Friday, July 19, 2013

Justice Stevens's Dissent in Shelby County

Justice John Paul Stevens in the New York Review of Books writes a thoughtful "dissent" in the Court's ruling in Shelby County around his review of Gary May's outstanding book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic).  Justice Stevens's piece is mostly an indictment of Chief Justice Roberts's majority opinion in Shelby County, based on some of May's study of voting discrimination; but he also has quite kind things to say (and justifiably so) about May's excellent history.  (Our posts on Shelby County itself are collected here.)

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Justice Stevens writes that May takes a longer, more detailed view of the history of voting than Chief Justice Roberts did in Shelby County--a view that Justice Ginsburg also took in her dissent in that case.  He notes that Chief Justice Roberts didn't even mention anything before 1890 in his opinion, and glossed over significant details since.

And Justice Stevens takes on Chief Justice Roberts's new-found doctrine of "equal state sovereignty"--a doctrine that drove a good part of the result.  Justice Stevens says that unequal treatment of states is woven right in to the fabric of the Constitution itself.  In particular, the three-fifths clause gave southern states a "slave bonus" in political power, giving those states disproportionate representation and even leading to the election of Thomas Jefferson over John Adams in 1800.  If the original text of the Constitution itself can treat states so dramatically differently, why this new doctrine of equal state sovereignty?  (We posted on this new doctrine here.)  (It can be no answer that the Reconstruction Amendments abolished the three-fifths counting system, for the Reconstruction Amendments themselves were specifically designed to give Congress power over the states, and led to dramatically different treatment of the states.  It similarly can be no answer that the Tenth and Eleventh Amendments protect state sovereignty (even if they do), because the Reconstruction Amendments came after them.  As last-in-time, they at least inform the meaning of the earlier amendments, even if they don't do away with them entirely.)

SDS

July 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, History, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

First Amendment Whistleblowers? Government Employees Reveal Trayvon Martin's Cell Phone and Tsarnaev's Surrender Photos

While the trial of famous whistleblower Bradley Manning continues and the fate of even-more-famous whistleblower Edward Snowden remains unresolved, two other government employee whistleblowers involved in high profile cases have been terminated from employment and possibly implicate Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions.  Recall that earlier this year the United States Supreme Court declined to grant certiorari in two cases presenting a conflict in the Circuits regarding interpretations of Garcetti.

 The reported facts involving Ben Kruidbos, a director of information technology for the prosecutor's office in the racially-charged and controversial prosecution of George Zimmerman for the death of Trayvon Martin, are closely analogous to Garcetti

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[image of Trayvon Martin by Shepard Fairey via]

Kruidbos testified at an early June pre-trial hearing that prosecutors failed to turn over evidence extracted from Martin's cell phone to the defense and thus violated the mandate of Brady v. Maryland.  After the prosecution's closing arguments, Kruidbos was terminated in a letter that mentioned numerous flaws, including wrongly retaining computer records.  Kruibdos will reportedly bring a whistleblower action under state law; but if he raises a First Amendment claim, Garcetti will be an important obstacle.

 

The reported situation involving police photographer Sergeant Sean Murphy is less analogous to Garcetti and may even be closer to the classic 1968 case of Pickering v. Board of Education in which the teacher Pickering wrote a letter to the newspaper.  Yet unlike Pickering, Sgt. Murphy was not acting as an ordinary citizen, but revealing hundreds of images that he possessed by virtue of his public employment.

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[Rolling Stone Cover via]

  Murphy, reportedly "incensed by the controversial Rolling Stone magazine cover for a story about accused Boston Marathon bomber Dzhokhar Tsarnaev," has reportedly now been relieved of his duties with a hearing pending.  Whatever happens to the police photographer, it may now be that the controversial Rolling Stone cover photo (one that was also published on the front page of the NYT) has been eclipsed by even more controversial photos.

Both Kruidbos and Murphy would make terrific in-class exercises or discussions, especially if used together, as a means of exploring First Amendment protections for government employees.

RR

July 19, 2013 in Cases and Case Materials, Current Affairs, First Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

Second Judge Rejects Anti-Force-Feeding Case

Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them.  The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim.  Here's our post on the first.

Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.

Judge Collyer went on to address the merits, too.  She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide.  Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.

SDS

July 18, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Al-Awlaki on the Drone That Killed His Grandson

Nasser al-Awlaki writes in the NYT today that "[t]he Obama administration must answer for its actions and be held accountable" for the targeted killing of his grandson, Abdulrahman.  Al-Awlaki is also the father of Anwar al-Awlaki, also targeted and killed in a drone strike.

Al-Awlaki writes just a day before the United States District Court for the District of Columbia will hear oral arguments on the government's motion to dismiss his case (on Friday).  [UPDATE: The argument is tomorrow, Friday.]  We previously posted on that case here; the Center for Constitutional Rights has its case resource page here.  The government argues that the issue is a political question, that special factors counsel against a monetary damages remedy, and that officials enjoy qualified immunity.

Al-Awlaki's earlier suit, to stop the government from killing his son Anwar, was dismissed.  That court ruled that al-Awlaki lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.

Here's our post on the DOJ white paper, the administration's analysis (leaked) on why targeted killing of U.S. citizens is legal.

SDS

July 18, 2013 in Cases and Case Materials, Fundamental Rights, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

Secret Surveillance Court May Pull Back Curtain

Scott Bombay, over at Constitution Daily, reports on a recent order of the Foreign Intelligence Surveillance Court, or FISC, directing the Justice Department to conduct a "declassification review" of a April 25, 2008, ruling and legal briefs involving Yahoo!  The move could lead to release of documents that reveal some of the FISC's secret workings--in particular, according to Yahoo!, "how the parties and the Court vetted the Government's arguments supporting the use of directives" to gather information about subscribers without their knowledge.  (Yahoo!'s interest is in showing that it vigorously defended its users' privacy.)

But Bombay notes that when the Justice Department finishes its classification job, there may not be much left of the ruling or the briefs to help us understand much of anything.

FISC Presiding Judge Reggie Walton ordered the Justice Department to report back to him by July 29 about when the documents could be ready for public inspection.

We posted on the recent spate of criticism over the FISC's secrecy here.

SDS

July 17, 2013 in Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Authority for ACA Delay

Simon Lazarus argues at The Atlantic that the White House's delayed enforcement of the employer mandate is legal.  We previously posted on this here and here.

Lazarus says, referencing Assistant Secretary for Tax Policy Mark Mazur's letter to Congressman Fred Upton, that delayed enforcement, or temporary postponements, of tax reporting and payment requirements are routine across Republican and Democratic administrations.  Moreover, the administration's delay is well within the courts' zone of tolerance under the Administrative Procedure Act:

To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed."  But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering.

In other words, the courts give the administration some room, and the administration's delayed enforcement of the employer mandate, just one year while the administration gears up for it, is well within that space.

Mazur's letter also cites the IRC:

The Notice [of delayed enforcement] is an exercise of the Treasury Department's longstanding administrative authority to grant transition relief when implementing new legislation like the ACA.  Administrative authority is granted by section 7805(a) of the Internal Revenue Code.

This authority has been used to postpone the application of new legislation on a number of prior occasions across Administrations. 

SDS

July 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

EFF Challenges NSA Surveillance Program

The Electronic Frontier Foundation, on behalf of a bevy of organizations, filed suit against the NSA in the Northern District of California to stop its surveillance program and to return any information retrieved.  The complaint in First Unitarian Church of Los Angeles v. NSA argues that the "Associational Tracking Program"--the surveillance program that received so much recent attention with the release of Foreign Intelligence Surveillance Court Judge Roger Vinson's ruling ordering the disclosure of domestic phone records--violates the organizations' and their members' First, Fourth, and Fifth Amendment rights.

We previously posted on EPIC's case taking a different route--a petition for a writ of mandamus directly with the Supreme Court.

SDS

July 17, 2013 in Association, Cases and Case Materials, Fifth Amendment, First Amendment, Fourth Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Delays on ACA's Mandates

In response to the White House announcement that it will delay enforcement of the so-called employer mandate in the Affordable Care Act, House Republicans introduced two bills, H.R. 2667 and H.R. 2668, that would amend the ACA to delay the effective date of the employer mandate and the individual mandate, respectively.

The White House promised a veto, saying that legislation authorizing a delay for the employer mandate is unnecessary (because according to the White House it can do this unilaterally) and that legislation authorizing a delay for the individual mandate would raise health insurance premiums and result in fewer insured.  

The bills were clearly designed to highlight the Republicans' complaint that the administration is treating businesses more favorably than individuals and to force the administration to own up to its more favorable treatment of businesses.  The White House didn't bite.  (The Hill covered the politics here.)

But there's still this problem: It's not at all clear on what authority the administration can delay the enforcement of the employer mandate.  As we wrote earlier, the ACA says that the employer mandate "shall apply to months beginning after December 31, 2013."  That doesn't leave much wiggle room.

If the administration doesn't enforce the employer mandate until later, it's not clear that anyone could complaint (that is, that anyone would have standing to sue in federal court to compel enforcement).  So the administration, as a practical matter, may not need a legal theory for delayed enforcement.  

SDS

July 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 16, 2013

More on the Aftermath of Windsor (DOMA) and Perry (Prop 8) decisions: California, Pennsylvania, Arkansas, North Carolina Litigation

The Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, have not settled the matter of the unconstitutionality of same-sex marriage restrictions. 

In what promises to be a continuing series, here are a few highlights:

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In California, the home of Proposition 8, the litigation centers on Prop 8's constitutional status given that the Supreme Court held that the proponents did not have standing to appeal the federal district judge's holding that Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.  The original injunction was stayed, and again stayed by the Ninth Circuit even as it affirmed the district judge, but after Perry, the Ninth Circuit dissolved the stay amid questions about the effect of Perry which we discussed here.

The proponents of Prop 8 have moved (back) to the state courts, filing Hollingsworth v. O'Connell on July 12 seeking a stay from the California Supreme Court.  Their basic argument is that a single federal judge should not have the power to declare a law unconstitutional for the entire state and they seek a mandate forbidding county clerks from issuing same-sex marriage licenses.  On July 16, the California Supreme Court declared - - - as a docket entry and without opinion - - - "The request for an immediate stay or injunctive relief is denied." It also granted the motions for counsel to proceed pro hac vice, so the case will presumably be moving forward. 

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In Pennsylvania, a complaint in Whitewood v. Corbett was filed July 9, as a new constitutional challenge to the state's "little DOMA" provisions passed the same year as the federal DOMA, 1996  - - - 23 Pa. Consolidated Statute §1102 (defining marriage as between one man and one woman) and 23 Pa. Consolidated Statutes §1704 (declaring one man-one woman marriage as the strong public policy of state and refusing to recognizing same-sex out of state marriages).  The Complaint interestingly quotes and cites language from Windsor several times. For example:

¶10. The exclusion from marriage undermines the plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v.Windsor, No.12-307, Slip Op., at 18 (U.S. June 26, 2013).  Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells[same-sex couples and all the world- that their relationships are unworthy" of recognition. Id. at 22-23.  And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23.

The Attorney General for Pennsylvania, Kathleen Kane, has reportedly declared she will not defend the constitutionality of the state statutes barring same-sex marriage. The Pennsylvania Governor, Tom Corbett, the named defendant and a Republican, as well as the state legislature, are presumably studying the holding regarding BLAG's standing in Windsor.

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In Arkansas, the complaint in Wright v. Arkansas was filed in state court on July 2.  Arkansas has both a statute and constitutional amendment DOMA (the belt and suspenders approach).  The 29 page complaint does not quote or cite Windsor, but does claim that the Arkansas prohibition of same-sex marriage violates the Due Process and Equal Protection Clauses of both the state and federal constitution, as well as violating the Full Faith and Credit Clause.  First reports are that the state will defend the lawsuit.

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In addition to new complaints filed post-Windsor (Perry), ongoing litigation will certainly be changed.  For example, the North Carolina federal court complaint in Fisher-Borne v. Smith challenging North Carolina's failure to provide so-called second-parent adoption is being amended - - - reportedly with agreement of the state - - - to include a claim challenging the state's prohibition of same-sex marriage. 

While one message of Windsor and even Perry could be understood as being that marriage, same-sex or otherwise, is a matter of state law, another message of Windsor is certainly that there are constitutional problems prohibiting same-sex marriage. 

 

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With a patchwork of state laws, this is a fertile landscape for continuing litigation.

RR
[all images Wikimedia; final image here]

July 16, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fourteenth Amendment, Interpretation, News, Recent Cases, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, July 15, 2013

Judge Strikes Restrictions on Guantanamo Detainees' Access to Counsel

Judge Royce C. Lamberth (D.D.C.) ruled last week in In re Guantanamo Bay Detainee Litigation that Joint Detention Group, or JDG, restrictions on Guantanamo detainees' access to counsel violated the detainees' right to habeas proceedings in federal court.  The ruling was the second last week that invoked an increasingly personal challenge to President Obama and his policies on detention at Guantanamo Bay.  We posted on the other case, involving forced-feeding, here.

The court struck new and invasive search protocol for detainees before and after they meet with counsel; restrictions on the locations within the facility where certain detainees can meet with counsel; and even the new vans that guards use to transport detainees to meetings with counsel.  (The new vans are designed such that detainees have to sit in stress positions while traveling to their meetings with their attorneys.)  The court struck the restrictions under Turner v. Safley (1987), which set out factors to balance the interests in prison administration against the prisoners' fundamental rights.  In short, the court held that the restrictions had no "valid, rational connection" to the legitimate government interest of security, and that the government could serve that interest in other ways without unduly affecting the prison.

The case is notable for its close oversight of the conditions at Guantanamo that interfere with the detainees' access to their attorneys, and thus their access to habeas.  It's also notable for the courts increasingly personal appeals to, and critiques of, President Obama, his announced policies, and the way those policies play on the ground.  Judge Lamberth started the opinion with this:

On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo Bay, that "[w]here appropriate, we will bring terrorists to justice in our courts and our military justice system.  And we will insist that judicial review be available for every detainee."  This matter concerns whether the President's insistence on judicial review may be squared with the actions of his commanders in charge of the military prison at Guantanamo Bay.  Currently, it cannot.

SDS

July 15, 2013 in Cases and Case Materials, Fundamental Rights, Habeas Corpus, News, Opinion Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

Free Speech Protection for Flashing Headlights?

Amy Feldman over at Constitution Daily writes that flashing headlights enjoy some First Amendment protection.  In particular, Feldman says that courts in Florida, Utah, and Tennessee have all ruled that flashing headlights are protected speech, and that a headlight flasher can't be prosecuted for obstructing justice for flashing headlights to alert oncoming traffic of a speed trap.

Still, Feldman says that headlight flashers' civil claims against the police for money damages for violating their First Amendment rights have been far less successful.

SDS

July 15, 2013 in First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)