January 25, 2013
Fourth Circuit Denies First Amendment Right of Access to Twitter Orders Related to Wikileaks and Bradley Manning
At the heart of the Fourth Circuit's opinion issued today in US v. Applebaum, are orders issued under 18 U.S.C. § 2703 related to "the unauthorized release of classified documents to WikiLeaks.org, and the alleged involvement of Bradley E. Manning, a U.S. Army Private First Class." The § 2703(d) Order from a magistrate judge directed Twitter, Inc. ("Twitter") to disclose records of electronic communications of Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir, including their names, usernames, personal contact information, account information, connection records, financial data, length of service, direct messages to and from email addresses and Internet Protocol addresses for all communications between November 1, 2009, and December 14, 2010.
The magistrate's order was originally sealed, but when it was unsealed the subjects of the order moved to have it vacated and to unseal all documents relating to that order and any other orders that might have been issued to companies other than Twitter.
The panel articulated the standard to decide whether the First Amendment provides a right to access §2703(d) orders and proceedings, as
the "experience and logic" test, asking: "(1) ‘whether the place and process have historically been open to the press and general public,’ and (2) ‘whether public access plays a significant positive role in the functioning of the particular process in question."
The Fourth Circuit panel found the First Amendment claim here failed the latter prong. It discussed, without accepting, the argument that any history inquiry was meaningless because §2703(d) orders only because available when the statute was passed in 1986. But
Even assuming only the logic prong is required, this prong is not met. The logic prong asks whether public access plays a significant role in the process in question. The § 2703(d) process is investigative, and openness of the orders does not play a significant role in the functioning of investigations. Section 2703(d) proceedings consist of the issuance of and compliance with § 2703(d) orders,10 are ex parte in nature, and occur at the investigative, pre-grand jury, pre-indictment phase of what may or may not mature into an indictment. Pre- indictment investigative processes "where privacy and secrecy are the norm" "are not amenable to the practices and procedures employed in connection with other judicial proceedings."
Thus, there was no First Amendment right of access. The court also found that there was no common law right of access.
Thus, the Fourth Circuit approved the continuing secrecy of government surveillance under the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act ("SCA").
States Consider Allocating Electoral Votes by Congressional District
Virginia is leading a group of states controlled by Republicans but voting for President Obama in the 2012 election to change the way they allocate their electoral votes in the presidential election--moving from winner-take-all to allocation by congressional district, according to WaPo and HuffPo. Michigan, Ohio, Wisconsin, and Pennsylvania are also considering, or have considered, similar measures.
Currently just Nebraska and Maine allocate their electoral votes by congressional district. Both states award their other two electoral votes to the overall winner in the state. The proposal in Virginia would award its two additional votes to the candidate who wins the most congressional districts in the state.
Changing the allocation in all 50 states would have resulted in a 273-262 win for Romney in the 2012 election. (The total, 353, doesn't include D.C.'s 3 electoral votes. Even including those for Obama, however, Romney still would have won.)
The proposals stand in contrast to the national popular vote plan, an interstate compact in which participating states would award all their electoral votes to the winner of the national popular vote. But the compact has to hit a critical mass of participating states--a number that hold a majority of electoral votes. (It's currently about half-way there.)
India's Autochthonous Constitution
According to Swaminathan, India, like some other former British colonies, faced a problem at independence: the authority for its constitution came directly from Parliament, in the form of an Independence Act and Parliament-authorized Constituent Assembly. As such, "the imperial predecessor's Constitution would have remained at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as 'legal' by the Constitution of the imperial predecessor."
India had to do something to break this chain. So, like Ireland, Pakistan, Sri Lanka, and Ghana before it, India waged a "benign legal revolution," that is, the country deliberately incorporated "procedural errors" into its own constitution. Swaminathan explains:
The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act of 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act--something the Constituent Assembly did not have authorisation to do.
The errors broke the chain between India's new post-colonial constitution and Britain, thus ensuring that Parliament could not reassert its authority and creating a truly autochthonous constitution of We the People.
The United States, of course, did not have to wage a benign legal revolution to break its chain with Britain, because it was born in armed revolution.
D.C. Circuit Strikes President Obama's Recess Appointments to NLRB, Tees Case for Supreme Court
The D.C. Circuit ruled today in Noel Canning v. NLRB that President Obama's three recess appointments to the NLRB last year, on January 4, 2012, were invalid under the Recess Appointments Clause, and that the NLRB therefore lacked a quorum to issue its decision finding that the petitioner violated the NLRA. The ruling tees the issue up for likely Supreme Court review.
We've previously posted on President Obama's recess appointments and court challenges here, here, and here. Here's our post on the OLC memo concluding that President Obama had authority to make the appointments.
The case arose after President Obama appointed three people to the NLRB on January 4, 2012, when the Senate was operating under a unanimous consent agreement that provided that it would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The pro forma sessions are designed to keep the body in business so that it's not "in recess" for Recess Appointment Clause purposes, thus thwarting the President's ability to make unilateral recess appointments. (During these sessions, the Senate actually engaged in some business, including passing a temporary extension to the payroll tax and convening the second session of the 112th Congress.) The Senate did not adjourn sine die before the end of the first session of the 112th Congress, and thus according to the court the Senate did not have an intersession recess between the first and second sessions of the 112th Congress. Instead, "the First Session of the 112th Congress expired simultaneously with the beginning of the Second Session." Op. at 42.
The petitioner challenged the appointments after the NLRB, with President Obama's appointees, issued a decision concluding that he violated the NLRA. The petitioner claimed that the appointments were invalid under the Recess Appointments Clause, that the NLRB wouldn't have had a quorum without those appointees, and without a quorum it didn't have any authority to issue its decision against him.
The D.C. Circuit agreed. It ruled that the Recess Appointments Clause only authorizes intersession appointments, not intrasession appointments, and that it only authorizes appointments for vacancies that happened during the intersession recess (and not that merely existed during the intersession recess).
As to the intersession requirement, the Court relied principally on the plain text of the Clause:
[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The court explained that the phrase "the Recess" must refer to the intersession recess, because of the use of the definite article "the." If the Clause were to cover intrasession recesses, in contrast, the text would have used the phrase "a recess" or "recesses." The word "the" here identifies "recess" only as the intersession recess. The court also looked to history, structure, other text, state constitutionalism, and other sources to buttress its textual analysis. It said that the OLC's position would allow the executive to define the scope of his or her own recess appointment power and to make a recess appointment anytime the Senate broke for lunch. "This cannot be the law." Op. at 26.
This part of the ruling puts the D.C. Circuit at odds with the Eleventh Circuit and its ruling in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).
As to when the vacancy happens, the D.C. Circuit also relied principally on text, but looked to other sources, too. The court said that "happen" must mean that the vacancy arises during the recess, not that it merely exists during the recess.
This part of the ruling puts the D.C. Circuit at odds with the Second, Ninth, and Eleventh Circuits. It was also unnecessary: as Judge Griffith points out in concurrence, the court's ruling on the intrasession appointment was sufficient to vacate the NLRB's decision, without considering when the vacancies happened.
Because of the importance of the issues and the circuit splits, look for this case to go to the Supreme Court.
There's just one potential hiccup: It's not obvious that the courts have jurisdiction to hear the constitutional claims. The NLRA says that courts can consider appeals from NLRB judgments only when parties raised the issues at the NLRB, unless there are "extraordinary circumstances." The parties didn't raise the appointments challenges at the NLRB, but the court said that there were "extraordinary circumstances": the appointments objections "go to the very power of the Board to act and implicate fundamental separation of powers concerns." Op. at 11.
Daily Read: Vicki Jackson on BLAG's Lack of Standing in Windsor, the DOMA Case
In her amicus brief in United States v Windsor, submitted at the request of the United States Supreme Court, ConLawProf Vicki Jackson (pictured) vigorously argues that BLAG lacks Article III standing. (For our previous discussions of standing in the DOMA and Prop 8 cases this week, see here and here).
Jackson explains that after Attorney General Holder notified Congress that the Executive would no longer enforce DOMA given its conclusion that the statute was unconstitutional,
the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) voted 3-2 to intervene in the litigation to defend the constitutionality of DOMA. As its title suggests, BLAG is an “[a]dvisory” body, that is to be “consult[ed]” by the Speaker of the House, who gives “direction” to the General Counsel of the House, according to Rule II.8 of the Rules of the U.S. House of Representatives during all periods of this litigation.
[citations omitted]. The brief contends:
BLAG lacks standing for at least three reasons. First, BLAG has suffered no injury to a legally cognizable interest beyond the diffuse, generalized interests of all citizens that duly enacted and constitutional laws be enforced; no special prerogatives of BLAG, the House or Congress are threatened. Second, if there were any distinct legislative injury arising from the Executive Branch’s refusal to defend the constitutionality of this statute, that injury would afflict the Congress as a whole. A single house (or part thereof) does not have standing to assert that interest, and the Senate has not intervened. Third, BLAG is not the House, but an “[a]dvisory” body that lacked authority to represent the House when it moved to intervene, noticed its appeal to the Second Circuit, and petitioned this Court for certiorari.
Central to Jackson's argument is INS v. Chadha (1983). She stresses that Chadha concluded that “Congress [was] a proper party to defend [a] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit,” and distinguishing the status of intervention in Windsor. Additionally, Jackson analogizes to the primary holding in Chadha on the merits:
In Chadha, this Court emphasized that, when a house of Congress acts, it presumptively acts in a legislative capacity, that is, with “the purpose and effect of altering the legal rights, duties, and relations of persons *** outside the Legislative Branch.” If BLAG’s intervention was a legislative act, it was plainly not done through the bicameralism and presentment procedure required for such acts. If, on the other hand, BLAG’s action was not a “legislative” act, it is hard to square with Chadha’s observation that, “when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.”
The entire amicus brief casts considerable doubt on the status of BLAG as a proper party before the United States Supreme Court. It is worth a read!
January 24, 2013
Senate Passes Modest Filibuster Reform, No Talking Filibuster
Senate leaders today reached an agreement on modest filibuster reforms, according to WaPo, NYT, and others, retaining the 60-vote requirement to end a filibuster and rejecting the talking filibuster option. We last posted on this here. There appear to be two principal changes:
- The new rules will short-circuit a filibuster vote on a "motion to proceed," when the Senate takes up legislation. Opponents of measures have used this filibuster at the beginning of debate to slow up or even block legislation. The change will remove a significant procedural hurdle and pave a clearer path to passage, although opponents could still filibuster later. In exchange, opponents of legislation will be able to offer at least two amendments.
- The new rules limit debate on lower-court nominees and lower-level executive nominees to a few hours. Supreme Court nominees, circuit court nominees, and cabinet-level spots are not part of this agreement.
The talking filibuster is not part of the agreement; neither is a proposal to require opponents to muster 41 votes (instead of requiring proponents to muster 60). The 60-vote requirement to end a filibuster and advance a bill stays in place.
The Senate voted by large majorities for the measures, and Senator Reid therefore did not need to use the constitutional option.
Libel and the First Amendment in the Iowa Supreme Court
It's easy to see how writing and publishing a memoir centering on one's former spouse, especially if the theme is how "Satan (through my ex) set out to destroy my life," might lead to a defamation action in state court by the former spouse. But as the Iowa Supreme Court demonstrated in its recent opinion in Bierman v. Weier, the entwinement of the First Amendment, the state constitution, and the tort issues are far from simple to resolve.
The opinion has an excellent discussion of First Amendment Supreme Court precedent on defamation and an interesting application of last term's decision in United States v. Alvarez, the "Stolen Valor case." The defendants argued that Alvarez should be construed to invalidate libel per se presumptions because it recognized a First Amendment right to make "factually false statements." As the court stated, however, the problem with this argument "is that both opinions making up the Alvarez majority specifically highlighted defamation as a traditional area where the law was constitutional because it did not punish statements merely because of their falsity." The Iowa Supreme Court also disregarded the applicability of Citizens United to arguments invalidating libel per se as a matter of state law.
This was not merely a matter of state common law, however, for the Iowa state constitution specifically addresses the issue of libel in Article I, section 7:
Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted.
The Iowa Supreme Court emphasized that the language supported the continuance of libel per se, especially given the text that made persons "responsible for the abuse of that right."
The continued constitutionality of libel per se left open the legal status of Author Solutions, Inc. (ASI), the self-publishing venture named as a defendant for its role in producing Scott Weier's book. The status of ASI as a media or nonmedia defendant was important under the state libel law that uses a "Gertz [v. Robert Welch] -inspired framework, which distinguishes media and nonmedia defendants and reserves libel per se for private plaintiffs and nonmedia defendants." In assessing whether ASI was a media defendant, the Iowa Supreme Court found that it was, interestingly citing New York Times v. Sullivan in support of this rationale:
"It is true that Scott [Weier] paid ASI to publish his book, rather than the other way around. But this fact alone does not change the analysis. Both our precedents and the United States Supreme Court’s have accorded the same protection to media defendants when they publish advertisements as when they publish content they have paid for."
Given the heightened standard of libel per se, the majority found that there was no malice on the part of ASI and reversed the lower court's denial of ASI's motion for summary judgment. Scott Weier was less successful: the Iowa Supreme Court affirmed the district court and the plaintiffs' claims of libel, false light, and intentional emotional distress will be proceeding to trial, barring a settlement.
President to Nominate Cordray (again) to Lead CFPB
President Obama will re-nominate former Ohio AG Richard Cordray to head the Consumer Financial Protection Bureau, according to WaPo. Cordray is currently serving in that role as a recess appointee.
Recall that President Obama recess-appointed Cordray just over a year ago after Republicans made clear that they wouldn't confirm him. Republicans objected to both the CFPB and to Cordray. We posted on substantive objections here; we posted on procedural and constitutional objections here.
Cordray's nomination and another nomination expected today, former federal prosecutor Mary Jo White to head the SEC, are seen as part of the administration's drive to more tightly regulate financial markets. They promise to (again) create a stir in Congress.
Daily Read: Goldberg on Article III Standing in Prop 8 and DOMA Cases
Suzanne Goldberg (pictured) argues that the proponents of Prop 8 and BLAG supporting DOMA have serious standing problems in her piece Article III Double-Dipping: Proposition 8’s Proponents, BLAG, and the Government’s Interest, available in draft on ssrn.
Recall yesterday we recommended Marty Lederman's extensive discussion of the Article III standing issues in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing. This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional). In the case of Prop 8, the trial proceeded with the intervenors, who lost. In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.
Professor Goldberg contends that the Prop 8 proponents and BLAG are in a "Janus-faced" position: they purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws, even as the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional. She argues that this inconsistency renders the concept of the government interest incoherent for Article III standing purposes. She further argues that the Prop 8 proponents and BLAG lack a direct stake in the litigation because they lack enforcement powers. If the Court were to reach the merits, it would essentially be issuing an advisory opinion.
Goldberg's essay is worth a read as a cogent argument for the lack of standing.
January 23, 2013
Stockman, Paul Seek to Overturn Obama's Orders on Gun Control
Representative Steve Stockman (R-TX) and Senator Rand Paul (R-KY) today introduced companion bills that would overturn President Obama's series of recent orders on gun control. Politico reports here; The Hill here; and Stockman's press release is here. (Rep. Stockman, you may recall, earlier called for President Obama's impeachment over the orders.)
According to Stockman's press release, his objection is more about separation of powers than infringement on the Second Amendment, though he mentions both. As to powers, he argues that "the Constitution flatly prohibits the President from making up his own laws." Stockman's legislation, the Restore The Constitution Act, would
declare any past, present or future executive action that infringes on the powers and duties of Congress in Article I, Section 8 of the Constitution, or the Second Amendment to the Constitution or that would require the expenditure of federal funds not specifically appropriated for the purpose of executive action, is advisory only and has no force or effect unless enacted by law.
Talking Filibuster Appears Dead
Senate Majority Whip Dick Durbin (Ill.) said today that the Democrats didn't have 51 votes to pass a talking filibuster, according to The Hill. (Why 51? Because Senator Reid held open the first legislative day, on which the Senate can pass rules changes with a bare majority, in case Senator McConnell failed to agree to any meaningful reform.) Even as Senate Majority Leader Reid awaits Minority Leader McConnell's reponse to more modest reform proposals, the talking filibuster appears to be off the table.
The talking filibuster would have required a Senator who wished to filibuster to take the floor and talk, old style. It would have put an end to the silent filibuster--the practice in which a single anonymous Senator can merely threaten a filibuster and thus hold up a bill, or nominee, and Senate business--and would have required a filibustering Senator to publicize their objections . . . and themselves. While it was favored by many, Senator Durbin's announcement today means that it's almost certain not to be part of the final filibuster reform agreement.
Seventh Circuit Finds Indiana Statute Banning Sex Offenders from Social Media Unconstitutional
In its unanimous twenty page opinion in Doe v. Prosecutor, Marion County today, the Seventh Circuit concluded that the Indiana statute restricting registered sex offenders from social media is unconstitutional.
At issue was Indiana Code § 35-42-4-12, prohibiting sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.
Recall that the district judge rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open, and reasoning that many "sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims."
Reversing, the Seventh Circuit found that the statute was not narrowly tailored to serve the state’s interests, but "broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors." The opinion stressed that there were many alternative - and more specific - means by which the state could accomplish its purpose.
The court made clear that the problem was the statute's overbreadth with its caveat:
this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines.
Additionally, while subsequent Indiana statutes might meet a narrowly tailored requirement, "the blanket ban on social media in this case regrettably" did not.
Ban on Women in Combat to be Lifted
The official announcement from the Pentagon should be forthcoming on Thursday.
In November, a complaint in Hegar v. Panetta was filed in the Northern District Court of California, arguing that the policy offended the equal protection component of the Fifth Amendment. More about the case is available from the ACLU.
ConLawProfs (and students) often encounter the gendered combat exclusion in discussions of Rotsker v. Goldberg (1981) in which the Justice Rehnquist's Court upheld male-only registration for the draft finding women were not "similarly situated" to men because women were not eligible for combat.
Tunisian Draft Constitution Draws Some Praise, Criticism
Human Rights Watch wrote last week to the Tunisian National Constituent Assembly on its second draft constitution, released December 14, 2012. HRW faintly praised the Assembly for improvements since the first draft--dropping the criminalization on "the sacred" and any form of "normalization" with "Zionism and the Zionist state," including language that better protects equal rights of women--and sharply criticized the Assembly for continued problems. Among the criticisms:
- The draft fails to explicitly mention international human rights conventions and fails to specify whether human rights treaties that have been ratified by Tunisia apply directly as law in Tunisia.
- The draft includes language that protects various rights, but with provisos like "as provided for by law," or some such, suggesting that "the law" has broad leeway to interpret limitations on rights.
- The State of Emergency provision, Article 73, doesn't sufficiently define limitations or protect nonderogable rights.
- The draft provides for immunity for the president during and after office for all official acts, without allowing for prosecution for war crimes.
- Anti-discrimination provisions are at odds with other provisions limiting offices like the presidency to Muslims.
- The draft has weak guarantees for the tenure of judges and thus for an independent judiciary.
HRW also outlined a series of recommended changes.
Daily Read: Lederman on Article III Standing in Prop 8 and DOMA Cases
When the United States Supreme Court granted certiorari in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing.
This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional). In the case of Prop 8, the trial proceeded with the intervenors, who lost. In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.
This is an unusual, if not unique, state of affairs. Usual discussions of Article III standing focus on the plaintiffs rather than losing defendants who are now appellants or petitioners.
All of the posts - - - seven! - - - are worth a read, but perhaps most interesting is Lederman's discussion of the outcome of any Court decision denying standing in the Prop 8 case.
January 22, 2013
Is the Debt-Ceiling Bill Designed to Self-Destruct?
House Republicans added a provision to the temporary debt-ceiling increase in H.R. 325 that would halt congressional salaries if Congress fails to pass a budget this year. But Michael Froomkin argues at his blog, Discourse.net, that this provision, a violation of the Twenty-Seventh Amendment, could torpedo the debt-ceiling increase itself, if the provision's not severable from the rest of the bill. In other words, if a disgruntled member of Congress sued after he or she didn't get paid, a ruling that the pay holiday violated the Twenty-Seventh Amendment could take down the temporary debt-ceiling increase in the bill, as well. The result: A court, not Congress, would invalidate the debt-ceiling increase, and Congress could walk away with clean hands. As Froomkin suggests, a strategically minded opponent of the debt-ceiling increase might even have designed it this way.
As Froomkin argues, the severability question all depends on how tightly the debt-ceiling increase and the congressional pay-stoppage are linked. And Froomkin says that the more that members of Congress link the two provisions in their arguments for the bill, the more likely it is that a court would find the pay-stoppage non-severable.
The other piece, of course, is the Twenty-Seventh Amendment. There's not a lot of case-law out there--just one case, in fact, with rulings from the D.C. District and D.C. Circuit courts (and with a congressman named John Boehner as plaintiff)--but that case and the Amendment's plain text suggest that the pay-stoppage could well violate the Amendment. H.R. 325 seeks to dodge this by holding halted congressional pay in escrow. But Froomkin argues that that gambit is unlikely to work--that halting salary and holding it in escrow is by any reckoning "varying the compensation of the Senators and Representatives."
Obama Fighting (Constitutional) Fire with (Constitutional) Fire
President Obama's recent and frequent constitutional references--from those in his inaugural address to those related to his administration's gun control actions--is part of a larger strategy to promote administration policies, argues Sean Sullivan over at The Fix: "Put simply, he's fighting fire with fire." That's constitutional fire. And the fire he's fighting is the constant barrage of constitutional claims against his policies and actions. Sullivan:
When the Constitution has been brought up in the national political debate, it's typically been by the president's opponents, at least in recent years. . . .
What Obama is signaling [is] that he believes he can fight--and win--major battles on similar terms.
Sullivan says this much is clear: Obama isn't going to "let his opponents monopolize one of the nation's most revered documents in the highest-stakes political and policy debates."
Plaintiff Has Standing to Challenge DEA Stance on Marijuana, But Loses on Merits
The D.C. Circuit ruled today that a disabled veteran had standing to challenge in federal court the Drug Enforcement Agency's decision not to downgrade marijuana from a Schedule I drug. Even so, the court ruled against him on the merits. The ruling means that DEA's decision not to downgrade marijuana stands, and marijuana continues to be a Schedule I drug.
The case, Americans for Safe Access v. DEA, arose when the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana and downgrade it from a Schedule I drug. The DEA declined, and the petitioners sought APA review in federal court. Once in court, the petitioners' Article III standing became an issue, and the D.C. Circuit ordered argument on it.
The two-judge majority held that one petitioner, Michael Krawitz, a disabled veteran, had standing--and therefore that the case could move to the merits. Krawitz received pain management treatment from the VA. But as part of the program, the VA required him to sign a "Contract for Controlled Substance Prescription" that would have prohibited him from using medical marijuana. Krawitz refused to sign and turned to a non-VA physician in Oregon to obtain the referral forms required to participate in that state's medical marijuana program. Pursuant to VA policy, the VA did not pay for this. (VA policy prohibits VA providers from completing forms seeking recommendations or opinions regarding a vet's participation in a state marijuana program.)
The court ruled that Krawitz had standing--that he showed sufficient harm, causation, and redressability to get his foot in the door in federal court. Harm was easy: the court said that Krawitz's out-of-pocket expenses constituted sufficient harm. Causation and redressability were a little harder. The lynchpin for the court was that the DEA classification was the definitive classification for the federal government, including other agencies like the VA, creating a tight enough relationship between the DEA classification and the VA policy. Thus when the VA required Krawitz to sign that he'd forego medical marijuana and refused to pay for it, it did so because the DEA listed marijuana as a Schedule I drug; that's causation. And if Krawitz were to win on the merits--and get DEA to downgrade marijuana--the VA would follow suit and drop its requirement that pain management patients forego medical marijuana; that's redressability. All this means that the VA wasn't some random third-party intervenor breaking the causation and redressability chain between the DEA and Krawitz; instead, the VA policy was driven by the DEA classification. Here's how the court explained it:
Congress made clear when it passed the [Controlled Substances Act] that the [DEA's] scheduling decisions should serve as the federal government's "authoritative statement" on the legitimacy of particular narcotics and dangerous drugs. . . . When the DEA classified marijuana as a Schedule I drug, pursuant to its delegated authority under the CSA, it announced an authoritative value judgment that surely was meant to affect the policies of third-party federal agencies.
Unsurprisingly, the VA has heeded the DEA's judgment regarding marijuana, thus making the question of causation relatively easy in this case.
. . .
The only reason the VA cites for implementing [its policy on marijuana] is the classification of marijuana as a Schedule I drug. Therefore, were marijuana rescheduled to reflect its potential for medical use, the VA would have no expressed reason to retain [its policy] and VA clinicians would likely be subject to a non-discretionary duty to complete Krawitz's state medical marijuana forms.
Op. at 18-20.
(Judge Henderson wrote in dissent that Krawitz's standing arguments came too late.)
But even as the court ruled in favor of standing, it ruled against the petitioners on the merits. It held that the DEA's decision not to reclassify marijuana wasn't arbitrary and capricious--in particular, that substantial evidence supported the agency's determination that studies showing a "currently accepted medical use" do not exist.
Modest Filibuster Reform Close
Senate Majority Leader Harry Reid and Republican Leader Mitch McConnell are close to agreement on modest reforms of the Senate's filibuster, according to The Hill and WaPo. As we wrote here, Senator Reid kept the first legislative day of the Senate open in order to preserve the "constitutional option"--a change in the cloture rule by a mere majority of the Senate, as part of that body's enactment of its rules on the opening day of the Congress. (The constitutional option allows the Senate to change its rules on the first day of a new Congress under the default majority-rule rule, and not under the super-majority required by the cloture rule, Rule XXII.) Although it appears that Senator Reid will keep the legislative day open until the parties reach a final agreement, it also appears unlikely that Senator Reid will exercise the constitutional option.
Instead, reform will be relatively modest. Maybe most notably, the agreement would require the minority party to muster 41 votes to stall a bill, changing the current practice that requires the majority to find 60 votes to end a filibuster. This could be significant: it would end the practice of an anonymous hold, in which a single unnamed Senator can maintain a filibuster unless and until the majority can round up 60 votes. Other minor changes are designed to reduce delays and move business along. The talking filibuster doesn't appear to be a part of the package.
Scalia and Thomas More
Justice Scalia's appearance at President Obama's Inauguration yesterday has been much remarked because of the Justice's hat.
As ConLawProf Kevin Walsh reports, the hat was a gift from the St. Thomas More Society of Richmond, commemorating Scalia's participation in a 2010 "Red Mass" and is a replica of More's hat as portrayed in his famous portrait by Hans Holbein the Younger, 1527 (pictured right).
While Thomas More was celebrated in the play "A Man for All Seasons," a much less flattering portrait of him emerges in Hilary Mantel's award winning historical novel Wolf Hall, in which More is seen as distinctly unlawyerly, ungenerous, and perhaps pathological, especially as contrasted with the novel's hero, Thomas Cromwell.
As the late Christopher Hitchens noted, the genius of Wolf Hall wasin going beyond the Holbein portraits that defined the era, and revisioning, for example, the More portrait: "Now scrutinize the face of More and notice the frigid, snobbish fanaticism that holds his dignity in place." More, then, becomes a man who will not only burn books, but burn people. Hitchens also quotes Mantel's scene of the interrogation of More, after More has fallen out of favor. The character More says:
“You say you have the majority. I say I have it. You say Parliament is behind you, and I say all the angels and saints are behind me, and all the company of the Christian dead, for as many generations as there have been since the church of Christ was founded, one body, undivided—”