February 23, 2013
Second Amendment Doesn't Protect Concealed Carry, Tenth Circuit Rules
A three-judge panel ruled yesterday in Peterson v. Martinez that the Second Amendment doesn't protect a person's right to carry a concealed weapon in public. The court didn't even apply a particular level of scrutiny or other constitutional test, because it ruled as a threshold matter that the Second Amendment doesn't even apply--that concealed carry doesn't even come within the Second Amendment's sweep.
The plaintiff in the case challenged a Colorado law that allows concealed carry permits for Colorado citizens only (and not out-of-staters). The plaintiff was a Washington resident, and he therefore didn't qualify. He argued that the ban on concealed carry for out-of-staters violated the Second Amendment, the right to travel, and Article IV Privileges and Immunities.
In ruling against the plaintiff on his Second Amendment claim, the court quoted Robertson v. Baldwin (1897), which said that "the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons." The court recognized this as dicta, but said that it followed Supreme Court dicta nearly as closely as it followed holdings, and, in any event, the Court in neither Heller nor McDonald clarified things. (If anything, the court said, those cases only strengthened the Robertson language.) Moreover, the court said that bans on concealed carry are "longstanding." For these reasons, it ruled that the Second Amendment didn't even apply--that concealed carry doesn't fall within the Second Amendment's protection.
Judge Lucero concurred, writing that even if concealed carry fell within the Second Amendment, Colorado's ban on concealed carry for out-of-staters would satisfy the appropriate constitutional test--intermediate scrutiny--because of the state's interest in public safety, and because much of the information necessary to determine whether an individual is qualified for concealed carry is kept in locally maintained databases. In other words, the state couldn't promote its interest in public safety by licensing out-of-staters, because it couldn't get the information necessary to determine whether they qualified based on other criteria.
The court also rejected the plaintiff's right-to-travel and Article IV claims. As to the right to travel, the court said that Colorado's ban isn't anything like the kinds of infringements on the right that other courts, including the Supreme Court, have recognized. As to Article IV, it said that concealed carry is not a privilege or immunity protected by Article IV, as evidenced by the longstanding bans on concealed carry (the same reason why it ruled that concealed carry isn't covered by the Second Amendment).
The ruling came the same day as the Seventh Circuit's en banc ruling overturning Illinois's law banning carrying ready-to-use guns in public. The two bans are different, though, and the courts' approaches are, too. Thus the Seventh Circuit looked to whether carrying a ready-to-use gun outside the home goes to self-defense; it said that it did, and that Illinois's ban thus violated the Second Amendment. The Tenth Circuit looked to whether concealed carry even comes within the Second Amendment's reach. It looked to history to conclude that it doesn't, and thus upheld Colorado's ban on concealed carry for out-of-staters.
Daily Read: Andrew Cohen in The Atlantic on Shelby and the Voting Rights Act
Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.
Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder . The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.
Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy. Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle." Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute. Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."
Cohen concludes that the stakes in Shelby are very high:
If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.
Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.
February 23, 2013 in Courts and Judging, Current Affairs, Elections and Voting, Fifteenth Amendment, History, Interpretation, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack
February 22, 2013
Padilla Rule Does Not Apply Retroactively
The Supreme Court ruled this week in Chaidez v. United States that the rule announced in Padilla v. Kentucky (2010)--that a criminal defense attorney has to advise his or her client of the deportation risks of a guilty plea--does not apply retroactively to cases already final on direct review.
Retroactivity is governed by the rule in Teague v. Lane (1989). Under that case, a person whose conviction is already final may not benefit from a "new rule" announced in a subsequent case. That is: If the Court crafts a "new rule," it doesn't apply retroactively. Only the application of a settled rule applies retroactively. Thus the question here was whether the Padilla rule--that an attorney provides ineffective assistance of counsel under Strickland v. Washington by failing to advise the client that he or she could be deported if he or she pleads guilty--is "new."
The Court in Chaidez said that the usual Strickland/IAC case does not produce a new rule, and therefore would apply retroactively. But it also said that Padilla was a different sort of IAC case. It was different because the Court in Padilla had to first determine whether the Strickland/IAC analysis applied at all to a case like that--a case involving collateral, not direct, consequences of an attorney error. That was an open question before Padilla--and one that many states had resolved against the criminal defendant. Therefore when the Court announced its rule in Padilla, it broke new ground: it answered an open question, and it answered it in a way that cut against a good deal of state and lower federal court jurisprudence. This, it said in Chaidez, meant that Padilla set out a new rule, and that it would not apply retroactively.
Justices Sotomayor, joined by Justice Ginsburg, dissented, arguing that Padilla did not set out a new rule, but instead simply applied the Strickland rule to a new set of facts.
Seventh Circuit Denies Review of Gun Ruling
The Seventh Circuit today denied en banc review of its earlier three-judge panel decision in Moore v. Madigan overturning Illinois's prohibition on carrying a ready-to-use gun outside the home. The panel held that the prohibition violated the Second Amendment. Today's denial reaffirms that ruling and sets the case up for potential Supreme Court review. (As of this writing, Illinois AG Lisa Madigan's press office couldn't say whether the state would seek Supreme Court review.)
Recall that the case challenged Illinois's prohibition on carrying guns outside the home. The earlier panel held that the text, history, and recent precedent on the Second Amendment all supported the conclusion that the Second Amendment right to self-defense extends outside the home. Judge Posner wrote that opinion; Judge Williams dissented.
Judge Hamilton, joined by Judges Rovner, Wood, and Williams, dissented from today's denial of en banc review. The dissent echoed Judge Williams's earlier dissent--that the majority's reading stretches the Supreme Court's holdings in Heller and McDonald, both of which turned on a right of self-defense in the home:
First, extending the right to bear arms outside the home and into the public sphere presents issues very different from those involved in the home itself, which is all that the Supreme Court decided in [Heller] and [McDonald]. I will not repeat the debate in the panel opinions reviewing the historical and empirical evidence, for that debate was, in the majority's view, essentially dicta. The core of the panel majority's reasoning is that because there is a need for self-defense outside the home as well as in, Heller and McDonald should extend to public carrying of loaded firearms. . . . The logic has some appeal, but its simplicity overlooks qualitative differences between a private home and public streets and buildings that must be considered as we try to interpret [those cases].
Judge Hamilton also noted that the majority's approach sets the Second Amendment test somewhere between rational basis review and strict scrutiny, thus allowing a range of gun regulation, even if not an outright ban on carrying guns outside the home:
- reasonable limits on who can carry a gun outside the home, including training and proficiency requirements;
- reasonable limits on where qualified persons can carry firearms in public;
- reasonable limits on how qualified persons may carry firearms (e.g., loaded or not, concealed, etc.);
- reasonable limits on which firearms may be carried; and
- allowing private bans (by bar owners, restaurant owners, and the like) on firearms.
February 21, 2013
State Court Did Not Lack Jurisdiction Over Malpractice Claim in Patent Suit
The Supreme Court ruled yesterday in Gunn v. Minton that a federal statute granting jurisdiction over cases related to patents to federal courts alone did not mean that a state court lacked jurisdiction to hear an attorney malpractice case that grew out of such a patent case. Let's unpack that:
Minton brought a patent infringement suit in federal court and lost. Minton's attorneys didn't timely raise an argument that he thought was a winner, and the federal courts held that he waived it. So he brought a malpractice suit against his attorneys in state court for waiving the argument. He lost there, too. On appeal, he argued that federal courts had exclusive jurisdiction over the malpractice claim, and that the state trial court (which ruled against him) lacked jurisdiction.
Minton's argument turned on two points. First, 28 U.S.C. Sec. 1338(a) gives federal courts exclusive jurisdiction over any case "arising under any Act of Congress relating to patents." Next, his malpractice claim required the court to determine whether his waived argument in the original case--an argument based on federal patent law--would have gone his way. (If the waived argument would have gone his way, he might've succeeded in arguing that his attorneys engaged in malpractice by raising it too late.) In short, according to Minton: federal law requires that only federal courts determine issues of patents, and his malpractice claim turned on an issue of patents (even if a hypothetical one).
The Supreme Court disagreed. In a unanimous opinion by Chief Justice Roberts, the Court wrote that Minton's patent claim was, indeed, hypothetical--a case within a case--and that the state court's ruling on it (as part of the malpractice case) wouldn't have had any significant national impact. The ruling was based on the three factors in Grable & Sons Metal Products v. Darue Engineering (2005). That case said that when federal law didn't actually create the cause of action (as here, because Minton's claim was based on state malpractice law), the case can "aris[e] under" federal patent law only if it "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." The Court ruled that Minton's case didn't satisfy the "substantial" part of that test, because the patent question was merely hypothetical and wouldn't have any significant national impact.
Can States Limit Government Information to Their Own Citizens?
The Supreme court heard oral arguments yesterday in McBurney v. Young, a case testing whether a state's freedom of information law, or FOIA, can limit access to government information to its own citizens consistent with the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause. (Together these provisions restrict states in discriminating against out-of-staters in the exercise of fundamental rights or important economic interests, or in interstate commerce.) The case was brought by two out-of-staters against Virginia after the state denied them access to records related to the state's enforcement of a child support order and state property records collected for clients as part of a business. Virginia is one of only three states that restricts its FOIA records to in-staters.
The case is tough, because it's not obvious that Virginia's restriction is a restriction on interstate commerce (in violation of the Dormant Commerce Clause), and it's not obvious that the access that the petitioners seek is the kind of right that they, as out-of-staters, should enjoy with respect to Virginia.
The questions from the bench went right to these points. The Court was concerned about whether Virginia's restriction was, in fact, a restriction on commerce, or whether it was merely a law, not a commercial regulation, that had at most an incidental effect on interstate commerce. (The Dormant Commerce Clause points go to the property-records seeker, not the child-support seeker.) In other words: does the Dormant Commerce Clause even apply, given that this may not be a regulation of commerce?
Justices were also concerned about the magnitude of the effect, on both sides. As to the petitioners, they wondered why the cost to the petitioner wasn't negligible. After all, any out-of-stater could simply hire an in-stater for a nominal fee to file their request and thus dodge the restriction. As to the state, they wondered why the cost to the state in providing equal access to its records was significant. The burden of addition requests from out-of-staters didn't seem to be much.
Finally the Justices wondered whether Virginia shouldn't be allowed to restrict access to its records, given that its law is designed to provide access to government information to ensure good government--a concern that applies uniquely to Virginians. On this point, several Justices compared the right to access to the right to vote, and noted that out-of-staters don't get it. In short: Shouldn't Virginia be able to keep its records to its own state citizens? The question goes at least in part to the purpose of Virginia's FOIA--to provide information on governance (as the state would have it), or to restrict information in restraint of free trade (as the petitioner argued).
The parties didn't provide terrific answers to any of these questions. But counsel for the petitioner did note that the challenge was as applied, not facial. This could allow the Court to rule narrowly in favor of this individual, without overturning the restriction as to anyone else. But even that result seems likely only if the Court can get over two threshold problems. First, the restriction is not a direct discriminatory regulation of interstate commerce (even if it may have an indirect effect on interstate commerce in this case). Next, Virginia is certainly able to restrict some of its state functions to its own citizens. The question for the Court: Is this one of them?
February 21, 2013 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Privileges and Immunities, Privileges and Immunities: Article IV | Permalink | Comments (0) | TrackBack
A Drone Court . . . in the Executive Branch?
While many continue talking about a drone court in the judicial branch, Neal Katyal wrote in the NYT in favor of a drone court in the executive branch. Katyal argues that an executive tribunal comprised of national security experts, with congressional oversight, is a better tailored way to ensure accountability in the administration's use of drone strikes for targeted killings. The proposal splits the difference--or takes the best of both approaches--between the administration's current policy (which, it says, includes an internal executive branch review by experts, but with no independent oversight) and a full-fledged drone court in the judicial branch.
According to supporters, the drone court would provide a check to the administration's use of drones for targeted killing of Americans overseas, in the spirit of the FISA court. But ideas so far locate the court in the judiciary. Katyal sees a problem with that:
There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.
But putting oversight authority in the executive branch, staffed by experts, would solve that problem. And Katyal says that an executive branch "court" could still be subject to a check--by Congress:
The adjudicator would be a panel of the president's most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review. Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.
As to explaining to Congress--and shifting gears just slightly--it's now widely reported that the White House is refusing to disclose DOJ memos justifying its targeted killing program. Instead, to gain bi-partisan support for John Brennan to lead the CIA, the administration is negotiating with Republicans to provide more information on the attacks in Benghazi in order to gain their support for Brennan.
Daily Read: Deirdre Bowen on DOMA and Empiricism
Does the Defense of Marriage Act (DOMA) accomplish the purpose of defending opposite-sex marriage? This question, or at least some version of it, is at the heart of the Supreme Court's consideration of United States v. Windsor, as well as of Hollingsworth v. Perry to the extent that Prop 8 is considered a state DOMA.
In a new article, I Wanna Marry You: An Empirical Analysis of the Irrelevance and Distraction of DOMAs, available in draft on ssrn, LawProf Deirdre Bowen (pictured) argues that the numbers simply don't add up to providing support for the proposition.
As her central task, Bowen takes as her comparators states with DOMAs, including constitutional amendments and statutes, and states without DOMAs and examines their marriage and divorce rates from 1999-2010 to discover whether DOMA correlates with marital stability and strength. Her analysis "suggests that DOMA states do not fare any better than non-DOMA states in terms of the strengthening marriage" and in fact, "DOMA states tend to have lower marriage rates, larger declines in the trend towards marriage, and greater divorce rates."
Her empirical query answered, Bowen the contends that not only is DOMA irrelevant, it serves as a distraction from the real threats that certain economic and social policies pose to family stability, especially with regards to children. Whatever the Court decides, she implies, will not be sufficient to solve the problem of family volatility.
February 20, 2013
Ninth Circuit Allows Prisoner Wiccan Claim to Proceed
In its opinion in Hartmann v. California Department of Corrections and Rehabilitation (CDCR), a panel of the Ninth Circuit reversed in part a district judge's dismissal on a complaint by prisoners' regarding the availability of Wiccan paid-chaplain positions.
The operative policy maintained paid full-time and part-time chaplain positions only for adherents of five faiths: Catholic, Jewish, Muslim, Native American, and Protestant. At the heart of the plaintiffs' claims was the allegation that there are more Wiccan prisoners at the women's prison than prisoners of the other faiths.
Interestingly, the plaintiffs did not prevail on their Free Exercise claim under the First Amendment. Affirming the district judge, the Ninth Circuit panel wrote that even accepting the allegations as true,
while Plaintiffs may be better able to exercise their religious beliefs with the assistance of a paid full-time Wiccan chaplain, it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice. . . . The Free Exercise Clause does not require prison administration to provide Plaintiffs with more than that which they are currently receiving—i.e., the services of staff chaplains and a volunteer Wiccan chaplain.
On the other hand, the CDRC's choice to provide paid chaplains for five more established religions risks an Establishment Clause violation. The panel, assuming again that the allegations were true, held that the prison administration created staff chaplain positions for five conventional faiths, "but fails to employ any neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources used in accommodating inmates’ religious exercise needs." the panel provided some guidance to the lower court (and counsel): at a minimum, a court would have to ascertain whether paid staff chaplains work only at the women's prison or are required to travel to other prisons, jails, and correction facilities in the State and there could be a survey of inmate religious affiliation in the women's prison population and the broader CDCR prison population.
The panel also considered the California constitutional claims as well as the RLUIPA, equal protection, and the proper defendants. But the case is noteworthy for its illustration of the relationship between Free Exercise and Establishment Clause challenges.
[image: Wiccan symbol via]
February 19, 2013
Can a Legislature Criminalize Legislation?
A bill introduced in the Missouri legislature would criminalize the introduction of other legislation. HB 633 would amend the state statutes to provide:
Any member of the general assembly who proposes a piece of legislation that further restricts the right of an individual to bear arms, as set forth under the second amendment of the Constitution of the United States, shall be guilty of a class D felony.
The bill is likely unconstitutional under its state constitution.
The Missouri state constitution, like the United States Constitution, Art. I §6, has a "speech or debate" clause that is generally construed to protect legislative action. Missouri Constitution Art. III §19, "legislative privileges," provides:
Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during the session of the general assembly, and for the fifteen days next before the commencement and after the termination of each session; and they shall not be questioned for any speech or debate in either house in any other place.
The Missouri bill seems to fall outside the general purpose of legislative privilege provisions that are intended to protect the legislature from overreaching by other branches. Nevertheless, the Missouri legislature's criminal provision would call legislators into courts to "be questioned" for their legislative acts.
[image: Missouri State Capitol via]
Court Tests Dog Sniffs With Common Sense
A unanimous Supreme Court today rejected a defendant's challenge to a dog sniff, and the evidence that it led to, ruling that,
[t]he question . . . is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.
Op. at 12. Oh, and then this: "A sniff is up to snuff when it meets that test."
The case, Florida v. Harris, arose out of a defendant's challenge to a dog alert that led an officer to search his vehicle and find ingredients for manufacturing methamphetamine. But the dog, Aldo, wasn't trained to alert for the particular items that apparently triggered the alert (like pseudoephedrine). And in a surprise twist Aldo later alerted to the same vehicle, driven by the same defendant (then out on bail), but the subsequent search this time turned up nothing.
The defendant, Harris, moved to suppress, challenging Aldo's reliability. In particular, Harris claimed that Aldo was unreliable because he alerted to items that he wasn't trained to alert to (in the first stop), and because he alerted to nothing (in the second stop). The state produced evidence of Aldo's training, but Harris didn't challenge that.
The Florida Supreme Court ruled for Harris. It said that the state had to produce a wide array of evidence, including Aldo's field-performance records, in support of Aldo's reliability. This it didn't do.
The Supreme Court disagreed. Justice Kagan wrote for the unanimous Court that the proper test is practical and common-sensical, based on the totality of the circumstances, and not on rigid rules or mechanical inquiries. In other words, the trial court should allow the parties to make their best cases on Aldo's reliability, including evidence of training and sometimes even field records, and evaluate the evidence based on the totality of the circumstances--just as it would with any other probable cause determination, using the test quoted above.
Detention Incident to Search Warrant Doesn't Stretch a Mile
The Supreme Court ruled today in Bailey v. United States that officers can't detain a suspect incident to the execution of a search warrant a mile away from the property searched. The ruling underscores the geographic limit to the detention authority in Michigan v. Summers, allowing a detention incident to the execution of a search warrant even without probable cause. (Summers is a narrow exception to the general probable cause requirement under the Fourth Amendment.) The case says that the Summers rule is "limited to the immidate vicinity of the premises to be searched."
While the ruling favors Bailey and a geographically-bound reading of the Summers exception, the evidence that Bailey sought to exclude may ultimately make its way into the case on a different rationale. In short, this ruling ultimately might not be a game changer for Bailey's criminal case.
The case started when officers went to Bailey's apartment to execute a search warrant. (Nobody challenged the search warrant.) Officers saw Bailey and another man leave the apartment in a car, and they followed them. Officers pulled Bailey over about a mile from the apartment, patted him down, and found a ring of keys that they later discovered opened the apartment. After they found a gun and drugs in the apartment, they charged Bailey. Bailey moved to suppress the apartment key and statements he made when he was stopped. The state argued that the officers validly detained him pursuant to the execution of the search warrant, under Summers.
The Supreme Court ruled for Bailey. Justice Kennedy wrote for the majority that a Summers detention incident to the execution of a search warrant extends only to the immediate vicinity of the place to be searched. He wrote that the law-enforcement reasons for the Summers rule--officer safety, facilitating the completion of the search, and preventing flight--all work within that geographic limit, but not a mile outside of it. He also wrote that a detention away from the search site involved a greater intrusion into privacy.
Ruling that Summers did not authorize the search, Justice Kennedy wrote that the officers would need to rely on some other rationale for the detention and pat-down--perhaps Terry v. Ohio and reasonable suspicion. But while the trial court denied Bailey's motion on both Summers and Terry grounds, the Second Circuit affirmed on Summers alone. Thus the Supreme Court didn't reach the Terry issue. All this means that the keys could ultimately be admitted.
Justice Scalia, joined by Justices Ginsburg and Kagan, wrote to say that, contrary to the dissent's approach, the Summers rule is categorical, and not susceptible to case-by-case interest balancing. Summers, he wrote, "embodies a categorical judgment that in one narrow circumstance--the presence of occupants during the execution of a search warrant--seizures are reasonable despite the absence of probable cause."
Justice Breyer, joined by Justices Thomas and Alito, dissented. He wrote that the officers acted reasonably, considering the flight risk, possibility of destruction of evidence, and possibility of injury.
Supreme Court Rules Child Return Order Not Moot on Appeal
A unanimous Supreme Court ruled today that a district court's order that a child return to his or her home country is not moot on appeal just because any relief ordered on appeal is unlikely to get the child back to the U.S. The ruling means that the lower court can determine whether the district court's return order was in error--potentially resulting in a re-return order that may or may not have any practical effect.
The case, Chafin v. Chafin, arises out of an international custody dispute between a U.S.-citizen-dad and a U.K.-citizen-mom. Under the Hague Convention on the Civil Aspects of International Child Abduction, which is designed to work these things out, a federal district court ordered the return of the child to her country of "habitual residence," Scotland, and mom took her there. Dad appealed, but the circuit court dismissed the case as moot, saying that it "became powerless" to grant relief. What it meant was that it couldn't reverse the district court and order it to re-return the child (because the courts don't have authority for re-return), and in any event a re-return order wouldn't be effective
The Supreme Court disagreed. Chief Justice Roberts wrote for a unanimous Court that a case doesn't become moot just because a court may not have authority to grant the requested relief (in this case a re-return, which goes to the merits, not mootness, according to the Court) or just because the court's order is unlikely to have any practical effect.
Mr. Chafin's claim for re-return--under the Convention itself or according to general equitable principles--cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction . . . and his prospects of success are therefore not pertinent to the mootness inquiry.
As to the effectiveness of any relief . . . even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions. No law of physics prevents E.C.'s return from Scotland . . . and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States.
Op. at 8-9 (citations omitted).
Justice Ginsburg, joined by Justices Scalia and Breyer, wrote in concurrence that international shuttling is no good for a child, and that Congress and the courts might work out a more streamlined procedure to protect against putting a child in this position in the first place.
Court to Test Individual Campaign Contribution Limits
The Supreme Court today said it would take up McCutcheon v. FEC, a case testing federal biennial limits on contributions to candidates, PACs, parties, and committees. (The jurisdictional statement is here.) While the case directly challenges biennial limits under the Buckley framework, the petitioner also preserved the issue whether Buckley's contribution-expenditure scrutiny distinction violates free speech.
It's not clear how much the case could matter to the sheer amount of money in politics. That's because contributors already have ample and growing opportunities to contribute to proliferating super-PACs and 501(c)(4) organizations. But if the Court takes on Buckley's contribution-expenditure distinction, the ruling could be quite significant both for First Amendment doctrine and money in politics. (That distinction means that the government can regulate contributions to prevent political corruption, but expenditures get full First Amendment protection.) It could be the next step after Citizens United in further opening the money spigot.
The case directly attacks federal biennial expenditure limits under the Bipartisan Campaign Reform Act. BCRA limits an individual's contribution to a candidate, a national party, a local party, and a PAC in each calendar year. These are called "base limits." But BCRA also limits an individual's total contributions to all federal candidates, party committees, and PACs every two years. These are the "biennial limits."
McCutcheon argues that the biennial limits restrict his ability to contribute to as many candidates and parties as he'd like, thus restricting his First Amendment rights. In particular, he says that the biennial limits under BCRA have no justification and therefore must be struck.
To see why, start with the old biennial limit upheld by the Court in Buckley. Back then, there were no base limits for contributions to PACs or national or local parties. (There was a base limit on contributions to candidates, though--$1,000 per.) McClutcheon argues that the Court in Buckley upheld the biennial limit because it was designed to prevent a contributor from circumventing the base limit on candidates. How? By contributing massive amounts through political committees that would simply funnel the money to the candidate.
McClutcheon says that BCRA--with its base limits and biennial limits on candidates, committees, PACs, and parties--can't be designed to prevent circumvention in the same way. This is because BCRA's base limits themselves restrict circumvention. (BCRA's base limit on a party, e.g., prevents a contributor from funneling massive amounts of money through the party to the candidate). McClutcheon says that the only effects of BCRA's biennial limits are to restrict the total amount of cash he can spend and, with the base limits, to restrict the number of candidates, committees, PACs, and parties that he can spend on--thus violating his First Amendment rights. (E.g.: He would've liked to give $25,000 each to the RNC, the National Republican Senatorial Committee, and the National Republican Congressional Committee before the 2012 election, but that would have exceeded the biennial limit.) McClutcheon says his case against the biennial limit on contributions to candidates is even stronger, because even Buckley didn't hold that there's an anti-circumvention interest in that limit. He claims that that limit serves only to prevent him from contributing to as many people as he'd like.
McClutcheon also argues that the biennial limits are too low.
The Court could rule on the narrow issue whether the biennial limits violate Buckley's anti-circumvention interest (which supported the old biennial limit). This kind of ruling (if, as expected, it overturns the biennial limits) could give contributors another way to spend more money in politics, but it would retain Buckley's contribution-expenditure scrutiny distinction. Alternatively, the Court could take on BCRA's biennial limits and Buckley's contribution-expenditure distinction. This could fundamentally change how we approach campaign finance restrictions under the First Amendment (even if it's not obvious that it would necessarily result in a ton more money in politics).
Daily Read: Heins on Academic Freedom
The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings. Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks.
For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics. Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose. Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.
And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read.
February 18, 2013
"Lincoln" Errs . . . And Corrects Errors
In a particularly effective scene in a movie with many more of them, President Abraham Lincoln holds aloft a pen for emphasis and forcefully declares his intent to soon sign the 13th Amendment, abolishing slavery. The problem is that presidents do not sign constitutional amendments. Abraham Lincoln, the best lawyer to ever serve as the nation's chief executive, undoubtedly knew this. He would not have declared his intention to sign an amendment that was not his to sign.
But Zelinsky's willing to cut screenplay author Tony Kushner some slack:
Mr. Kushner's liberties with the details of the Constitution served a legitimate artistic mission by graphically portraying Lincoln's personal commitment to the abolition of slavery. As the movie makes clear, the abolition of slavery via the 13th Amednment was not inevitable. Lincoln's commitment was decisive.
As Zelinsky points out, the alternative--in which Lincoln might have said "something along the lines of wanting Congress to promptly send the 13th Amednment to the states"--is "not the stuff on which Oscar nominations are made." Good point.
(Zelinsky also references another error: the movie's portrayal of Connecticut congressman as voting against the Thirteenth Amendment. In fact, Connecticut's representatives voted for it.)
But if the film committed errors, it also helped correct them--or at least one of them. According to The Atlantic Wire, a recent immigrant from India, Dr. Ranjan Batra, after seeing the movie, researched and determined that Mississippi never ratified the Thirteenth Amendment. Last week it did.
Daily Read: Reinstein on Executive Power and Haiti
Today we celebrate "Presidents' Day" and ConLawProfs contemplating executive power might do well to consider the Haitian Revolution (1791-1804) as a formative experience.
In his new article, Slavery, Executive Power and International Law: The Haitian Revolution and American Constitutionalism, available in draft on ssrn, ConLawProf Robert Reinstein argues that the "six administrations from George Washington through John Quincy Adams responded to the slave revolt and establishment of Haitian independence in ways that greatly expanded executive power."
Indeed, as Reinstein reminds us, the first sole executive agreements were made by Adams with regard to Haiti (predating the seizure of the schooner The Wilmington Packet by six months). Reinstein contends that the Haitian history is important because
Many of the most controversial questions presidents face in the modern era—whether to support regime change, use military force to protect American interests abroad, intervene in civil wars, arm foreign rebellions, form secret agreements with governments or belligerents, comply with obligations of international law—were first faced in the American reactions to the Haitian slave revolt.
Yet as Reinstein observes, the history also reveals conflicting executive interests, at times favoring domestic fear of a similar slave-revolt and at other times favoring geopolitical (and capitalist) interests. At the center - - - not surprisingly - - - is Thomas Jefferson, who vowed to reduce Haiti's charismatic leader Toussaint L'ouverture to "starvation."
But Reinsten also centers the Supreme Court's hostility to the establishment of the second independent nation in the Western Hemisphere. Reinstein writes that as "Congress debated the first Haitian embargo bill, a Representative asked: “Have these Haytians no rights?”" Reinstein concludes that the "answer ultimately given by the United States government was unequivocal: “No.”"
An important - - - and oft-neglected - - - history of executive power as well as judicial power worth a read on Presidents' Day.
[image of Toussaint L'ouverture from a French engraving circa 1802 via]
February 17, 2013
Is the First Amendment Civil Rights Claim in Jeopardy?
Judge James E. Boasberg (D.D.C.) in two separate cases in the last four weeks or so rebuffed an argument by the U.S. Attorney's Office for the District of Columbia that a plaintiff has no Bivens claim against federal officers for violation of First Amendment free speech rights. The holdings in these cases were unremarkable, given the state of circuit law and the approach in other circuits to the question--which recognize a plaintiff's cause of action to bring a First Amendment claim against federal officers. But the government's argument that the plaintiffs in these recent cases lacked this cause of action raises the specter that First Amendment Bivens claims could be on the chopping block.
(A Bivens claim is a suit against a federal officer for a violation of a constitutional right. There's no statutory authorization for this kind of suit (as there is against a state officer for violation of a constitutional right, under 42 U.S.C. Sec. 1983), and so the Supreme Court has implied a cause of action for cases against federal officers involving certain constitutional rights. "Bivens" refers to the pioneering case imlying such a cause of action, Bivens v. Six Unknown Named Agents.)
It's hardly surprising that the federal government would press the position that Bivens claims are limited and ought not to be extended beyond those discrete constituitonal claims where the Supreme Court has recognized them. And it's not news that this Supreme Court might not be particularly amenable to Bivens claims beyond those that it already recognized (and it hasn't recognized a Bivens claim under the First Amendment).
But the government's argument in the two recent D.C. District cases may suggest a new line of attack, based on language in a recent Supreme Court case, Ashcroft v. Iqbal.
Iqbal famously reaffirmed that there's no vicarious liability under Bivens. It also famously said that Bivens complaints need to meet a certain threshold of specificity--a new, higher threshold that made it more difficult to bring these kinds of claims. But it also said something else: It said that the Court is reluctant to extend Bivens to claims that it has not yet recognized, and it noted that it had not yet recognized a Bivens claim based on the First Amendment. The Court wrote:
Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability "to any new context or new category of defendants." [Citations omitted.] That reluctance might well have disposed of respondent's First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, [citation omitted], we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas, 462 U.S. 367 (1983).
Iqbal at 11. (In Bush, the Court rejected the petitioner's Bivens-free speech claim because there was a comprehensive statutory scheme already available to him.)
The government seized on this language from Iqbal in the two recent cases in the D.C. District and argued that it raised the question whether long-standing circuit law recognizing a First Amendment claim under Bivens was still viable.
Judge Boasberg rejected the argument:
Even if Defendants are correct in predicting the Supreme Court's response to questions not yet before it, this Court cannot accept its invitation to depart from this Circuit's binding precedent.
That circuit precedent goes back to Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977). And as Judge Boasberg wrote, the Third and Ninth Circuits have also recognized First Amendment claims pursuant to Bivens.
This government line of attack, based on language in Iqbal, may not mean anything other than the government predictably arguing for a narrow Bivens doctrine. Or it may be the start of a new and revived effort to put Bivens-First Amendment claims that are recognized by the lower courts before the Supreme Court--and on the chopping block.
Judge Boasberg's ruling in Bloem v. Unknown Department of the Interior Employees allowed an Occupy-DC protester's claim to go forward against Interior employees for confiscating his property from the McPherson Square protest site. Judge Boasberg's ruling in Hartley v. Wilfert allowed a protester's claim to go forward against Secret Services officers who stopped her and asked for personal information as she tried to communicate a message about sex discrimination in law enforcement in front of the White House. In addition to ruling that Bivens extended to both First Amendment claims, Judge Boasberg also rejected the officers' qualified immunity claims.
February 17, 2013 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack
Fordham Symposium on New Originalism
The schedule includes an all-star line-up. Here's the description:
Originalism--the thesis that legitimate constitutional interpretation is bound by original meaning or intent--has emerged as an influential and controversial approach to how we interpret our Constitution. While some claim that constitutional interpretation and legitimacy require unearthing the original meaning or intent, others assert that tethering current citizens and interpreters to the comprehension of long-dead people is the antithesis of good and proper democratic government.
The Fordham Law Review is proud to present a symposium gathering a remarkable group of legal scholars, historians, and philosophers to discuss if, how, and why Originalism should inform constitutional analysis.