Friday, February 15, 2013
There's a growing split among circuit courts that have ruled on whether to grant an injunction pending appeal to private employers who object to the contraception mandate under HHS regs pursuant to the Affordable Care Act. The underlying issues--whether the mandate violates the Religious Freedom Restoration Act or free exercise--seem to be moving closer and closer to Supreme Court review.
(These issues are different than the issue in the other cases testing the mandate--by religious employers. Courts in those cases have held them in abeyance or dismissed them outright in anticipation of new HHS regs that exempt religious employers from the mandate. The regs would exempt religious employers, but not secular corporations owned by religious individuals.)
The Seventh Circuit ruled recently, for the second time, that a private employer was likely to succeed on its RFRA claim against the contraception mandate. That court in Grote v. Sebelius held that the corporation's owners' religious objections to the mandate, the government's likely failure to justify the mandate at strict scrutiny under the RFRA, and the owners' harm meant that the contraception mandate must be enjoined pending the company's appeal. The case echoes that court's earlier ruling in Korte v. Sebelius. (The difference between the two cases--that the company in Grote was self-insured, while the company in Korte wasn't--didn't justify different treatment, according to the court.) Both rulings drew dissents by Judge Rovner, but the Grote dissent was especially sharp and lengthy. In short, Judge Rovner took issue with the idea that the secular corporations enjoyed free exercise rights, even if the owners did.
The Eighth Circuit has lined up with the Seventh Circuit, while the Third, Sixth, and Tenth Circuits have gone the other way. (Recall that Justice Sotomayor denied Hobby Lobby's application for a stay in the Tenth Circuit case. The Seventh Circuit took account of that denial, but distinguished it, saying that the standard for a stay at the Supreme Court was much higher than the standard for an injunction pending appeal.)
These cases are on a motion for an injunction pending appeal, not the underlying merits. Still, they presage a merits ruling, as the courts consider the likelihood of success on the merits as part of the injunction analysis.
Sean Wilson (pictured) provides a compelling view of constitutional interpretation in his new book, The Flexible Constitution. His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning. Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality. (p. 83).
Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution." This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.
Thursday, February 14, 2013
The Senate this week reauthorized the Violence Against Women Act and added a provision authorizing Native American Indian tribal courts to try non-Indians for acts of violence against Native American tribal members. The provision, Section 904 of the Senate-passed VAWA, caught the attention of some on the right, who claim it's unconstitutional.
The Heritage Foundation outlined the argument in a post today. According to the post, congressional extension of tribal jurisdiction to non-Indians violates the Appointments Clause and the life-tenure provision in Article III. The reason, according to the post, is simple: tribal judges aren't appointed pursuant to the Appointments Clause, and they don't meet the requirements of Article III. They therefore can't mete out punishment against non-Indians.
To unpack this, it helps to understand the debate between congressionally delegated power to tribes versus inherent power of tribes. Advocates of the congressionally-delegated view say that tribes operate pursuant to congressional delegation, and therefore the full force of the Constitution applies. Advocates of the inherent power view say that tribes have inherent sovereignty and authority on their lands, and that they operate pursuant to their own rules and any overriding congressional requirements.
The Supreme Court has weighed in, but barely. It ruled in Oliphant v. Suquamish Indian Tribe that tribal courts lacked inherent authority over non-Indians, but it suggested that Congress could extend their authority to reach non-Indians. In United States v. Lara, the Court ruled that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try non-member Indians.
The Heritage Foundation piece takes the congressionally-delegated-power view. This means, as the piece argues, that the Constitution applies with full force over the tribal courts, and that if they exercise jurisdiction over non-Indians, they, like regular Article III courts, have to meet constitutional requirements. (You might ask why the piece didn't argue that they similarly have to meet due process requirements. The reason: Congress extended due process protections in the earlier Indian Civil Rights Act and in the VAWA itself.)
The Senate took the inherent-authority view. Thus Section 904 of the VAWA says, "the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons." (Emphasis added.)
Which view is right? Well, the Court has suggested in both Oliphant and Lara that the inherent-authority view is correct. But that view might not get five Justices on the current Court. So we're not sure how the Court would rule.
The Congressional Research Service has a terrific report on the issue here.
There are already several proposals for a Balanced Budget Amendment in the House, and National Review Online reports that Senators Mitch McConnell and John Cornyn would unveil their own bill today in the Senate. We posted on a left-leaning critique of the BBA here. Here's what NRO said about it today:
Passage of a BBA is not just implausible; it also would be unwise. Like the doomed 18th Amendment, it would enshrine partisan policy priorities in the founding document of the republic, which was meant to structure the democratic process, not rig its outcome in advance.
It would invite a hyperactive judicial intervention in the budget-making process that would throw the separation of powers completely out of balance. Previous BBA proposals explicitly banned courts from raising taxes to balance the budget but did not otherwise limit judicial enforcement. This means the judiciary might well attempt to set specific levels for every category of spending or otherwise shape budget priorities in an effort to enforce the Constitution. Such a perversion of republican government would raise the stakes of inter-branch hostility and distrust to unprecedented levels.
Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad." The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.
Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.
Dworkin's article is worth a (re)read.
For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?" Dworkin wrote:
We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.
Dworkin's voice will be missed.
February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Ronald Dworkin, renowed legal philosopher who influenced generations of legal scholars, has died.
Todays' NYT obituary calls Dworkin "a legal philosopher and public intellectual of bracingly liberal views who insisted that morality is the touchstone of constitutional interpretation."
UK's Guardian obituary says that through his "sheer intellectual brilliance and a formidable capacity for work," Dworkin managed "to be both a consummate scholar's scholar and a lawyer's lawyer," while nevertheless enjoying himself.
Tributes will undoubtedly follow.
Wednesday, February 13, 2013
Apparently upset by an image of a legislator's head being photo-shopped onto the image of a porn star's body, the Georgia legislature is entertaining a bill that would define such an act as defamation.
Georgia HB39 provides that a person commits defamation when he or she causes an unknowing person wrongfully to be identified as the person in an obscene depiction in such a manner that a reasonable person would conclude that the image depicted was that of the person so wrongfully identified.
The reasonable person standard here would probably exclude application to the upsetting image - - - which is clearly and inartfully photoshopped - - - and thus not satisfy the elements of the statute.
As for the First Amendment considerations, the reasonable person standard might serve to distinguish the statute from the Campari advertisement parody at issue in Hustler Magazine v. Falwell. But as a defamation statute, the Georgia bill fails to incorporate the public figure malice standard firmly established since 1964's NYT v. Sullivan and surely a legislator is a quintessential public figure.
The bill's combination of the defamation tort with "obscenity" is not likely to solve any First Amendment issues, especially since the bill's definition of obscene depiction is "a visual depiction of an individual displaying nudity or sexual conduct." Simple nudity as coextensive with obscenity has been constitutionally suspect since 1973's Miller v. California.
The bill is merely a bill, but it needs some serious revision for it to become a constitutional statute.
President Obama's proposals to ban assault weapons and limit the size of magazines violates the Second Amendment, according to David B. Rivkin, Jr., and Andrew M. Grossman writing in last week's WSJ. They say that the ban and limit would interfere with the Second Amendment right to bear arms for self defense--a right, they say, that ought to be applied every bit as rigorously as the First Amendment right to free speech.
Lots of gun-rights advocates have made similar claims, but Rivkin and Grossman's piece may be particularly notable: Rivkin was on the early edge of certain other constitutional claims that many did not take seriously at the time but that were nevertheless ultimately vindicated. Recall that he argued early in the debates that the universal coverage provision, or the so-called individual mandate, in the Affordable Care Act exceeded congressional authority under the Commerce Clause. (Rivkin made that argument on the pages of the WSJ, too.) Many didn't take this seriously. But last summer, the Court said he was right (although it also upheld congressional authority to enact the provision under its taxing power, which Rivkin also argued against).
Anyway, here's Rivkin's case against President Obama's proposals:
[Assault weapons] may look sinister, but they don't differ from other common weapons in any relevant respect--firing mechanism, ammunition, magazine size--and so present no greater threat to public safety. Needless to say, the government has no legitimate interest in banning guns that gun-controllers simply do not like and would not, themselves, care to own.
Also constitutionally suspect are restrictions on magazine size. There is no question that a limit of 10 rounds (as the president has proposed) or seven (as enacted by New York state last month) would impair the right to self-defense. A magazine with 10 rounds may provide adequate protection against a single nighttime intruder. But it may not: What if there are two intruders?
In short: assault weapons and 10-round magazines may be necessary for self-defense, and there's no good reason for government to restrict them.
Rivkin and Grossman argue that Second Amendment restrictions--even including things like requirements to carry gun insurance and even especially high taxes on ammunition--ought to get the full First Amendment treatment: strict scrutiny, or something close to it.
The National Constitution Center in Philly is hosting a special Presidents Day Weekend Celebration this weekend, Saturday, 2/16, through Monday, 2/18. Among the activities: a special "Presidential Tour" of the Center's main exhibition, Presidential Trivia games, and opportunities to mingle with presidential re-enactors and discuss their lives and presidencies.
Tuesday, February 12, 2013
Pam Fessler filed this story for NPR's Morning Edition this morning on some of the barriers that the federal government is likely to face if it takes on election reform. From the story:
"We don't want to turn over the running of our elections to some bureaucrats in Washington," [South Dakota Secretary of State Jason Gant] said. "We want to keep that at the local level with local elected officials."
. . .
Doug Chapin, an election expert with the University of Minnesota, worries about the impact of a partisan national fight on these often bipartisan state efforts.
ABC News today posted a story on constitutional changes that the experts would like to see. Among them:
- Drop the requirement that only natural born citizens can become president, suggested by Akhil Reed Amar;
- Amend it to deal with "the terrible problem of money in politics," by Laurence Tribe;
- Add a few words to the Fourth Amendment to deal with the issue of online privacy, by Jeffrey Rosen.
The story also quote a couple of law students, both of whom seemed to agree that while the Constitution contains timeless, enduring principles, it needs to keep up. "[I]n order for the Constitution to survive we can't apply it as it was applied in 1790 when there was no such thing as indoor plumbing."
Monday, February 11, 2013
President Obama is finally wrapping himself in the Constitution, engaging conservatives in a constitutional dialogue, and moving to retake the Constitution for progressives, writes Simon Lazarus, senior counsel at the Constitutional Accountability Center, in the New Republic.
Lazarus argues that President Obama's Constitution draws on the spirit of 1776 to promote a progressive agenda, and not one that mandates just small government. But President Obama's Constitution also "echoes that of the Reconstruction Congresses, which enacted the Thirteenth, Fourteenth, and Fifteenth Amendments." In particular, Lazarus says that President Obama sees the Constitution as authorizing Congress "to prevent private interference with the exercise of individual rights"--restricting certain private acts, and not, as some conservatives would have it, only restricting government.
Thus, in addition to yoking contemporary progressive goals to the vision of the Revolutionary War generation, Obama's emergent constitutional canon appears bent on revitalizing a cornerstone of the Civil War era's more unequivocally progressive vision. Indeed, he seems already to have sparked an incipient dialogue around that prospect.
By engaging the right on the meaning of the Constitution, Obama has broken new ground. For progressives, he has sketched a fresh template for countering their adversaries' long-unanswered constitutional narrative.
The leak of the DOJ white paper on drone attacks and its publication raise yet again the First Amendment issues surrounding prosecutions for leaks and possibily for publication.
Less than two weeks ago, the Congressional Research Service released its 33 page report, authored by legislative attorney Jennifer Elsea, entitled "Criminal Prohibitions on the Publication of Classified Defense Information."
The report centers wikileaks and Bradley Manning, but also discusses five other pending prosecutions that have received less publicity, including the Administration's attempt to compel New York Times reporter James Risen to testify
at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified
information to Mr. Risen that formed the basis of part of Risen's book, State of War: The Secret History of the CIA and the Bush Administration.
The report considers the statutory frameworks, problems such as jurisdiction and extradition, other legislative proposals, and - - - in six pages - - - the constitutional issues. While brief, the First Amendment discussion is nevertheless a good review and a good reminder that the law is deeply unsettled even with respect to classified information.