Saturday, June 22, 2013

Who Loses When the Supreme Court "Procrastinates"?

Andrew Cohen at The Atlantic argues that we all do.  (H/t to Brian Roth.)  Cohen says that putting off the Big Four (and seven others) to the last week of June risks confusing the issues for the public--if only because there's not enough time and media space to adequately explore and critically analyze them:

My point is that I believe the Supreme Court doesn't just owe us a more timely resolution of (the increasingly fewer) cases it takes.  The justices also owe us all the opportunity to reasonably absorb the decisions they do hand down in a fashion that increases the chances those decisions will be accurately and adequately evaluated as quickly as possible.  The sound and fury next week, as the decisions rain down upon us like cicadas, will undermine that possibility.  And from an institution that is the least accountable and transparent anyway, that's a shame.

This is an important and correct conclusion, echoed by others.  The problem is particularly acute this Term, with four big opinions that overlap in equal protection.  We'll all be scrambling to make sense of the individual opinions next week, but also what they say as a body of law on constitutional equality.  

But Cohen's important conclusion doesn't depend on his unlikely "(cynical) theory" (also shared by others), that "perhaps it's time to ponder whether the Court is manipulating the timing of the release of its most divisive rulings to massage the impact of those rulings upon the court of public opinion"--that is, that the Court is doing this deliberately.  This kind of coordinated and calculated move seems implausible for a Court of nine independent justices, any one of whom might throw a wrench into the works at any time (by, e.g., insisting on modifying an opinion in reaction to a colleague's opinion, or some such).  This would require either a remarkable degree of coordination among the nine, or a remarkable degree of defection by a single or small group of justices, all toward the end of undermining public understanding and debate of the Court's work.  Whatever else we might say about the Court's foot-dragging, that seems extremely unlikely.

Still, Cohen's exactly right on the effect: issuing these rulings, and others, all in the last week of June, isn't good for for transparency, democratic legitimacy, or public understanding.  It isn't good for anyone.

SDS

June 22, 2013 in Courts and Judging, News | Permalink | Comments (3) | TrackBack (0)

Friday, June 21, 2013

Sorting Out Fact and Fiction in NSA's Surveillance Program

The Newseum will host a special program NSA Surveillance Leaks: Facts and Fiction on Tuesday, June 25, 2013, at 4:00 p.m., at the Knight TV Studio in Washington, D.C.  More information is here; the program will be streamed live online at newseum.org.  

The program includes an introduction by ABA President Laurel Bellows and a panel of experts on national security law, free speech, and the press.  Harvey Rishikof, chair of the ABA Standing Committee on Law and the National Security Advisory Committee, will moderate.  James Duff, president and CEO of the Freedom Forum and CEO of the Newseum, will deliver welcoming remarks.

SDS

June 21, 2013 in Conferences, Executive Authority, News, Separation of Powers, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, June 20, 2013

Court Decides "Prostitution Pledge" Case: Federal Statute Violates First Amendment

661px-World_mapThe United States Supreme Court today decided 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. It held the provision unconstitutional and affirmed the Second Circuit opinion, which the Circuit had  refused to review en banc, and which conflicted with a Sixth Circuit opinion. 

The Court's opinion, authored by Chief Justice Roberts, is relatively brief - - - a mere 15 pages - - - first acknowledges that the provision in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 would clearly violate the First Amendment's compelled speech doctrine if it were a direct regulation of speech.  In terms of an attached condition to spending - - - the unconstitutional conditions doctrine - - - Roberts explained that

the relevant distinction that has emerged from our cases is between conditions that define the limits ofthe government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.

He elaborated on this distinction by contrasting Regan v. Taxation With Representation of Washington, decided in 1983 and upholding a requirement that nonprofit organizations seeking tax-exempt status under 26 U. S. C. §501(c)(3) not engage in substantial efforts to influence legislation, with FCC v. League of Women Voters of California, decided in 1984, holding unconstitutional a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private funds.  

The opinion then both distinguished and relied upon Rust v. Sullivan, an opinion that was central to oral argument and the briefs.  The Court noted that the Government's only positive precedent was Holder v. Humanitarian Law Project, but held that it was essentially inapposite.  Instead, although the lines could be difficult to draw, the Court held that

the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. 

The opinion closed by reciting West Virginia Bd. of Ed. v. Barnette's famous quote:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

If some will not be surprised about Roberts' position given his expressions at oral argument, even fewer will be surprised by Justice Scalia.  Dissenting, Justice Scalia - - - never a fan of unconstitutional conditions doctrine - - - joined by Justice Thomas finds Barnette a "distraction" from the real issues.  He criticizes the majority's distinction between central and not, but also finds that there is no coercion.  He analogizes to "King Cnut’s commanding of the tides" to conclude there is "no compulsion at all," simply "the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject."  Of course, the majority, by considering whether or not a condition is central, essentially held that the price of admission was simply not "reasonable."  But for Scalia, requiring an "ideological commitment" as a condition to government funding should be acceptable, and the "real evil" of the opinion is a type of floodgates argument:  "One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons."   More broadly, he extends his argument beyond funding, stating that while one may be a Communist or anarchist, members of the legislature, judiciary, and executive are bound by the Constitution to take an oath affirming it, Art. VI, cl. 3. 

RR
[image via]

June 20, 2013 in Cases and Case Materials, First Amendment, Gender, International, Opinion Analysis, Sexuality, Speech, Spending Clause | Permalink | Comments (1) | TrackBack (0)

What's the Real Standard in Guantanamo Habeas Cases?

The D.C. Circuit this week denied a habeas petition of a Yemeni detained at Guantanamo Bay.  The ruling in Hussain v. Obama is unremarkable, given the lower courts' approach in these cases.  But a concurrence in the case sheds light on a problem: the lower courts are in fact applying the wrong standard.

If that's right--and the concurrence makes a good case that it is--then the courts are denying habeas petitions that shouldn't be denied.  The solution, according to concurring Judge Edwards: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases."  Indeed.

The majority in the case applied the now-settled test for habeas petitions coming out of Guantanamo Bay: Whether the government has shown, by a preponderance of the evidence, that the detainee was "part of" al Qaeda, the Taliban, or associated forces at the time of capture.  (The test purports to apply the government's detention authority under the AUMF, which permits the president to detain individuals who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons.")  The majority rejected Hussain's arguments to adjust and tighten the test and concluded that it was easily met here.

But concurring Senior District Judge Edwards argued that the court actually and wrongly applied a lower "substantial evidence" test, not the more rigorous preponderance-of-evidence test that the court said it applied.  Judge Edwards argued that the evidence in this case--or lack thereof--only supported a conclusion that Hussain fell into the covered group by a substantial evidence standard, not by a preponderance of the evidence, even though the majority held that it met that higher standard.  Moreover, Judge Edwards wrote that the court implicitly shifted the burden from the government to Hussain in showing that he continued to affiliate with enemy forces after leaving Afghanistan.  

Despite these problems, Judge Edwards concurred in the result, because, he said, the law of the circuit compelled it.

Still, Judge Edwards concluded with a call for change: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases."  Conc. at 5.

SDS

June 20, 2013 in Cases and Case Materials, Congressional Authority, Executive Authority, Habeas Corpus, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 19, 2013

Can Aung San Suu Kyi Become Myanmar's President?

Reuters reports that the Myanmar Constitution may foil Aung San Suu Kyi's plans to become the country's next president in the general election in 2015.  According to the report, the Myanmar Constitution "bars anyone married to a foreigner or who has childrens who are foreign citizens.  Suu Kyi and her late husband, the British academic Michael Aris, had two children who are British."

Section 59(f) of the Myanmar Constitution requires that the president and vice-president

shall he himself, one of the parents, the spouse, one of the legitimate children or their spouses not owe allegiance to a foreign power, not be subject of a foreign power or citizen of a foreign country.  They shall not be persons entitled to enjoy the rights and privileges of a subject of a foreign government or citizen of a foreign country.

The provision was apparently included to exclude Suu Kyi from the presidency.  

It also seems that an amendment is unlikely.  Section 436(a) requires a 75% vote in parliament, where current and former military have a lock, and a majority in a national referendum.  

SDS

June 19, 2013 in Comparative Constitutionalism, News | Permalink | Comments (0) | TrackBack (0)

Common Cause Takes Filibuster Challenge to D.C. Circuit

Common Cause this week pursued its case against the Senate filibuster at the D.C. Circuit when it filed its appellate brief, arguing that Judge Emmett G. Sullivan (D.D.C.) was wrong to dismiss the case last December and pressing its argument that the filibuster is unconstitutional.  Common Cause's press release is here; the brief is here.  We posted on Judge Sullivan's decision here.

Recall that Judge Sullivan dismissed the case, Common Cause v. Biden, for lack of standing and for raising a political question.  In its brief, Common Cause takes on Judge Sullivan's ruling and argues that the filibuster is unconstitutional.

As to standing, Common Cause argues that House-member-plaintiffs have standing to challenge Senate Rule XXII, the cloture rule that allows a filibuster if the majority can't muster 60 votes to close debate, because the Rule allowed a minority in the Senate to effectively nullify their votes in favor of the DISCLOSE and DREAM Acts.  Common Cause relies on language from Raines v. Byrd (1997), which says that "legislators whose votes . . . would have been sufficient to . . . enact a specific legislative Act have standing to sue if that legislative action . . . does not go into effect on the ground that their votes have been completely nullified" by a procedural violation of the Constitution.  (In Raines, the Court held that Senator Byrd lacked standing when he mounted a facial challenge to the Line-Item Veto Act but failed to show that his vote on any specific appropriation bill had been nullified by the Act.)

Common Cause also argues that it has standing in its own right, because the filibuster of the DISCLOSE Act frustrated its core mission of campaign reform.  It argues that it has standing based on its members, because they cannot learn the identities of certain campaign contributors.  And it argues that the "dreamer"-plaintiffs have standing, because the filibuster of the DREAM Act denied them the benefits of that Act.

As to political question, Common Cause says that rules of Congress are justiciable, that they must be constitutional, and that "[t]here is nothing in the record of the Federal Convention indicating that the Framers intended to delegate to either house the authority to depart from the principle of majority rule . . . ."  Brief at 15-16.

Finally, on the merits, Common Cause says,

Rule XXII's supermajority vote requirement is inconsistent with the rules of parliamentary practice that preceeded the adoption of the Constitution, the intent of the Framers as reflected in The Federalist Papers, the text of the Quorum and the Presentment Clauses, the exclusive list of exceptions to the principle of majority rule in the Constitution which specify when a supermajority vote is required, the provision of Article I, Sec. 3, cl. 4 that gives the Vice President the power to cast the tie-breaking majority vote when the Senate is "equally divided," and the first rules adopted by the Senate and the House immediately after ratification.

Brief at 56.

SDS

June 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Arizona Voter Registration Case: No Pyrrhic Victory for the Feds

In response to Monday's ruling in Arizona v. InterTribal Council of Arizona, Inc., striking Arizona's requirement that voters show proof of citizenship above and beyond the oath of citizenship on the standard federal voter registration form, there's a debate about whether the case is a pyrrhic victory for the federal government.  Our most recent post on the case, with links to earlier posts, is here.

On one side, Mary Lederman argued over at SCOTUSblog that the case, for all its talk of federal supremacy over how federal elections are held, probably curtails federal authority over who may vote in them.  That's because Justice Scalia, writing for the Court, carefully reserved the power to determine who may vote in federal elections to the states.  Lederman seized on Justice Scalia's line that the Elections Clause "empowers Congress to regulate how federal elections are held, but not who may vote in them" and argued that this principle puts in jeopardy current and possible future federal legislation requiring states to register certain persons to vote.  For example, he argued that the ruling threatens the Uniformed and Overseas Citizens Absentee Voting Act, UOCAVA, which requires a state to register for federal electiosn any person who resides outside the United States but would otherwise be qualified to vote in that state; any congressional restriction on state felon disenfrachisement laws; and even federal law upheld under Oregon v. Mitchell.  Rick Hasen made a similar point at The Daily Beast, followed up with a post on his own Election Law Blog.

On the other side, David Gans over at the Text and History blog at the Constitutional Accountability Center, argued that Lederman's argument "misses the enduring significance of Justice Scalia's sweeping reaffirmation that the Constitution gives Congress very broad powers to protect the right to vote in federal elections . . . ."  Gans and others seized on Justice Scalia's repeated and very strong language affirming federal authority under the Elections Clause--its "paramount power," without a presumption against preemption--to set the rules of the "Times, Places, and Manner" of congressional elections.

So who's right?

Both, it turns out--with an important caveat.  The ruling gives Congress broad authority under the Elections Clause to regulate the "Times, Places, and Manner" of congressional elections, including prescribing a federal form, using an oath on that form as evidence of citizenship, and requiring states to petition federal authorities (the EAC) to add a proof-of-citizenship requirement on that form (or to sue to get the EAC to add the requirement).  That's the core holding of the case--that the NVRA, with the prescribed federal form, including the oath, is a valid regulation of the "Times, Places, and Manner" of congressional elections that preempts contrary state law.

But the NVRA and the federal form spill over into the state-controlled power to determine who gets to vote, because they regulate the manner of determining an important qualification for voters, citizenship.  The Court said that to the extent that a federal law spills over and regulates voter qualification like this, the states must have an opportunity to petition federal authorities and ultimately to sue (under the Administrative Procedures Act) to enforce their own state voter eligibility requirements.  

So even under the Elections Clause, the case stands for vast federal authority--authority to set the "Times, Places, and Manner" of congressional election in a way that absolutely preempts state law, and more: to set those standards even when they spill over into regulation of who gets to vote, so long as the states have an opportunity--under a very loose standard--to preserve their power to set voter qualifications through administrative petitioning and APA action.  (Note that this administrative petitioning, by the Court's own reckoning, is informal and casual.  Note further that APA review is deferential.  Between the two, the principle puts the inertia behind federal regulation that spills over into regulation of voter qualification.)  

While the Court articulated these rules in the case--that is, that the feds have the absolute power over how to vote, while the states have the power over who gets to vote--even perhaps more clearly than it has in the past, it's not obvious that this breaks any new ground.  In particular, it's not obvious that it breaks any new ground reducing the power of the federal government or enhancing the powers of the states.  Indeed, if anything, the core holding of the case only underscores the vast power of the federal government at the expense of the states.  (While Justice Scalia's line dividing power between the feds and the states may eventually prove to be a "time bomb" (Hasen's phrase), the principal, driving holding of the case reaffirms federal authority.)

So here's the caveat: the Court said all this only with respect to the Elections Clause, but of course made no ruling on any other federal authority to regulate voter qualifications.  Thus the Court left in place vast federal power under the Fourteenth and Fifteenth Amendments, and left untouched the constitutional rights to travel and to vote.  Those authorities and rights, and others, might well support federal authority to enact the UOCAVA and maybe even to restrict certain state felon disenfrachisement laws.  If so, Monday's ruling doesn't do anything to those actual and potential federal laws.  

Moreoer, Monday's ruling does nothing to the federal laws upheld under Oregon v. Mitchell, or otherwise to undermine whatever holdings came out of that case.  (Justice Scalia's footnote 8 does nothing to the vitality or legitimacy of Mitchell, say what you will about the footnote or about Mitchell itself.)  Lederman argues that those laws might not withstand scrutiny under the Court's current approach to congressional enforcement power under the Reconstruction Amendments.  But, if so, that's a function of City of Boerne, not Monday's ruling.  Moreover, some or all of the laws upheld under Mitchell might well be upheld under different authorities.  As we know, the Court itself split sharply on the sources of authority in that case, suggesting that those laws might enjoy support under other authorities, not subject to the Elections Clause constraint that states have the power to determine who gets to vote.  

In short, Monday's ruling is a clear victory for federal authority under the Elections Clause, with a reservation of qualified state authority to determine who gets to vote in congressional elections even when Congress regulates the "Times, Places, and Manner" of congressional elections in a way that spills over into voter qualifications.  (Why "qualified state authority"?  Because the Court upheld a federal law that set a standard for voter eligibility, based on the oath on the federal form, so long as the states can petition the EAC and bring an action to court to supplement the oath if they can show that the oath is insufficient.  This putting-the-burden-on-the-state when the federal government prescribes a way to determine eligibility is a thumb on the scale in favor of federal power.  At the very least, it's an extremely unusual way to preserve and protect state power.)  But the ruling does nothing to other constitutional powers that Congress might use to validly enact federal law, and to preempt state law, regarding voter qualifications.  

SDS

June 19, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Travel | Permalink | Comments (0) | TrackBack (0)

Monday, June 17, 2013

Court Says Federal Law Preempts Arizona's Proof-of-Citizenship Requirement to Vote

The Supreme Court ruled today in Arizona v. InterTribal Council of Arizona, Inc. that the federal requirement under the National Voter Registration Act, NVRA, that the states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration.  The ruling strikes Arizona's proof-of-citizenship requirement for users of the federal form, but also invites Arizona to try to get the federal Election Assistance Commission to provide state-specific instructions requiring proof of citizenship through an administrative process.  We posted on the case earlier here; our argument preview is here; our argument review is here.

The ruling is a strong statement of federal authority over the states when Congress acts pursuant to its Elections Clause power.  But the case doesn't change the basic federalism framework that the Court uses in its ordinary preemption cases (under the Supremacy Clause)--including its presumption against preemption in those cases--and it of course says nothing about the likely direction the Court will take in Shelby County, the pending decision on the challenge to Section 5 of the Voting Rights Act.  

Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Kennedy, writing separately, concurred in part and concurred in the judgment.

The case arose out of Arizona's Proposition 200, a ballot initiative that required county recorders to reject any voter registration application not accompanied by a proof of citizenship.  The problem is that the NVRA requires states to "accept and use" a uniform federal form designed by the Election Assistance Commission; and the federal form only requires an applicant to attest, under penalty of perjury, that he or she meets the state voting requirements (including citizenship).  (The EAC rejected Arizona's request to include a state-specific instruction on the federal form that applicants must provide proof of citizenship.)

So the question in InterTribal was whether the NVRA requirement that states "accept and use" the federal form preempted Arizona's proof-of-citizenship requirement.  The Court ruled that it did.

Congress enacted the NVRA pursuant to its authority under the Elections Clause.  The Elections Clause, Article I, Sec. 4, cl. 1, provides:

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.

The Court recognized that the Clause was designed to give Congress certain authority over federal elections in order to ensure that states wouldn't undercut the federal government by refusing to provide for the election of representatives to Congress.  Thus, the preemptive power of the Clause, even if a "default," is sweeping:

In practice, the Clause functions as "a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices." . . .  The power of Congress over the "Times, Places and Manner" of congressional elections "is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supercede those of the State which are inconsistent therewith."

Op. at 5-6 (citations omitted).  More, the Court rejected Arizona's argument that there is a presumption against preemption in the Elections Clause context.  It said that when Congress regulates under the Elections Clause, "it necessarily displaces some element of a pre-existing legal regime erected by the States."  Op. at 11 (emphasis in original).  "Moreover, the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker here.  Unlike the States' 'historic police powers,' . . . the States' role in regulating congressional elections--while weighty and worthy of respect--has always existed subject to the express qualification that it 'terminates according to federal law.'"  Op. at 12 (citations omitted).  

Thus, the Court said that there was no reason not to give the congressional requirement that states "accept and use" the federal form its plain meaning.  And that meaning prohibits the states from adding a proof-of-citizenship requirement over and above what the federal form already requires.  

The Court noted that the "alternative means of enforcing its constitutional power to determine voting qualifications"--petitioning the EAC to alter the federal form, and challenging the EAC's rejection of a petition under the Administrative Procedures Act--"remains open to Arizona here."  Op. at 16.

Justice Kennedy concurred, but wrote separately to take issue with the Court's creation of "a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending upon which power Congress has exercised."  He would have applied a presumption against preemption in this case--and any case involving federal legislation under the Elections Clause--but thought that that presumption was satisfied here.

Justice Thomas dissented, arguing that the Voter Qualifications Clause and the Seventeenth Amendment reserve the power to the states to determine qualifications of voters in federal elections.  The Voter Qualifications Clause, Article I, Sec. 2, cl 1., says that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature" in elections for the federal House of Representatives.  The Seventeenth Amendment contains similar language for elections for the Senate.  Because both parties' interpretations of the "accept and use" language were plausible, according to Justice Thomas, these other provisions tilt the scale in favor of Arizona--and state determination of voter qualifications.

Finally, Justice Alito dissented, arguing that the NVRA language is ambiguous, but "their best reading is that the States need not treat the federal form as a complete voter registration application."  

SDS

 

June 17, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Court Strikes Arizona's Proof-of-Citizenship Requirement

The Supreme Court ruled today in Arizona v. InterTribal Council of Arizona, Inc. that the National Voter Registration Act, NVRA, preempts Arizona's requirement that voters show evidence of citizenship before registering to vote using the federal form.  Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Kennedy joined in part.  Justices Thomas and Alito dissented.

The Court held that the NVRA's requirement that states "accept and use" the federal form preempted, under the Elections Clause, Arizona's proof-of-citizenship requirement.  

We posted most recently on the case here and here.  We'll have more analysis soon.

Map_of_USA_AZ.svg

SDS

June 17, 2013 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)