Thursday, July 4, 2013
Jonathan Hafetz (Seton Hall), author of Habeas Corpus After 9/11: Confronting America's New Global Detention System, wrote at Al Jazeera that "there appears to be real momentum behind new efforts to reform Guantanamo policies."
In particular, Hafetz points to loosened restrictions on the administration's transfer of detainees at Guantanamo Bay in the National Defense Authorization Act of 2014, approved last week by the Senate Armed Services Committee. Still, the bill has to clear the full Senate, where it will surely meet some resistance, and, as Hafetz points out, the House version contains the old restrictions.
Wednesday, July 3, 2013
The Fourth Circuit en banc today issued its opinion in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversing the district court's granting of a preliminary injunction against the ordinance requiring a limited-service pregnancy center "provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services." Essentially, the city's concern is that certain pregnancy centers can be mistaken (or even masquerade as) reproductive medical centers but only offer specific counseling that women not terminate their pregnancies.
The challengers argued that the ordinance was facially unconstitutional under the First Amendment and the district judge granted summary judgment in their favor. For the en banc majority, however, "the summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure."
The majority opinion, authored by Judge King, in which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn, Floyd, and Thacker joined, stressed that its conclusion was procedural and that it did not express a view on the ultimate merits. Nevertheless, as in most cases, the merits and procedural issues are intertwined. For example, one of the crucial issues here is whether the speech being regulated is commercial or not. As the majority stated,
The district court’s denial of discovery and failure to adhere to the summary judgment standard marred its assessment of, inter alia, the City’s contention that the Ordinance targets misleading commercial speech and thus is subject to rational basis (rather than strict) scrutiny. While the strict scrutiny standard generally applies to content-based regulations, including compelled speech, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42 (1994), less-demanding standards apply where the speech at issue is commercial. Disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny, by being “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 651 (1985) (explaining that, “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception” (alterations and internal quotation marks omitted)); accord Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40 (2010).
There are two dissenting opinions. The first, by Judge Wilkinson, derides the majority for failing to acknowledge "the dangers of state-compelled speech." He notes that the Supreme Court "only recently reiterated" the importance of the doctrine in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., the prostitution pledge case. Wilkinson accuses the majority of being enchanted with "extended procedures" and argues that it only authorizes a "fishing expedition" against the plaintiffs. The second dissent, authored by Judge Niemeyer, and joined by Judges Shedd, and Agee, as well as Wilkinson, contends that the ordinance governs noncommercial speech, mandates specific speech, and should be subject to strict scrutiny.
The judges did agree - - - amongst themselves and with the district judge - - - that St. Brigid’s Roman Catholic Congregation Incorporated and Archbishop William E. Lori lacked standing to be co-plaintiffs, but this issue is a divisive one. Indeed, there is an overdue Second Circuit panel opinion in the appeal of a district judge's conclusion that NYC's similar Local Law 17 was unconstitutional.
Moreover, the First Amendment challenges to pregnancy center "disclosures" as compelled speech mirror the First Amendment challenges to abortion provider "disclosures" as compelled speech, as in statutes from Kansas and South Dakota. The government's interest in preventing "misleading" speech or in providing full disclosure is exceedingly similar in both situations.
For scholars (including student scholars) looking for a terrific topic combining the First Amendment and reproductive rights, theses cases offer much.
We posted on two state efforts in Texas and North Carolina to enact election laws that would have required federal preclearance before last week's ruling in Shelby County v. Holder. In Texas, the laws were denied preclearance by a three-judge federal court; those rulings, Texas v. Holder and Texas v. United States, were vacated by the Supreme Court two days after Shelby County came down, making way for the laws to go on the books.
I posted at the ACSblog on what this all means, and how it illustrates the stunning impact of Shelby County. In short, the federal courts in the two Texas cases held that Texas's proposed voter-ID law and its redistricting plan for congressional and state legislative districts would likely have a retrogressive effect on the voting rights of racial minorities. (One of those courts also found that Texas drew its redistricting map with a discriminatory purpose.) Now that those cases are vacated, and now that the Texas AG has ordered the laws enforced, we'll soon get a fuller picture of the impact of Shelby County.
Kansas' new abortion law that took effect July 1 - - - running 70 pages and known as Kansas HB 2253 - - - has already been the subject of a constitutional challenge. HB 2253 seeks to restrict abortion and other reproductive services in numerous ways in accord with the legislative finding that "the life of each human being begins at fertilization." The Complaint filed by the local Planned Parenthood organization, Comprehensive Health of Planned Parenthood of Kansas and Mid- Missouri, Inc. (CHPPKM) specifically challenges two provisions of the law on First Amendment grounds.
Planned Parenthood v. Rounds. Even though there was some "uncertainty" as to the reliability of the studies purporting to show a link between abortion and suicide ideation - - - including the very meaning of the word "risk" - - - the majority in Rounds found that the provision survived by giving great deference to South Dakota. One question will be whether the Tenth Circuit will be as deferential as the majority in its sister circuit or be as rigorous as the dissenting judges in Rounds.
Second, the complaint challenges the provision that compels CHPPKM "to place on the homepage of its public website both a hyperlink to a government website that contains the government’s viewpoint on abortion, and a scripted message of endorsement of the content on the government’s website, even where CHPPKM disagrees with the message." In light of last month's decision by the United States Supreme Court in United States Agency for International Development v. Alliance for Open Society International, Inc., - - - the prostitution pledge case - - - invalidating a requirement that organizations that received direct funding could not be compelled to espouse views that were not their own, this claim seems on firm First Amendment footing. The distinction is a factual one - - - the hyperlink - - - although interestingly CHPPKM contends in its complaint this further complicates the matter because it cannot be expected to constantly monitor the government site. Certainly, however, much of the language and reasoning in Chief Justice Roberts' majority opinion for the Court solidifies compelled speech doctrine. And interestingly, compelled speech doctrine is being argued by anti-abortion organizations to challenge laws requiring "pregnancy crisis centers" to disclose the fact that they are not medical facilities. ( For example, a district judge held NYC's Local Law 17 unconstitutional in 2011; an opinion from the Second Circuit has been anticipated since oral argument over a year ago). UPDATE: The Fourth Circuit's en banc opinion July 3 on a Baltimore ordinance.
A popular discussion of the controversy, including some of my own thoughts, is available on "KC Currents" broadcast by KCUR, a local NPR station.
Tuesday, July 2, 2013
North Carolina Republicans wasted little time in introducing legislation to tighten voting rules after the Supreme Court last week struck the coverage formula for preclearance in the Voting Rights Act. North Carolina was partially covered by the preclearance provision in Section 5 of the VRA, before the Court struck the coverage formula in Section 4 last week in Shelby County v. Holder. The LA Times first reported this weekend that state Republicans intended to tighten voting rules under their new-found, unfettered authority to act without federal preclearance. Legislation was introduced Tuesday.
SB 721, "Election Omnibus," introduces a voter ID requirement, tightens felon disenfranchisement rules, and limits early voting days.
(State Democrats introduced a competing measure, S 708, the Ella Baker Voter Empowerment Act, that would open up voting in the state.)
North Carolina was a partially covered jurisdiction under Section 4 (before Shelby County struck Section 4): 40 out of 100 of its counties were covered. That meant that those counties had to gain federal preclearance under Section 5 of the VRA before making any changes to their election laws--and to show that their proposed changes wouldn't produce a racially retrogressive effect.
But now that Section 4 is off the books, those counties don't need to gain federal preclearance. And the state can much more easily change its election laws--and enact bills like SB 721.
Still, North Carolina election laws are subject to Section 2 litigation under the VRA.
District Judge Finds No Government Liability in "Occupy Everything" Jacket Arrest in Supreme Court Building
Federal District Judge for the District of Columbia, Amy Berman Jackson, has granted summary judgment for the government in her opinion in Scott v. United States in which Scott had alleged that the United States Supreme Court Police violated clearly established First Amendment principles when they arrested him for unlawful entry while he was wearing a jacket bearing the message “Occupy Everywhere” in the Supreme Court building.
Recall our discussion in January 2012 when Scott was arrested (including video). Since then, as we have also discussed, the federal statute prohibiting certain displays (including words) has been held unconstitutional by a different DC Federal District Judge, at least as to the plaza, and the Supreme Court quickly amended its regulation.
Scott sought damages and expungement of his record, alleging false arrest and imprisonment. Judge Jackson rejected this claim finding that there was probable cause to arrest Scott, and even if there was not, the officers had a reasonable good faith belief that there was probable cause. Jackson concludes that Scott's jacket "fell squarely" within the plain language of the "display clause" of 40 USC §6135:
he was displaying a device (his jacket) in the building which had been adapted to bring public attention to the “Occupy” movement. See Kinane v. United States, 12 A.3d 23, 25–26 (D.C. 2011) (affirming the conviction of protestors for violating the display clause of section 6135 where the protestors entered the Court with shirts that read, “Shut Down Guantanamo”); Potts v. United States, 919 A.2d 1127, 1130 (D.C. 2007) (holding that an article of clothing can be a “device” within the meaning of section 6135). Since Scott was violating the display clause, he had no authority to remain in the Supreme Court building after the Supreme Court Police told him to cover the display or leave. Therefore, Scott’s violation of section 6135 provided the “additional specific factor” that the Supreme Court Police needed to establish probable cause to arrest him for unlawful entry.
Judge Jackson rejected Scott's attempts to distinguish his situation and his reliance upon that other famous jacket case, Cohen v. California. The issue of whether the police officers could reasonably rely on the state of the law may make Scott's claim difficult to win on appeal. However, the future constitutionality of the so-called display clause criminalizing a person wearing a jacket with words such as "Occupy Everything" is far from settled.
Illinois Governor Pat Quinn today issued an "amendatory veto" on Illinois HB 183, the state legislature's effort to provide for lawful concealed carrying of handguns, after the Seventh Circuit earlier this year ruled that Illinois's ban on concealed carry violated the Second Amendment.
Governor Quinn's amendatory veto sends HB 183 back to the legislature, along with his recommended changes to the bill. The legislature can override the veto as to the original HB 183 by a 3/5 vote in both houses; it can approve Governor Quinn's recommendations, however, by a bare majority in both houses. If the legislature so approves, and if the Governor certifies that the approval meets his recommendations, the amendatory-vetoed-bill becomes law.
The Governor may return a bill together with specific recommendations for change to the house in which it originated. The bill shall be considered in the same manner as a vetoed bill but the specific recommendations may be accepted by a record vote of a majority of the members elected to each house. Such bill shall be presented again to the Governor and if he certifies that such acceptance conforms to his specific recommendations, the bill shall become law. If he does not so certify, he shall return it as a vetoed bill to the house in which it originated.
Governor Quinn objected to the very loose standards for concealed carry in HB 183. In particular, the bill allows people to carry guns into establishments serving alcohol and into the workplace, and it contains no cap on the number of guns or the size or amount of ammunition clips that may be carried. Governor Quinn also objected to the bill's override of local authority to ban assault weapons--a provision not required by the Seventh Circuit's ruling (which went only to concealed carry).
The Seventh Circuit gave the state until July 9 to write a concealed carry law. According to the Chicago Tribune, "Quinn's move also raises the possibility that the General Assembly could fail to agree on either option and leave Illinois with a wide-open gun law that even sponsors of the concealed carry law have sought to avoid."
Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary. As well they should. But much of our discussions focus on individual Justices: Is Justice Kennedy the "first gay Justice?" Is Justice Alito really rude? Is Chief Justice Roberts playing a "long game?" And what about the tumblr "Notorious R.B.G.? Or @SCOTUS_Scalia, a twitter account?
In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:
Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."
Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?
[image DonkeyHotey via]
July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Monday, July 1, 2013
The Alabama Constitutional Revision Commission is considering a proposal to rewrite a section of the state constitution that allows racially segregated schools. The provision is an embarrassment (to say the very least), but state voters can't seem to vote it out of the state constitution. (Voters failed to strike it twice in the last 10 years. The latest vote, in 2012, likely failed because some argued that the amendment didn't go far enough--because it wouldn't have repealed the provision saying that there's no constitutional right to a public education.)
This, the week after the Supreme Court struck the coverage formula for the preclearance provision in the Voting Rights Act--a case brought by Alabama's own Shelby County.
The provision, Section 256, as amended by Amendment 111, approved by voters in 1956, reads:
It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense . . . .
To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide.
The Commission today considered a new Section 256, deleting the reference to segregated schools and the lack of right to education, and stating simply that "The legislature shall establish, organize and maintain a system of public schools throughout the state for the benefit of children thereof." But the Commission couldn't agree on final language and sent the revision to a subcommittee.
The Commission also rejected a provision that would have provided a stronger veto for the governor. (The legislature can currently override a veto with a bare majority in both houses. The proposal would have required a 3/5 vote in both houses.)
The National Constitution Center recently hosted a discussion on the Battle of Gettysburg, with Ted Widmer, Sean Wilentz, Judith Giesberg, and Adam Goodheart, of the Disunion blog at the NYT. The event came on the heels of the release of their new book, Disunion, a compilation of posts from the blog.
Here's Part I:
And Part III:
Constitutional issues included slavery, secession, and emancipation, among others.