Constitutional Law Prof Blog

Judge Rules Nondisclosure Provision of National Security Letter Statute Unconstitutional

Judge Susan Illston (N.D. Cal.) ruled last week in In Re National Security Letter that the nondisclosure and judicial review provisions of the National Security Letter Statute violated free speech.  But she stayed the ruling pending Ninth Circuit review.

National Security Letters are those statutory inventions that require a wire or electronic communication service provider to turn over specified categories of subscriber information if the FBI certifies that the records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.  The statute also prohibits an NSL recipient from disclosing the NSL, so long as the FBI certifies that disclosure could threaten national security.  (This is the nondisclosure provision.)  Finally, it provides for judicial review NSLs and nondisclosure orders, but puts a thumb on the scale in favor of the government in review.  (This is the judicial review provision.)

Judge Illston ruled that the nondisclosure provision "clearly restrains speech of a particular content--significantly, speech about government conduct," even if it is not a "classic prior restraint" or a "typical" content-based restriction on speech.  As such, she ruled, the provision is subject to the Freedman v. Maryland safeguards--that a restraint prior to judicial review can be imposed only for a specific period, that expeditious judicial review of the decision must be available, and that the government must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. 

But Judge Illston said that the nondisclosure provision didn't meet those safeguards, in particular, it didn't provide that the government had to initiate judicial review and bear the burden of proof.  Moreover, she ruled that it swept too broadly, prohibiting recipients from disclosing even the mere fact of their receipt of an NSL.

As to judicial review, Judge Illston wrote that "the statute impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders," by limiting how a court might set aside an NSL. 

Judge Illston concluded that there was no way to read the nondisclosure provision to save it, and thtat it was not severable from the rest of the act.  But she stayed her ruling pending Ninth Circuit consideration of the case.

SDS

Arguments in Arizona's Proof-of-Citizenship Requirement to Register to Vote

The Supreme Court heard oral arguments today in Arizona v. Inter Tribal Council of Arizona, the case testing whether the federal National Voter Registration Act preempts Arizona's requirement that voter applicants show additional proof of citizenship in order to register to vote.  We posted a preview here.

If the questions from the bench are any indication, this could be a very close one.  Justice Sotomayor and Kagan seemed to line up squarely behind the respondents (and against Arizona's proof-of-citizenship requirement).  Justices Ginsburg and Breyer did too, but perhaps a little less forcefully.  On the other side, Justice Scalia seemed set with Arizona on the merits (focusing on the NVRA text), but he wondered why the state didn't challenge the EAC's rejection of its state-specific proof-of-citizenship requirements earlier, right after the EAC rejected them.  Chief Justice Roberts and Justice Alito seemed to lean toward Arizona, too, largely for pragmatic reasons, suggesting that the NVRA scheme wouldn't make a lot of sense by the respondent's reading.  Justice Kennedy seemed concerned that Arizona's position could destroy the "utility of the single form" (on the one hand), but also that the Ninth Circuit applied a preemption test under the Elections Clause that was too federal friendly (on the other).  

The Justices were concerned about everything from legislative purpose behind the NVRA, to legislative language, to the role of the EAC (the administrative agency that approves the federal form and state-specific additions to it), to Arizona's failure to challenge the EAC's rejection of its state-specific citizenship requirements.  The standard for Elections Clause preemption (as opposed to more ordinary Supremacy Clause preemption) got very little attention (notably just from Justice Kennedy).

Justices Sotomayor and Kagan seemed to be the most active and skeptical in questioning Arizona's attorney.  They asked whether Arizona's additional citizenship requirements wouldn't undermine the purpose of the NVRA, to ease and simplify voter registration; whether Arizona is actually accepting and using the federal form (as required by the NVRA), especially when it apparently rejects mail-in ballots that don't satisfy Arizona's extra citizenship requirements; and whether Arizona's position would make the federal form "just another hoop to jump through."  (Those were Justice Kagan's words.  Justice Kennedy earlier suggested a similar sentiment--"But otherwise, the whole utility of the single form is missing--is gone"--but framed it as a question about what opposing counsel would argue.)  

Justice Breyer wanted to know how Arizona accepted and used the federal form's attestation-under-perjury requirement, again, as required by the NVRA, suggesting that Arizona wasn't accepting and using it, and therefore not complying with the NVRA.

Justice Scalia asked why Arizona didn't challenge the EAC's rejection of its state-specific citizenship requirements earlier--after the EAC rejection, and not now, only after voters challenged Arizona's requirements.

On the other side, Justice Alito wondered how the federal form alone could ensure that an applicant was qualified--giving an example of a minor who completed and signed the form--suggesting that the federal form alone wasn't sufficient.  Justice Scalia looked to the language of the NVRA--states "may require only"--and argued that the "may" made it permissive--and that state's therefore could add requirements.  Chief Justice Roberts and Justice Alito wondered whether under the respondent's reading and the government's reading the NVRA wouldn't create an unworkable system, with the possibility of a state-form voter registration list and a federal-form voter registration list in each state.

Chief Justice Roberts asked whether the respondent's reliance on the EAC's decision to reject Arizona's request to include its citizenship requirement wasn't undermined by the EAC's bad decision (according to respondent) allowing Louisiana to supplement the requirements on the federal form.  (Arizona first raised Louisiana's state-specific requirement, approved by the EAC, to include a driver's license number or Social Security number or, if neither is available, to attach certain other documents as an argument that a requirement for additional documents does not violate the NVRA.  The Court spent some time trying to figure out if the parties thought this was a good decision, and, if so, why Louisiana's requirement is the same or different than Arizona's.)  

SDS

D.C. Circuit Allows FOIA Case for Drone Files to Move Forward

The D.C. Circuit today rejected the CIA's non-response to the ACLU's FOIA request for documents related to the government's drone program and allowed the case to move forward.  Still, the ruling doesn't ensure that anyone will actually receive documents.  That's a question for the district court on remand.

The case, ACLU v. CIA, involves the ACLU's FOIA request for "records pertaining to the use of unmanned aerial vehicles ('UAVs')--commonly referred to as 'drones' . . .--by the CIA and the Armed Forces for the purpose of killing targeted individuals."  The CIA responded with a Glomar response--declining either to confirm or deny the existence of any responsive records.  The CIA claimed that confirming the existence of documents would confirm that it is involved in, or interested in, drone strikes, while denying the existence would confirm the opposite.  According to the CIA, its involvement or interest in drone strikes fell under exceptions to the FOIA.

The D.C. Circuit disagreed.  It ruled that the government had already publicized the targeted-killing-by-drone program, and that even the CIA chief had revealed its existence and the Agency's interest in it.  Because the reasons for withholding the documents wasn't really a reason, in light of these disclosures, the court said that the CIA can't hide behind a Glomar response.  

Moreover, the CIA justified its Glomar response on the ground that it was necessary to keep secret whether the CIA itself was involved in, or interested in, drone strikes.  But the ACLU's request swept more broadly--to any government drone strikes.  And the CIA's Glomar response also swept more broadly--too broadly.

The court also noted that the government appears to have acknowledged that the CIA has some records that could be responsive to the FOIA request.

The court remanded the case to the district court to sort out what documents the CIA has, and which ones, if any, it might have to turn over.  It's not clear that the CIA will ultimately have to turn over any documents.  The court gave specific suggestions to the district court as to how it might evaluate CIA records and determine which ones it has to release.

SDS

Can States Require Proof of Citizenship to Vote?

Arizona is once again before the Supreme Court, on Monday, with a major federalism case, this time testing whether federal law preempts the state's efforts to add a proof-of-citizenship requirement, over and above the federal requirement, to its voter registration application.  The case, Arizona v. Inter Tribal Council of Arizona, asks whether the preemption standard under the Elections Clause is the same as the ordinary preemption standard under the Supremacy Clause, and whether the National Voter Registration Act preempts Arizona's proof-of-citizenship requirement.  

The former issue--going to the standard of preemption under the Elections Clause--is an important one.  The Court puts a thumb on the scale against preemption in ordinary Supremacy Clause preemption cases.  This case will tell us whether states get that thumb in Elections Clause cases, too.  If so, and if the Court rules Arizona's proof-of-citizenship requirement not preempted, we're likely to see certain states move toward more requirements like Arizona's, making it tougher for certain citizens to vote.

Here's an excerpt from my preview of the case in the ABA Preview of United States Supreme Court Cases (with permission):

ISSUE

 May Arizona require applicants for voter registration to provide additional evidence of U.S. citizenship without conflicting with the requirements of the National Voter Registration Act?

FACTS

Congress enacted the National Voter Registration Act, the “NVRA,” or the “Motor Voter Act,” in 1993 in order to enhance voter participation by eligible citizens in federal elections while at the same time protecting the integrity of the electoral process. To these ends, the NVRA requires states to accept three kinds of registration applications from would-be voters in federal elections. First, the NVRA requires states to treat any application for a driver’s license as an application for voter registration. Next, it requires states to accept mail-in applications. Finally, the NVRA requires states to accept in-person applications at sites designated by state law.

In connection with these three methods, the NVRA provides for the creation of certain voter registration applications. Thus the NVRA requires states to create a combined driver’s license and voter registration application form commonly called the “Motor Voter Form.” (The Motor Voter Form is not at issue in this case.) The NVRA also directs the U.S. Election Assistance Commission, the “EAC,” to create the Federal Form, a nationally uniform voter application that applicants can use to register by mail or in person at designated locations. The NVRA requires that the Federal Form “shall include” a statement that specifies each eligibility requirement (including citizenship), contains an attestation of eligibility, and requires the applicant’s signature. It says that the Federal Form “may not include any requirement for notarization or other formal authentication.” And it says that the Federal Form “may require only such identifying information . . . and other information as is necessary to enable the appropriate state elections official to assess the eligibility of the applicant.” The NVRA requires states to “accept and use” the Federal Form, but it also allows a state to “develop and use” its own form, so long as the state form meets all of the NVRA criteria for the Federal Form. (Even if a state develops and uses its own form, however, the NVRA still requires every state to “accept and use” the Federal Form.) Moreover, a state may ask the EAC to add state-specific instructions to the Federal Form.

The EAC-created Federal Form specifies each eligibility requirement, including U.S. citizenship, but does not, by its plain terms, require proof of citizenship. Thus the Federal Form requires an applicant to tick a box that says that the applicant is a U.S. citizen and to swear or affirm, by signature, that he or she is a U.S. citizen and that “the applicant, to the best of his or her knowledge and belief, meets each of his or her state’s specific eligibility requirements.” The Federal Form’s state-specific instructions for Arizona require an applicant to include the number of his or her valid Arizona driver’s license or non-operating identification license, or the last four digits of his or her Social Security number. The state-specific instructions say that if an applicant does not have these numbers, “[a] unique identifying number will be assigned by the Secretary of State.” (The Federal Form, with Arizona’s state-specific instructions, is here.) In short, the Federal Form relies on an applicant’s attestation, without further proof, to determine U.S. citizenship. Arizona’s state-specific instructions only require proof if an applicant has an Arizona driver’s license or identification license, or a Social Security number.

In 2004, Arizona sought to add a proof-of-citizenship requirement. Thus Arizona voters approved Proposition 200, requiring applicants for voter registration to provide evidence of U.S. citizenship beyond the attestation requirement and the state-specific instructions in the Federal Form. In particular, Proposition 200 says that an applicant must provide his or her driver’s license number, non-operating identification number, a number associated with Native American tribal status, his or her certificate of naturalization number, or a legible photocopy of his or her U.S. birth certificate or passport. (Proposition 200 also requires registered voters to present identification in order to cast their ballots at the polls. The voter-ID component of Proposition 200 is not at issue in this case.) By its terms, this proof-of-citizenship requirement applies to both the federal form and to Arizona’s state form.

About a year after Arizona voters enacted Proposition 200, the U.S. Department of Justice precleared it under the Voting Rights Act. Arizona then asked the EAC to include its proof-of-citizenship requirement on the state-specific instructions on the federal form. The EAC declined. (The Executive Director of the EAC initially declined the request, stating that the NVRA preempted the requirement. The full EAC later upheld this decision.)

Nevertheless, Arizona implemented the new proof-of-citizenship requirements in Proposition 200 with respect to its state-specific voter registration application form and with respect to the Federal Form. As to the state-specific form, Arizona now specifically requires the proof of citizenship specified in Proposition 200. Its instructions say that an applicant must provide a driver’s license or non-operating identification license number, or, if those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Indian tribal membership. The instructions say that without this proof of citizenship, “the form will be rejected.” (Arizona’s state specific form is here.) As to the Federal Form (which, again, did not change in the wake of Proposition 200), Arizona officials now ask Federal Form applicants for evidence of citizenship pursuant to Proposition 200 whenever their Federal Form does not include such evidence of citizenship.

Just to be clear: Before Proposition 200, Arizona required only a driver’s license or non-operating identification license, or, when those were not available, a “unique identifying number . . . assigned by the Secretary of State,” in order to register to vote. After Proposition 200, Arizona now requires a driver’s license or non-operating identification license, or, when those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Tribal membership. Thus Proposition 200 added a significant proof-of-citizenship requirement, but only for those applicants who do not have a driver’s license or non-operating identification license.

Soon after Proposition 200 passed, two groups of plaintiffs sued, arguing, among other things, that the new proof-of-citizenship requirements were preempted by the NVRA. In particular, the plaintiffs argued that the new proof-of-citizenship requirements went beyond the requirements of the NVRA in a way that conflicted with the NVRA. In a first round of litigation, the plaintiffs’ case went to the Supreme Court on preliminary motions, and the Court remanded it for a determination on the merits. In the second round, on remand, the district court ruled in favor of Arizona on the plaintiffs’ preemption claim. The Ninth Circuit reversed. This appeal followed.

CASE ANALYSIS

This case tests the boundary between congressional authority and state authority in the special context of regulation of federal elections. That boundary is set in the Constitution’s Elections Clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” In other words, states get the first crack at regulating the mechanics of federal elections, but Congress has ultimate authority to override, or preempt, state regulation. The framers gave Congress this special power over federal elections in order to safeguard against potential state efforts, through manipulation of their election laws, to undermine the national government. (At the extreme, the framers were concerned that states could frustrate the very creation of the national government by neglecting to hold federal elections.) Here, the Elections Clause governs, because Congress enacted the NVRA pursuant to its Elections Clause power.

The Supreme Court first examined congressional authority to preempt state law under the Elections Clause in Ex Parte Siebold, 100 U.S. 371 (1879). The Court in that case said that federal law preempts state law whenever they conflict: “the laws of the State, in so far as they are inconsistent with the laws of Congress on the same subject, cease to have effect as laws.” Over a century later, the Court in Foster v. Love, 522 U.S. 67 (1997), reaffirmed this principle and held that federal law setting the date for congressional elections (the Tuesday after the first Monday in November) preempted a Louisiana statute that established an open primary in October with a run-off on Congress’s specified election day only if the primary failed to produce a majority candidate.

While Siebold and Foster go specifically to Elections Clause preemption, the Court has also developed an approach to preemption under the Supremacy Clause. According to that approach, the Court seeks to preserve the “delicate balance” between the states and federal government, especially in those areas traditionally under state control. Thus under Supremacy Clause preemption the Court applies a “presumption against preemption” and holds that federal law preempts state law only when it is the “clear and manifest” purpose of Congress to do so. In short, the Court puts a thumb on the scale against preemption in its Supremacy Clause analysis.

The Court has not specifically said whether its approach to preemption under the Supremacy Clause applies also to preemption under the Elections Clause. If so, Congress would face a higher bar in preempting state law under the Elections Clause; if not, Congress could more easily preempt state law.

The parties dispute this, with Arizona arguing for the higher Supremacy Clause standard, and the plaintiffs-respondents arguing for a lower preemption standard. They also dispute whether under either standard Proposition 200 actually conflicts with the NVRA, and thus whether the NVRA preempts it.

[Summary of specific arguments omitted.]

SIGNIFICANCE

This case tests the boundary between congressional authority and state authority in the special context of the Elections Clause. The Supreme Court has not ruled directly on this issue; in particular, it has not specifically set a standard for federal preemption of state law under this Clause. Thus this case is important because the Court’s ruling will (at least partially) fill this void and tell us something about the scope and extent of congressional authority, and therefore the scope and extent of state authority, under this Clause.

That, in turn, is important, because it will set the standard for federalism in relation to regulation of federal elections. If the Court borrows and applies the standard for preemption under the Supremacy Clause—with all its deference to state sovereignty, in the interest of maintaining the “delicate balance” between the states and federal government—the states could have more latitude to regulate elections, even affecting the composition of the federal government. (Various state efforts to strategically manipulate voting requirements in the 2012 elections in order to seek political advantage in federal elections stand as a stark and recent reminder of how state regulation could affect the federal government—exactly what the framers were concerned about.) But on the other hand if the Court applies a lower standard, one without deference to state sovereignty or considerations of federalism, the ruling could restrict the states in how they regulate elections, even restricting states from imposing additional proof-of-citizenship requirements (as in this case).

Still, the standard that the Court sets for preemption may be distinct from its ruling on preemption in this case. Whatever standard the Court adopts, its ruling in this case will tell us how much flexibility states have in adding to the NVRA requirements. If the Court holds that the NVRA does not preempt Proposition 200, this could invite states to impose all manner of additional requirements, potentially undercutting the congressional purpose of uniformity in voter registration in the NVRA and, again, potentially affecting the very composition of the federal government. But if the Court holds that the NVRA preempts Proposition 200, the ruling will restrict states in imposing additional requirements and will underscore national uniformity in voter registration.

In the end, whatever the Court rules, Congress could get the last word. That’s because Congress can always go back and rewrite its legislation in response to any preemption ruling from the Court. Here, Congress could rewrite the NVRA to more explicitly preempt state requirements like those in Proposition 200 (on the one hand), or to allow those requirements (on the other). In this way, Congress could effectively undo any decision in this case. The Court’s ruling will be important, to be sure, but it will not necessarily be the final decision on this issue.

Outside of these considerations, this case is also important because it comes to the Court just one month after the Court heard oral arguments in Shelby County v. Holder, testing the constitutionality of the preclearance provision in the Voting Rights Act. A bare majority of justices seemed skeptical in those arguments that preclearance and the related coverage formula were still necessary in 2013 to enforce the constitutional prohibitions against voting discrimination. In particular, a number of justices expressed concern about congressional infringement on state sovereignty and equality among the states. Between this case and Shelby County, we will learn quite a bit about where the Roberts Court stands on federalism and voting rights.

This case also comes just a year after Arizona v. U.S., 567 U.S. ___ (2012), another case testing Arizona’s authority, as against the federal government, to regulate non-citizens, when the regulation spills over and affects how Arizona treats U.S. citizens. Arizona v. U.S. involved the state’s efforts to clamp down on illegal immigration by authorizing its officers to check the immigration status of individuals that they detain and to regulate undocumented aliens in various ways. That case was a partial victory for Arizona and a partial victory for the United States. This case is yet a different test of Arizona’s authority, as against the federal government, to address illegal immigration.

SDS

 

"Equality of States" in the VRA Challenge

"Equality of the states" reared its head recently in oral arguments in Shelby County v. Holder, the case testing congressional authority to reauthorize the preclearance provision of the Voting Rights Act.  The traditionally conservative Justices all (save Justice Thomas) expressed different concerns related to the provision's different treatment of the states--or, how preclearance violates the principle of "equality of the states."  (Preclearance under Section 5 of the VRA applies only to covered jurisdictions under Section 4(b) of the VRA.  Only covered jurisdictions, not all states, are required to preclear their election law changes with DOJ or the D.C. District court.)  

But where does this idea of equality of the states come from?

David Gans over at the Constitutional Accountability Center draws on a recent piece by Adam Liptak and argues that Congress violates a principle of equality of the states all the time--most notably by providing dramatically different levels of funding, per capita, to different states.  Nobody makes a constitutional case out of this.  

Moreover, Gans argues that "[t]he Supreme Court has never interpreted the Constitution to require equality among the states outside the very narrow context of the admission of new states.  It is now black letter law that 'the doctrine of equality of states . . . applies only to the terms upon which the states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.'"

For more on that point, and how the Court mangled the "equality of the states" quote in Northwest Austin Municipal Utility District v. Holder, check out Zachary Price's contribution to the SCOTUblog symposium on Shelby County, and Federalism and the Voting Rights Act at the ACS blog.

SDS

Irons's Case for Repudiation of the Japanese American Internment Cases

Professor Peter Irons (UCSD Emeritus, and founder and Director Emeritus, Earl Warren Bill of Rights Project, UCSD) calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu in his recent piece Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases.

The Supreme Court in those cases upheld convictions of Japanese Americans for violations of the military curfew and exclusion orders issued by President Franklin D. Roosevelt on February 19, 1943.

Irons initiated and served as counsel to Fred Korematsu and Gordon Hirabayashi in their 1983 coram nobis actions, which led to the vacation of their wartime convictions.  Irons also wrote Justice at War: The Story of the Japanese American Internment Cases and edited Justice Delayed: The Record of the Japanese American Internment Cases.

Irons now calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu, an unprecedented act, but one that Irons says is appropriate here:

This essay presents the case for the Supreme Court to . . . formally repudiat[e] its decisions in the Japanese American internment cases, issuing a public statement acknowledging that these decisions were based upon numerous and knowing acts of governmental misconduct before the Court, and were thus wrongly decided.  These acts of misconduct, documented and discussed herein, were committed by several high-ranking military and civilian officials (including the Solicitor General of the United States) before and during the pendancy of the internment cases before the Supreme Court.  Consequently, the Court was forced to rely in making its decisions on records and arguments that were fabricated and fraudulent.  Sadly, the Court's unquestioning acceptance of these tainted records, and its upholding of the criminal convictions of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu, has left a stain on the Court's integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government--to their credit--have now done.

Irons explains why Hirabayashi, Yasui, and Korematsu couldn't get the Supreme Court's rulings overturned, and thus why his efforts are now necessary:

Admittedly, a public repudiation of the Japanese American internment cases would be unprecedented, considering that the cases are technically moot, since the Solicitor General of the United States at the time, Charles Fried, did not ask the Court to review the decisions of the federal judges who vacated the convictions, pursuant to writs of error coram nobis that were filed in all three cases in 1983 and decided in opinions issued in 1984, 1986, and 1987.  The government's decision to forego appeals to the Supreme Court left the victorious coram nobis petitioners in a classic Catch-22 situation: hoping to persuade the Supreme Court to finally and unequivocally reverse and repudiate the decisions in their cases, they were unable--as prevailing parties in the lower courts--to bring appeals to the Court.

Irons argues that the Court "has both the inherent power and duty to correct its tainted records through a public repudiation of the wartime decisions."

This is a piece in the finest tradition of making academic work relevant to the real world--what Irons does so well.  It's a persuasive piece of history, scholarship, and activism by somebody who helped make--and continues to make--that story.  Highly recommended.

SDS

[Image: Gordon Hirabayashi, Minoru Yasui, Fred Korematsu]

Sixth Circuit Says Holiday Display Doesn't Establish Religion or Violate Free Speech

The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.

The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center.  The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene.  The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused.  So the Foundation asked the Mayor to include its sign in the display; the sign read:

At this season of THE WINTER SOLSTICE may reason prevail.  There are no gods, no devils, no angels, No heaven or hell.  There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.

The Mayor declined.  He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment.  The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech.  The Sixth Circuit rejected the claims.

The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally.  (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling."  Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.) 

The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech.  The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.

SDS

Court Seems Poised to Overturn Voting Rights Act

The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act.  If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.

Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws.  This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race.  This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination.  (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA.  Section 2 is not at issue in this case.)

Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments.  In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws.  Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.

The arguments were lively, to say the least.  The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine.  And they all seemed to have their minds made up, more or less.  If there are swing votes, look to Chief Justice Roberts or Justice Kennedy.  Although they seemed set in their positions, they seemed perhaps the least set.  

Substantively, there were few surprises.  Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument).  So these points that came up today are familiar:

• Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
• Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
• Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
• Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
• Whether with a string of reauthorizations preclearance will ever not be necessary.

On this last point, it was clear that for some justices the government was in a tough spot.  On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide.  But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary.  (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)

All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.  

This doesn't mean, necessarily, that the whole scheme will go down.  There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b).  But this result would likely doom the whole scheme, in fact.  That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country.  Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.

There was a low point.  Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:

Now, I don't think that's attributable to the fact that it is so much clearer now that we need this.  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.  It's been written about.  Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

It's not exactly clear what's the "racial entitlement" in Section 5.  Section 5 is simply not an entitlement provision.  But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race?  If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes."  As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.

SDS

Eleventh Circuit Affirms Preliminary Injunction Against Florida's Mandatory Drug Testing of Welfare Recipients

In its unanimous panel opinion today in Lebron v. Sec't Florida Dep't of Children & Families, the Eleventh Circuit affirmed a district judge's grant of a preliminary injunction against Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits. 

Recall that 16 months ago, Federal District Judge Mary Scriven issued a preliminary injunction against the controversial law championed by equally controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant.   As the Eleventh Circuit panel made clear, it was not resolving "the merits of the constitutional claim" but only addressing "whether the district court abused its discretion in concluding that Lebron is substantially likely to succeed in establishing that Florida’s drug testing regime for TANF applicants violates his Fourth Amendment rights."

 

"Florida Scene" by Albert Bierstadt

 

Nevertheless, the Eleventh Circuit's opinion, authored by Judge Rosemary Barkett, left little room to argue that the statute could survive a constitutional challenge.  Barkett observed that in the "specific context of government-mandated drug testing programs, the Supreme Court has exempted such programs from the Fourth Amendment’s warrant and probable cause requirement only where such testing 'fit[s] within the closely guarded category of constitutionally permissible suspicionless searches,'" requiring that the "proffered special need for drug testing must be substantial,” citing Chandler v. Miller, 520 U.S. 305 (1997).  These special needs include "the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system’s care and tutelag."  The Eleventh Circuit easily found that welfare recipients did not fall into a special needs category:

The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”

The Eleventh Circuit also rejected Florida's "consent" argument.  Because under Florida’s program an applicant is required to sign an acknowledgment that he or she consents to drug testing, the State argued these consented-to searches are reasonable under the Fourth Amendment.  The Eleventh Circuit deemed Florida's reliance on Wyman v. James, 400 U.S. 309 (1971) "misplaced," because there the home visit by the social worker as a condition of receiving welfare benefits was not considered a search, while drug testing does constitute a search. 

The Eleventh Circuit briefly discussed "unconstitutional conditions," a theme that Judge Jordan, in a brief concurring opinion, echoed. But Jordan's discussion of unconstitutional conditions provided perhaps the only possibility that Florida might ever prevail, although interestingly relying largely upon First Amendment doctrine.

Judge Jordan's concurring opinion, however, questioned the outcome of any test requiring that the means chosen serve the government interest:

I am skeptical about the state’s insistence at oral argument that the Fourth Amendment permits the warrantless and suspicionless drug testing of all TANF applicants even if the evidence shows, conclusively and beyond any doubt, that there is 0% drug use in the TANF population. The state’s rationale—that such drug testing is permissible because the TANF program seeks to “move people from welfare to work”—proves too much. Every expenditure of state dollars, taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not being misused and that policy goals (e.g., the graduation of such students) are being achieved. Constitutionally speaking, the state’s position is simply a bridge too far.

The consensus of the federal judges who have considered the Florida statute's constitutionality does seem to be that the statute has definitely gone "too far."

RR
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No Standing to Challenge FISA Amendments on Domestic Surveillance, Supreme Court Holds

In a 5-4 opinion this morning in Clapper v. Amnesty International USA, the Supreme Court rejected the standing of Amnesty International to challenge domestic surveillance under FISA, the Foreign Intelligence Surveillance Act of 1978 and its amendments, often called FAA (FISA Authorization Amendments).

The ruling puts an end to this challenge to the government's surveillance authority under FISA and ups the ante for any future challenge.  The case says that a plaintiff can't bring a challenge by merely alleging likely surveillance; instead, a person has to show literal "certainly impending" surveillance or actual surveillance.  Either way, the case is very tough.  The problem is that a targeted individual has a real hard time showing that they will be or were subject to FISA surveillance--because it's secret.  That's the whole point.  But the Court said that the ruling doesn't completely insulate FISA from challenge: a person could challenge it after information obtained from surveillance leads to judicial or administrative proceedings; and an electronic communications service provider could challenge a government directive to assist in FISA-authorized surveillance.  Still, even if today's ruling preserves those potential challenges, it almost certainly forecloses any pre-surveillance challenge by a target.

Recall that the Second Circuit held that Amnesty and the other organizations did have standing under Article III.  The unanimous panel rejected the government's contentions that the challengers fears were speculative, writing that "importantly both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur."

The Supreme Court reversed.  In an opinion by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas), the Court wrote that the plaintiffs' claimed injuries were simply too speculative--at each link in the chain:

• First, it's too speculative whether the government will imminently target communications to which the plaintiffs are parties (especially because the plaintiffs have no actual knowledge of the government's targeting practices under the FISA);
• But even if, it's too speculative whether the government would use its FISA authority (as opposed to some other surveillance authority) to listen in on the plaintiffs' communications;
• But even if, it's too speculative whether the FISA court would authorize surveillance on the plaintiffs; and
• Finally even if, it's too speculative whether the government would succeed in surveillance under this authority.

The Court also rejected the plaintiffs' claim that they suffered harm because they already took measures to protect themselves against surveillance.  The Court said that plaintiffs can't sidestep the "imminent harm" requirement for standing (which they did not meet, as above) by claiming that they took steps to avoid a possible harm.

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.  Justice Breyer wrote that "there is a very high likelihood that Government, acting under the authority of [FISA], will intercept at least some of the [plaintiffs' communications.]"  Dissent at 6 (emphasis in original).  That's because the plaintiffs engage in communications that the government is authorized to intercept, there are strong motives to intercept, the government has intercepted similar communications in the past, and the government has the capacity to intercept.  Justice Breyer wrote that this "very high likelihood" is enough: the Court has never used the requirement for "certainly impending" harm according to its literal definition; instead, the Court's used this language more flexibly.

It's not clear whether the Court's ruling necessarily signals a tightening of standing requirements outside this unique context--a challenge to a government action, when, because of the very nature of the action, the target can't know with certainty that he or she has been subject to the government action.  Justice Breyer discusses Court cases (at length), including relatively recent cases, that employ a more flexible imminence requirement.  The Court did nothing to question the continued vitality of those cases.  Indeed, in footnote 5, page 16, Justice Alito wrote that to the extent that a "substantial risk" standard is different than a "clearly impending" standing for the imminence requirement, the plaintiffs here didn't meet either.

RR and SDS

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Is Anti-Solicitation Ordinance Content-Based?

The Fourth Circuit ruled last week in Clatterbuck v. City of Charlottesville that a lower court erred in dismissing a free speech challenge to Charlottesville's anti-solicitation ordinance.  The court remanded the case for further proceedings.

The ruling means that the case will go back to the district court to determine whether the City had an intent to censor speech in adopting the ordinance.  If so, the ordinance will be subject to strict scrutiny analysis (and almost certainly be struck); if not, it'll get the test for time-place-manner regulations in a public forum (and likely be upheld, at least by the district court, since it already upheld it under this test).

The case tests Charlottesville's ordinance that bans panhandling--solictation for immediate donation of anything of value--in a particular area on the Downtown Mall.  The lower court granted the City's motion to dismiss the case, ruling that the ordinance was a content-neutral time-place-manner regulation on speech.  The lower court came to this conclusion based in part on testimony at a city council meeting in favor of the ordinance, which it said showed that the City adopted the ordinance for content-neutral reasons (safety, and the like).  The testimony was not part of the record on the City's motion to dismiss.

The Fourth Circuit reversed.  It said that under its pragmatic approach to content neutrality, it looks both to the face of the ordinance and to the "censorial intent" behind it.  A challenger must show both in order to trigger strict scrutiny analysis of the ordinance.

Here, the court ruled that the ordinance is content-based on its face, because it distinguishes between solicitation of immediate donations and solicitation of donations in the future.  But it couldn't determine from the record on a motion to dismiss whether there was also "censorial intent."  And it ruled that the district court's evidence of censorial intent--the testimony at the city council meeting--shouldn't have been considered on a motion to dismiss (which wasn't converted to a motion for summary judgment). 

The court said that there wasn't enough evidence in the record at this early stage for it to determine censorial intent, and it remanded the case for further proceedings.

SDS

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.

SDS

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.

SDS

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.

SDS

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.

SDS

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?

SDS

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.

SDS

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. 

SDS

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.

SDS

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). 

SDS