Saturday, April 27, 2013
While the facts may not be as originally reported, the NRA t-shirt of West Virginia High School Student has been causing consternation. Was he really suspended - - - and arrested - - - for wearing a t-shirt?
Such a result is most likely inconsistent with Tinker v. Des Moines Independent Community School District. But that's not the full constitutional or perhaps factual story.
Friday, April 26, 2013
The Obama Administration filed its Petition for Writ of Certiorari yesterday in NLRB v. Noel Canning, the case testing whether President Obama's recess appointments of three NLRB members satisfied the Recess Appointments Clause.
Recall that the D.C. Circuit ruled that they didn't. (Here's our coverage of the lower court ruling, with links to resources.) That court held that the Recess Appointments Clause permits a recess appointment only during an inter-session recess of Congress (i.e., a recess that occurs between one enumerated session of Congress and the beginning of the next), not an intra-session recess (i.e., a recess that occurs during the course of a session), and that it permits a recess appointment only for vacancies that arise during an inter-session recess. The court said that because President Obama made the appointments during an intra-session recess of Congress, and because the vacancies did not arise during an inter-session recess of Congress, the appointments were invalid.
The government seeks review of both issues--whether the President can exercise the recess-appointment power during an intra-session recess, and whether the President can fill a vacancy that existed (even if not arose) during a recess.
It's a good bet the Court will take this. There's a circuit split, and the stakes are high. As the government explains:
[The decision below] would deem invalid hundreds of recess appointments made by Presidents since early in the Nation's history. It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.
Petition at 11-12.
In an interesting advisory opinion from the Federal Election Commission (FEC), the ability of same-sex couples married under state law to make political contributions similar to opposite-sex married couples is thwarted by the Defense of Marriage Act (DOMA). Recall that the United States Supreme Court is currently considering the constitutionality of DOMA in United States v. Windsor, argued last month.
The advisory opinion explained the underlying regulatory scheme:
Notwithstanding the prohibition on contributions in the name of another, a Commission regulation governing “[c]ontributions by spouses” provides that “limitations on contributions . . . shall apply separately to contributions made by each spouse even if only one spouse has income.” 11 C.F.R. 110.1(i). Thus, under Section 110.1(i), a spouse with no separate income may make a contribution in his or her own name “through the checking account of the other spouse.”
It concluded that "so long as the relevant provisions of DOMA remain in effect, the Committee may not apply 11 C.F.R. 110.1(i) to contributions from same-sex couples married under state law," although the Commission recognized that DOMA was currently under review.
In a separately issued concurring statement, FEC Chair Ellen Weintraub (pictured) emphasized that her "vote today was in no way intended to endorse the discriminatory, irrational burden that DOMA places on political participation by individuals in same sex."
If DOMA is not declared unconstitutional by the United States Supreme Court on the basis of equal protection, the FEC's opinion might be fertile ground on which to grow a First Amendment challenge.
[image of Ellen Weintraub via]
Wednesday, April 24, 2013
A three-judge panel of the D.C. Circuit ruled this week in Defenders of Wildlife v. Perciasepe that a utility industry group lacked Article III standing to intervene in a case brought by Defenders against EPA in which the parties entered into a consent decree establishing a schedule for EPA to initiate notice-and-comment rulemaking on certain effluent limitations and effluent limitations guidelines.
The ruling means that the EPA will move forward with notice-and-comment rulemaking pursuant to the consent decree, and that the utility group's challenge is dismissed.
The case arose when Defenders and the Sierra Club reached an agreement with the EPA to establish a schedule for notice-and-comment rulemaking to review and possibly rewrite Steam Electric effluent limitations and effluent limitations guidelines under the Clean Water Act. Defenders filed suit and simultaneously filed a consent decree. Eight days later, the Utility Water Act Group, or UWAG, an association of energy companies, moved to intervene (in opposition to the consent decree). The district court denied the motion, and UWAG appealed.
The D.C. Circuit ruled that UWAG lacked standing, a requirement for intervention. The court first held that UWAG didn't assert a procedural injury. In particular, UWAG didn't have any claim that it should be "subject to such rulemaking only to the extent the statute commands it or authorizes EPA, in its informed discretion, to undertake it," because UWAG didn't identify a statutory procedure that the consent decree required EPA to violate. Moreover, UWAG didn't have a procedural injury flowing from the consent decree's short notice-and-comment schedule: UWAG couldn't cite any authority that the 13-month schedule was too short.
The court next said that the consent decree didn't require EPA to promulgate new rules. Instead, the decree simply required EPA to conduct a rulemaking and then decide whether to issue a new rule. The court held that this wasn't enough to meet the imminent harm requirement for standing.
Assuming no successful appeal, the next step is for EPA to start its notice-and-comment procedure pursuant to the consent decree.
Over at the Best Practices Policy Project, "dedicated to supporting organizations and advocates working with sex workers, people in the sex trade," two City University of New York (CUNY) School of Law students, Kat Thomas and Lauren Parnes, provide their perspectives on Monday's Supreme Court oral argument United States Agency for International Development v. Alliance for Open Society International, Inc. which we discussed here.
Because they were in the courtroom, they were able to add the fact that several of the Justices - - - including Chief Justice Roberts - - - nodded in agreement with this point made by David Bowker, Counsel for Alliance for Open Society:
on the government’s theory, the government can give you — can give anyone in the country a dollar in Medicare funds and say, okay, now that you’ve taken a dollar of our money, we want you to profess your agreement with the Affordable Care Act, and we want you to never say anything inconsistent with that in your private speech. That is — that is wildly inconsistent with the First Amendment. That’s exactly what’s happening here. The only difference is the subject of prostitution. That’s what makes it less palatable.
The palatableness of the subject matter for the Justices and counsel alike is further explored by Thomas and Parnes. Worth a read.
Tuesday, April 23, 2013
Loyola University Chicago School of Law is organizing the FOURTH ANNUAL CONSTITUTIONAL LAW COLLOQUIUM at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 1 and end midday on Saturday, November 2, 2013.
This is the fourth annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Presentations will be grouped by subject matter.
This announcement invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. We also welcome attendees who wish to participate in audience discussions without presenting a paper. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.
Eligibility: The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching full-time and part-time at the university, law school, and graduate levels on all matters of constitutional law.
Application Procedure: The registration and abstract submission deadline is June 15, 2013. Conference organizers will select abstracts on a rolling basis.
Topics, abstracts, papers, questions, and comments should be submitted to:
Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.
. Professor John E. Nowak, Raymond and Mary Simon Chair in Constitutional Law
. Professor Juan Perea
. Professor Alexander Tsesis
. Professor Michael J. Zimmer
Loyola Constitutional Law Faculty:
. Professor John Nowak, Raymond and Mary Simon Chair in Constitutional Law
. Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
. Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
. Professor George Anastaplo
. Professor Juan Perea
. Professor Alan Raphael
. Professor Allen Shoenberger
. Professor Alexander Tsesis
. Professor Michael Zimmer
[Image: Howard Chandler Christy, Scene at the Signing of the Constitution of the United States, Architect of the Capitol]
Monday, April 22, 2013
The Obama administration announced today that it would not hold alleged Boston Marathon bomber Dzhokhar Tsarnaev as an enemy combatant, as some (perhaps most prominently Senator Lindsay Graham) have advocated. Adam Serwer argues at Mother Jones that this was an easy case:
Under current law, the fact that Tsarnaev shares an ethnicity and religion with other extremists is insufficient grounds to detain him militarily. The 2012 National Defense Authorization Act, which Graham vocally supported, defines as eligible for military detention "a person who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." There's no evidence yet that the suspects in the Boston bombing acted with the support of or at the behest of Al-Qaeda, the Taliban, or associated forces. Unless that evidence emerges, it wouldn't be legal to hold Tsarnaev as an enemy combatant, even if he and his brother were motivated by extremist religious beliefs.
Serwer quotes Benjamin Wittes, saying "It's actually not a close question." Wittes set out his case against detention as an enemy combatant on Lawfare. CRS has a terrific backgrounder, titled Detention of U.S. Persons as Enemy Belligerents, here.
There's still some buzz about the Miranda question. New York v. Quarles (1984) created the "public safety" exception; the case is here. The Obama FBI issued this memo, obtained first by the NYT, on October 21, 2010, interpreting the exception and possibly expanding its scope for terrorist suspects. (Wittes posted these reflections on the memo on Lawfare.) Glenn Greenwald at the Guardian writes here; Emily Bazelon at Slate writes here; and Sandy Levinson and Jason Mazzone go back and forth at Balkinization here. CRS has a good introduction to some of the issues, Terrorism, Miranda, and Related Matters, here.
Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?
ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).
Abrams argues for a something less than a wholesale exception:
The expression, “cabined,” is meant to signify not extending all the way up the ladder of police interrogation methods, but only applying to a limited, non - extreme set of interrogation methods, albeit methods that under current law might lead to a determination of involuntariness. A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as established by the Supreme Court, but only up to a point, and not to the point where the methods used are extreme.
For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling. But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.
The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work.
In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs. The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan. The Second Circuit had held the provision unconstitutional.
Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations. Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:
JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted. And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.
Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness." Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.
Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue.
David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech. Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in a colloquy with Justice Sotomayor:
MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -
It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,
JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .
There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.
In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities. Unfortunately, the rationale supporting that fourth entity was not explored.
The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act. The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain. More certain is that Justice Kagan's perspective will be sorely missed.