. Here, Congress could rewrite the NVRA to more explicitly preempt state requirements like those in Proposition 200 (on the one hand), or to allow those requirements (on the other). In this way, Congress could effectively undo any decision in this case. The Court’s ruling will be important, to be sure, but it will not necessarily be the final decision on this issue.

Outside of these considerations, this case is also important because it comes to the Court just one month after the Court heard oral arguments in Shelby County v. Holder, testing the constitutionality of the preclearance provision in the Voting Rights Act. A bare majority of justices seemed skeptical in those arguments that preclearance and the related coverage formula were still necessary in 2013 to enforce the constitutional prohibitions against voting discrimination. In particular, a number of justices expressed concern about congressional infringement on state sovereignty and equality among the states. Between this case and Shelby County, we will learn quite a bit about where the Roberts Court stands on federalism and voting rights.

This case also comes just a year after Arizona v. U.S., 567 U.S. ___ (2012), another case testing Arizona’s authority, as against the federal government, to regulate non-citizens, when the regulation spills over and affects how Arizona treats U.S. citizens. Arizona v. U.S. involved the state’s efforts to clamp down on illegal immigration by authorizing its officers to check the immigration status of individuals that they detain and to regulate undocumented aliens in various ways. That case was a partial victory for Arizona and a partial victory for the United States. This case is yet a different test of Arizona’s authority, as against the federal government, to address illegal immigration.



March 15, 2013 in Cases and Case Materials, Congressional Authority, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

"Equality of States" in the VRA Challenge

"Equality of the states" reared its head recently in oral arguments in Shelby County v. Holder, the case testing congressional authority to reauthorize the preclearance provision of the Voting Rights Act.  The traditionally conservative Justices all (save Justice Thomas) expressed different concerns related to the provision's different treatment of the states--or, how preclearance violates the principle of "equality of the states."  (Preclearance under Section 5 of the VRA applies only to covered jurisdictions under Section 4(b) of the VRA.  Only covered jurisdictions, not all states, are required to preclear their election law changes with DOJ or the D.C. District court.)  

But where does this idea of equality of the states come from?

David Gans over at the Constitutional Accountability Center draws on a recent piece by Adam Liptak and argues that Congress violates a principle of equality of the states all the time--most notably by providing dramatically different levels of funding, per capita, to different states.  Nobody makes a constitutional case out of this.  

Moreover, Gans argues that "[t]he Supreme Court has never interpreted the Constitution to require equality among the states outside the very narrow context of the admission of new states.  It is now black letter law that 'the doctrine of equality of states . . . applies only to the terms upon which the states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.'"

For more on that point, and how the Court mangled the "equality of the states" quote in Northwest Austin Municipal Utility District v. Holder, check out Zachary Price's contribution to the SCOTUblog symposium on Shelby County, and Federalism and the Voting Rights Act at the ACS blog.


March 15, 2013 in Cases and Case Materials, Congressional Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Thursday, March 14, 2013

Zimbabweans Stand Ready to Approve New Constitution

Zimbabweans take to the polls this weekend to vote on a new constitution, and they're poised to approve it.  We previously posted here; Global Post reports on this weekend's vote here.

Approval requires just a bare majority vote, and despite some bumps, most seem ready to approve.  Those bumps include "anomalies" in the draft constitution and the resulting voter confusion, according to; a bar on outside poll watchers, according to VOA (and others); and even understandable pre-vote jitters among the parliamentary select committee (COPAC) that's spearheading the vote, according to Global Times.

It seems that the most significant change is to limit presidential power relative to parliament, and to impose a term limit (two five-year terms) on the president.  If voters approve the new text, as predicted, and if Mugabe wins and extends his 33-year rule, the new constitutional will allow him to extend it to just ten years, tops.


March 14, 2013 in Comparative Constitutionalism, News | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Reverses Death Sentence Because of Unconstitutional Actions of Police Officer and Prosecution

The Ninth Circuit has granted a writ of habeas corpus to Debra Jean Milke, a woman on Arizona's death row for the 1990 death of her four year old child, in its opinion today in Milke v. Ryan.

Debra Milke

The opinion is noteworthy not only for the grant of the writ in a death penalty case, but for its portrayal of police and prosecutorial practices and for the work it took to uncover the problems.  At the heart of the case is what the panel describes as essentially a "swearing contest" between the then 25 year old Debra Jean Milke (pictured right) and Phoenix Police Detective Armando Saldate, Jr.  The Detective testified that Milke was given MIranda warnings and confessed to the murder of her son.  Ms. Milke contended that she requested a lawyer, never confessed, and was innocent.  There was no signed Miranda waiver, no tape of the interrogation or confession, and no evidence other than the Detective's oral statements linking Ms. Milke to the crime.  Milke has maintained her innocence. At trial, Milke's attorneys requested the personnel files of Detective Saldate, but the state judge quashed the subpoena.  The prosecution never disclosed the evidence despite Brady v. Maryland, 373 U. S. 83 (1963) which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment.

Detective Saldate's file would have included not only numerous disciplinary actions against him for untruthfulness, but also the major cases he had worked on, including those that had appellate opinions reversing convictions based upon Saldate's violations of constitutional rights or dishonesty.  The appendix to the panel opinion lays out eight cases and one internal affairs investigation with specific findings regarding Saldate's "lying under oath" or Fourth or Fifth Amendment violations.

Also of note is the manner in which Saldate's transgressions were ultimately discovered:

Milke was able to discover the court documents detailing Saldate’s misconduct only after a team of approximately ten researchers in post-conviction proceedings spent nearly 7000 hours sifting through court records. Milke’s post-conviction attorney sent this team to the clerk of court’s offices to search for Saldate’s name in every criminal case file from 1982 to 1990. The team worked eight hours a day for three and a half months, turning up 100 cases involving Saldate. Another researcher then spent a month reading motions and transcripts from those cases to find examples of Saldate’s misconduct.

449px-St_Andreas_Parsberg_067Although Judge Kozinski wrote the panel opinion, he also wrote a concurring opinion that expressed his more personal views:

No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.

Indeed, given Saldate’s long history of trampling the rights of suspects, one wonders how Saldate came to interrogate a suspect in a high-profile murder case by himself, without a tape recorder or a witness. And how could an interrogation be concluded, and a confession extracted, without a signed Miranda waiver? In a quarter century on the Ninth Circuit, I can’t remember another case where the confession and Miranda waiver were proven by nothing but the say-so of a single officer. Is this par for the Phoenix Police Department or was Saldate called in on his day off because his supervisors knew he could be counted on to bend the rules, even lie convincingly, if that’s what it took to nail down a conviction in a high-profile case?

It’s not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again.

From the rendition of the facts in both the panel and concurring opinions, Ms. Milke was the victim of a grave injustice.  But recall the Supreme Court's 5-4 opinion in Connick v. Thompson regarding the standard by which Brady violations should be evaluated:  the "state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training.""


*updated correction

March 14, 2013 in Courts and Judging, Criminal Procedure, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Daily Read: Emily Bazelon on the Soda Ban Opinion

The opinion of a New York judge holding unconstitutional the NYC Department of Health regulation regarding soda sizes - - - popularly known as Mayor Bloomberg's soda ban - - - might be viewed as a triumph of conservative principles deployed to prevent government overreaching. 


But over at Slate, Emily Bazelon provides a contrary view. Indeed, she writes that

Judge Tingling paid lip service to the principle that courts must defer to elected bodies, which include executive agencies, but really, he is just substituting his judgment for theirs.

She has a good analysis of the opinion, both the separation of powers issue and the "arbitrary and capricious" conclusion, but also situates the opinion within larger notions of "conservative judicial activism."

Worth a read, especially for those outside NYC who want more depth than the surfeit of news stories are providing.

[image via]

March 14, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), News, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 13, 2013

Divided Fourth Circuit Panel Declares Virginia's Sodomy Law Unconstitutional: A Decade After Lawrence v. Texas

William Scott MacDonald was arrested more than a year after Lawrence v. Texas (2003), for solicitation to violate Virginia's (anti-)sodomy law, Va. Stat §18.2-361(A): "If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]"  He was eventually sentenced to ten years, with nine years suspended, and thereafter compelled to register as a sex offender.  His life, as Adam Liptak reported in 2011, has not been easy.

The underlying problem is the often-called "caveat language" in Justice Kennedy's opinion in Lawrence v. Texas:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In MacDonald's situation, the solicitation - - - all parties agree no sex actually occurred - - - was found to be of a 17 year old woman.  (Interestingly, the 47 year old MacDonald had originally contacted law enforcement alleging that the young woman had sexually assaulted him; he was also convicted of the misdemeanor of making a false report.)  The prosecution thus successfully argued that Lawrence v. Texas was inapposite since the Virginia statute - - - as applied - - - was constitutional.  This argument succeeded even though the the age limit in the solicitation statute was 15, not 18.  

The Commonwealth of Virginia was similarly successful in its arguments in state courts on direct appeal and postconviction relief.  MacDonald thereafter sought federal habeas relief, with the district judge rejecting the constitutional arguments.

The Fourth Circuit's opinion yesterday in MacDonald v. Moose belatedly provides relief for MacDonald.  The panel majority wrote that "we are constrained" to  find an entitlement to habeas corpus relief on the ground that the Virginia anti-sodomy provision "facially violates the Due Process Clause of the Fourteenth Amendment."   The Fourth Circuit's opinion seems at times quite deferential to Virginia, but at two points the opinion sharpens its rhetoric.

First, the panel points to an inconsistency in Virginia's treatment of MacDonald:

The Commonwealth’s efforts to diminish the pertinence of Lawrence in connection with MacDonald’s challenge to the anti-sodomy provision — an enactment in no way dissimilar to the Texas and Georgia statutes deemed unconstitutional by the Supreme Court — runs counter to Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005). In that case, the Supreme Court of Virginia evaluated the constitutionality of a state statute having nothing to do with sodomy, but instead outlawing ordinary sexual intercourse between unmarried persons. The state supreme court nonetheless acknowledged that Lawrence was sufficiently applicable to require the statute’s invalidation.

Second, in a footnote the panel majority expressed its disagreement with the dissent in terms that questioned Virginia's prosecutorial choices:

The dissent’s finely honed distinction that, unlike Lawrence and Bow- ers, this "case" involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely solicited an underage female to commit an act that is not, at the moment, a crime in Virginia. The Commonwealth may as well have charged Mac- Donald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal, in usurpation of the powers properly reserved to the elected representatives of the people.

Yet despite this outcome, and the amicus brief the case attracted, it is difficult not to believe some apology is yet owed to MacDonald.

[image via]

March 13, 2013 in Courts and Judging, Due Process (Substantive), Federalism, Fourteenth Amendment, News, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Daily Read: Tolson on VRA's Section 5 and - - - Section 2 of the Fourteenth Amendment

The controversies surrounding the Court's impending decision in  Shelby County v. Holder regarding the constitutionality of the Voting Rights Act's "preclearance" provision (section 5) have been exacerbated by Justice Scalia's remarks about "racial entitlement."  Seemingly, at issue for the Justices - - - originalist and otherwise - - - is the meaning of the enforcement clauses of the Fifteenth and Fourteenth Amendments: "The Congress shall have power to enforce this article by appropriate legislation."

In a provocative new article, A Structural Theory of Elections, available in draft on ssrn, ConLawProf Franita Tolson (pictured) seeks to redirect our attention to section 2 of the Fourteenth Amendment:

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Tolson's attention is not to the language that first introduced gender into the Constitution ("male inhabitants") or to the change in counting those male inhabitants ("excluding Indians") or to the subsequent change in voting age, but to the broad ability of Congress to change the apportionment for voting rights violations.  She argues that this previously under-emphasized language makes the Court's "congruence and proportionality" standard for evaluating Congressional power inapplicable in the voting and election contexts.

Tolson's article is a closely reasoned and excellently researched argument for the broad enforcement powers of Congress intended by the Framers of the Fourteenth and Fifteenth Amendments.  She ultimately contends "that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments."

Tolson's article is certainly worth a read for anyone considering the issues at the heart of Shelby County v. Holder.


March 13, 2013 in Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, History, Interpretation, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 12, 2013

Zimmer on Inequality and Money in Politics

We don't talk about economic inequality much these days in constitutional law--at least not as much as we should.  And we certainly haven't heard enough about poverty, its causes, and its solutions in politics.  ConLawProf Mike Zimmer (Loyola, Chicago) is out to do something about that in his excellent piece Inequality, Individualized Risk, and Insecurity, recently posted on SSRN and based on his Thomas E. Fairchild Lecture at the University of Wisconsin Law School last April.


Zimmer's core argument connects the dots between inequality in today's economy, government policy, and money in politics--in a way that we don't often hear, even in discussions about campaign finance reform.  (Sure, there's plenty of talk about the vast amounts of money in politics, but we don't often connect that to poverty and economic inequality.)  Here's Zimmer:

The thesis of this paper is that our extreme inequality in part results from government policy, that much government policy is the result of the undue influence of money in politics, and that, before any reform is likely, the dominance of money in politics must be substantially reduced.  An important question is how that dominance can be reduced; however, the ansewr to that question is far from clear.

Zimmer takes us through the current state of economic inequality and connects that to government policy.  He limits his focus to labor policy, but still he manages a wide-ranging discussion, tying federal labor policy to Supreme Court rulings (in Ricci v. DeStefano, Wal-Mart Stores, Inc. v. DukesAT&T Mobility LLC v. Concepcion, and even Ashcroft v. Iqbal) to show how the Court has aided and abetted Congress in tamping down labor rights at every turn.  Again, Zimmer:

In sum, putting these decisions together, employers with collective bargaining agreements have a strong incentive to require an arbitration clause shifting all statutory claims to arbitration but at the same time precluding jury trials and class actions.  That same incentive exists for employers without a union representing its workers.

If, somehow, an employee with a federal statutory claim is able to avoid having it shunted into arbitration, the Supreme Court has erected formidable procedural barriers to it reaching trial.  Until recently, employment discrimination cases were not likely to be dismissed before the summary judgment stage, which was typically triggered once discovery was complete.  In Ashcroft v. Iqbal, the Court moved up the possibility of dismissal to the earlier pleading stage before any discovery typically takes place.

Zimmer then persuasively ties federal policies that create inequalities to money in politics, again examining the Supreme Court's complicity (in Citizens United).  He calls for campaign finance reform, but, recognizing that "the prospects . . . are not good," he alternatively suggests an economic equality social movement.  Zimmer says the Occupy Movement is a start; so is popular culture (with, e.g., Steven Colbert's efforts to highlight the problems with super-PACs).  

Zimmer's piece, with its tying-together of everything from poverty and extreme inequality to labor policy to campaign finance to social movements, is a joy to read.  Highly recommended.


[Image: Vincent Van Gogh, The Potato Eaters, Google Art Project]

March 12, 2013 in Campaign Finance, News, Scholarship | Permalink | Comments (1) | TrackBack (0)

Daily Read: Lord Robin Cooke


Robin Cooke coat arms
Lord Robin Cooke Coat of Arms
Lord Cooke, 1926-2006, the renowned jurist now has a ssrn author page.

As his obituary in The Telegraph described him, Robin Cooke

strove to give reality to his country's commitment to biculturalism embedded in the Treaty of Waitangi, resolving Maori land claims cases and earning the highest respect from Maori elders. Following the New Zealand Bill of Rights Act (1990) he exercised a steadying hand on the legal tiller, which ensured relative social stability during reforms that culminated in the abolition of the appeals from New Zealand to the Privy Council and the establishment of a newly-created supreme court.

The Lord Cooke Project at Victoria University of Wellington (New Zealand/Aortearoa), spearheaded by law profs Joel Colón-Ríos and John Prebble has a goal to upload all of Lord Cooke’s published and unpublished papers and make them more widely accessible. 

ConLawProfs doing comparative constitutional law will be interested in Cooke's work, particularly his writings about the constitutional arrangements in colonial (especially white settler) societies with both the indigenous populations and with the colonial power.  Cooke also wrote widely on the development of the common law and the ssrn page now includes his four papers from the prestigious Hamlyn Lectures.  This is a terrific contribution since published Hamyln lectures are usually burdened with a hefty pricetag.

The Telegraph obituary also mentions that Cooke authored an article "disagreeing with the creation of a Supreme Court for the United Kingdom on the ground that the present system worked perfectly well." It would be interesting to contemplate Lord Cooke's opinions about the current UK Supreme Court, including its struggle for gender diversity.

Thanks to the work by Colón-Ríos and Prebbles, consulting and citing Lord Robin Cooke's work is now much easier.


March 12, 2013 in Comparative Constitutionalism, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 11, 2013

Irons's Case for Repudiation of the Japanese American Internment Cases

Professor Peter Irons (UCSD Emeritus, and founder and Director Emeritus, Earl Warren Bill of Rights Project, UCSD) calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu in his recent piece Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases.

The Supreme Court in those cases upheld convictions of Japanese Americans for violations of the military curfew and exclusion orders issued by President Franklin D. Roosevelt on February 19, 1943.


Irons initiated and served as counsel to Fred Korematsu and Gordon Hirabayashi in their 1983 coram nobis actions, which led to the vacation of their wartime convictions.  Irons also wrote Justice at War: The Story of the Japanese American Internment Cases and edited Justice Delayed: The Record of the Japanese American Internment Cases.

Case for repudiation

Irons now calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu, an unprecedented act, but one that Irons says is appropriate here:

This essay presents the case for the Supreme Court to . . . formally repudiat[e] its decisions in the Japanese American internment cases, issuing a public statement acknowledging that these decisions were based upon numerous and knowing acts of governmental misconduct before the Court, and were thus wrongly decided.  These acts of misconduct, documented and discussed herein, were committed by several high-ranking military and civilian officials (including the Solicitor General of the United States) before and during the pendancy of the internment cases before the Supreme Court.  Consequently, the Court was forced to rely in making its decisions on records and arguments that were fabricated and fraudulent.  Sadly, the Court's unquestioning acceptance of these tainted records, and its upholding of the criminal convictions of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu, has left a stain on the Court's integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government--to their credit--have now done.

Irons explains why Hirabayashi, Yasui, and Korematsu couldn't get the Supreme Court's rulings overturned, and thus why his efforts are now necessary:

Admittedly, a public repudiation of the Japanese American internment cases would be unprecedented, considering that the cases are technically moot, since the Solicitor General of the United States at the time, Charles Fried, did not ask the Court to review the decisions of the federal judges who vacated the convictions, pursuant to writs of error coram nobis that were filed in all three cases in 1983 and decided in opinions issued in 1984, 1986, and 1987.  The government's decision to forego appeals to the Supreme Court left the victorious coram nobis petitioners in a classic Catch-22 situation: hoping to persuade the Supreme Court to finally and unequivocally reverse and repudiate the decisions in their cases, they were unable--as prevailing parties in the lower courts--to bring appeals to the Court.

Irons argues that the Court "has both the inherent power and duty to correct its tainted records through a public repudiation of the wartime decisions."

This is a piece in the finest tradition of making academic work relevant to the real world--what Irons does so well.  It's a persuasive piece of history, scholarship, and activism by somebody who helped make--and continues to make--that story.  Highly recommended.


[Image: Gordon Hirabayashi, Minoru Yasui, Fred Korematsu]

March 11, 2013 in Cases and Case Materials, Courts and Judging, History, Jurisdiction of Federal Courts, Mootness, News, Scholarship | Permalink | Comments (1) | TrackBack (0)

Hungary Amends Constitution, Draws Criticism of EU and US

Hungary's conservative majority has amended the constitution, according to Al Jazeera and others, drawing criticism of the President of the European Commission and the Secretary General of the Council of Europe and the U.S. State Department.

Among the controversial changes:

  • A limit on the constitutional court's jurisdiction, prohibiting it from voiding constitutional amendments, except on procedural grounds;
  • A limit on the president's veto power, prohibiting the president from vetoing a constitutional amendment, except on procedural grounds;
  • Allowing party political broadcasts on state media only;
  • Requiring students who receive state aid to remain in Hungary after graduation for a certain period;
  • A ban on sleeping on the streets;
  • Defining family as "marriage between man and woman."

The Council of Europe and EC said that the amendments "raise concerns with respect to the principle of the rule of law, EU law and Council of Europe standards."  The State Department shared these concerns and said that the "amendments deserve closer scrutiny and more deliberate consideration, as they could threaten the principles of institutional independence and checks and balances that are the hallmark of democratic governance."


March 11, 2013 in Comparative Constitutionalism, News | Permalink | Comments (0) | TrackBack (0)

NYC Soda Regulation Enjoined by State Judge

The constitutional issues in the challenge to NYC Health Code §81.53 - - - the New York City Department of Health regulation prohibiting sugary drinks in restaurants, movie theaters and arenas to exceed 16 ounces - - - largely involve the power of a city agency to promulgate such a rule.  Today, a state trial judge, Milton Tingling, issued an decision in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene enjoining §81.53 for violating the state separation of powers doctrine.  

After a lengthy discussion of New York City Charters - - - beginning with the first charter in 1686 - - - Judge Tingling wrote:

To accept the respondents' interpretation of the authoriy granted to the Board [of Health] by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination. . . . The Portion Cap Rule, if upheld, would create an administrative Levianthan and violate the separation of powers doctrine.  The Rule would not only violate the separation of powers doctrine, it would eviscerate it.  Such an evisceration has the potential to be more troubling that sugar sweetened beverages.

The judge's conclusion that the regulation was therefor "arbitrary and capricious" followed from the lack of agency power.

The ruling is sure to be appealed from the supreme court - - - which in New York is the lowest and trial court - - - to an appellate court.

[image via]

UPDATE: NYC filed an appeal the day after the decision; COMMENTARY on the opinion here.

March 11, 2013 in Executive Authority, Opinion Analysis, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Federal District Judge Upholds Most of Arizona's Anti-Ethnic Studies Law, HB 2281

Arizona's HB 2281, which we noted when it was passed in 2010,  has been primarily upheld by federal district judge Wallace Tashima in his opinion late last Friday in Acosta v. Huppenthal.   Recall that HB 2281, codified as Arizona Revised Statute §15-112 provides:

    A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

532px-Arizona_1860_3Savings clauses in subsections E and F state that the statute should not be construed to restrict or prohibit instruction in various matters, including "the historical oppression of a particular group of people based on ethnicity, race, or class."

It was the savings clauses and Judge Tashima's narrow interpretation of the statute that supported his conclusion that most of the statute survived the First Amendment challenge.  Judge Tashima also ruled that the statute survived the Equal Protection and Due Process challenges.

As to the First Amendment, Judge Tashima explained:

Plaintiffs’ First Amendment claims are premised on two bases: the  right to speak freely in the classroom, and the right to receive information and ideas. The first basis cannot sustain their claims because the statute does not limit what students can say in the classroom. But the statute does implicate the second basis because Plaintiffs have an established right to receive information and ideas in the classroom. Limitations on this right, however, are subject only to limited scrutiny, i.e., whether the provisions are reasonably related to a legitimate pedagogical concern.

In construing the first and second provisions - - - banning courses that  "promote the overthrow" or "promote resentment" - - -  he stressed a narrow reading of the word "promote."  He also ruled that the exception for "historical oppression" (in the savings clause section F) keeps "the proscription from crossing the constitutional line."  

However, he held that the third subsection - - - "Are designed primarily for pupils of a particular ethnic group" - - - could not be similarly saved.  He noted that this provision does not promote any legitimate interest that is not already covered by the second provision, and could "chill the teaching of legitimate ethnic studies courses." 

He returned to his narrow reading to uphold the fourth provision - - - "advocate ethnic solidarity:"

Thus, if the statute simply proscribed courses that taught ethnic solidarity, without any reference to the treatment of students as individuals, it likely would not survive even the most deferential scrutiny. The provision, however, is more narrowly tailored than an outright ban on the teaching of ethnic solidarity. Instead, the statute prohibits the “advocacy” of ethnic solidarity “instead of the treatment of pupils as individuals.” By phrasing this provision in the alternative, and by restricting only the direct “advocacy” of ethnic solidarity, the provision is at least reasonably related to legitimate pedagogical concerns.

Judge Tashima disposed of the Equal Protection and Due Process challenges with much more expediency.  Regarding Equal Protection, he found that the statute did not make an express racial classification, and although there were "red flags"  and "some aspects of the record may be viewed to spark suspicion that the Latino population has been improperly targeted" that "on the whole, the evidence indicates" that it was the program and not "Latino students, teachers, or community members who supported or participated in the program" that was the issue.  Regarding Due Process, Judge Tashima concluded in a paragraph that there was no prima facie showing.

It seems likely that an appeal to the Ninth Circuit will be forthcoming.

[image: 1860 map of Tucson area via]

March 11, 2013 in Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Race, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Symposium Issue on Perry from NYU Review of Law & Social Change

Debuting on line today is volume 37:1 of the NYU Review of Law & Social Change, a symposium issue dedicated to Perry v. Brown, now Hollingsworth v. Perry that is scheduled to be heard by the United States Supreme Court in 15 days.

According to the Introduction, the Symposium editors sought to present the issue as a "time capsule," filled with "leading and emerging voices in the LGBTQ movement" as well as other scholars, "reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight."  The comments were "first drafted before the Court had even granted certiorari" on the premise that Perry was already an important case.

The Symposium participants were asked to address three queries.  Here are the questions and the participants:

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The Symposium will also be available as a print issue, but meanwhile having its full contents available before the arguments makes it more valuable as a daily - - - or weekly - - - read.


March 11, 2013 in Family, Fundamental Rights, Gender, Race, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)